Zambrano Carers and Access to Benefits

[appealalready]

http://www.landmarkchambers.co.uk/news.aspx?id=3227

Court of Appeal begins four day hearing on appeals challenging the compatibility with EU law of regulations disentitling Zambrano carers from social benefits

The Court of Appeal (Arden, Elias, Burnett LJJ) today begins a four day hearing of several conjoined appeals which challenge various regulations enacted in 2012 which have the effect of disentitling from certain social benefits non-EU citizens who have an EU law right to reside by virtue of being the carer of a dependant EU citizen (pursuant to the principle inCase C-34/09 Ruiz Zambrano v. Office National de l’Empoi [2011] 2 C.M.L.R. 46).The issues include:

1.) When does the Zambrano right arise?

2.) Do the citizenship provisions in Arts. 20-21 TFEU as elaborated in Zambrano confer an entitlement to social benefits and if so in what circumstances?

3.) Is the differential treatment of Zambrano carers contrary to EU anti-discrimination law?

Richard Drabble QC (leading Ranjiv Khubber) is appearing for the appellant in the lead case, HC v. Secretary of State for Work and Pensions, instructed by Platt Halpern solicitors.

Charles Banner is appearing for the AIRE Centre, who have been granted permission to intervene in all cases, instructed by Herbert Smith Freehills LLP.

[appealalready]

Section 17 of the Children Act 1989— Provision of services for children

It shall be the general duty of every Local Authority

 to safeguard and promote the welfare of children within their area who are in need; and

 so far as is reasonably consistent with that duty, to promote the upbringing of such children by their families, by providing a range and level of services appropriate to those children’s needs. The services provided by a Local Authority under this section may include providing accommodation, giving assistance in kind, or in exceptional circumstances, in cash.

[appealalready]

https://www.freemovement.org.uk/new-zam ... no-carers/

The UK’s obligation under Zambrano can be met by ‘basic support’ in the form of section 17 support. This means British children of Zambrano carers will continue ‘basic support’ provided by local authorities instead of mainstream social assistance. As the judgment does not contain a positive ruling that section 17 support meets the needs of Zambrano carers “on the ground”, the question of the level of support given to Zambrano carers under section 17 may need to be considered in more detail: see R (Mensah) v Salford City Council [2014] EWHC 3537, in which a Zambrano carer is seeking permission to appeal. The discrimination challenge raises complex issues regarding the effectiveness of EU citizenship and this issue is likely to be considered further by the Supreme Court, with the strong possibility of a future reference to the CJEU (see para 172).

[appealalready]

From the Home Office on UK Leave to Remain Applications under Article 8 (with recourse to public funds):

Where an applicant is receiving support from a Local Authority under section 17 of the Children Act 1989 or section 21 of the National Assistance Act 1948, the Local Authority will have conducted their own assessment of destitution before making a decision to grant support. In many cases it is likely that we will reach the same conclusion as the Local Authority on the question of whether or not an applicant is destitute....

If an applicant qualifies for a fee waiver, their substantive FLR(O) application will then be considered by the relevant caseworking unit without the requirement to pay an application fee. If the applicant has qualified for a fee waiver and they then go on to qualify for a grant of leave to remain under the 10-year partner, parent or private life route, they should be granted leave with recourse to public funds (condition code 1A).