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Neutral Citation Number:	2013 UKUT 490 AAC
Reported Number:
File Number:	CIS 1371 2012
Appellant:	Sanneh and ors v Secretary of State and ors
Respondent:	JS
Judge/Commissioner:	Judge E. Jacobs
Date Of Decision:	10/02/2015
Date Added:	16/07/2013
Main Category:	Residence and presence conditions
Main Subcategory:	right to reside
Secondary Category:
Secondary Subcategory:
Notes:	Reported as [2015] AACR 18. European Union law – right to reside – Zambrano carers – whether non-EU citizen responsible for British child entitled to social assistance on same basis as EU citizens lawfully resident in UK The appellant, a Gambian national, came to the United Kingdom (UK) in 2006 on a student visa which was repeatedly renewed until it expired in November 2009. In September 2009 she had had a child with a British national but had separated from him shortly after the birth. In June 2011 she made a claim for income support which was rejected on the basis that she was a person subject to immigration control. The First tier Tribunal (F tT) upheld her appeal holding that her daughter had all the rights of a European Union (EU) citizen, that to enjoy those rights she needed the support of her mother, and that without income support the mother would have to leave the UK which would lead to the child leaving the EU and thus to deprivation of her rights: see Case-34/09 Zambrano v Office national de l’emploi [2012] QB 265. The Upper Tribunal (UT) upheld the Secretary of State’s appeal on the basis that there was no immediate danger of the appellant having to leave the UK as at the time in question she was surviving on child benefit, child tax credit and child support. The appellant appealed and the issues before the Court of Appeal included: (1) from what date the status of “Zambrano carer” took effect; (2) whether it conferred any right to social benefits; (3) whether, under Article 14 of the European Convention on Human Rights (ECHR), Zambrano carers had the same entitlement as EU citizens; and (4) whether the Secretary of State had fulfilled the public sector equality duty under the Equality Act 2010 when limiting benefits for them. Held, allowing the appeal, that: 1. Zambrano established that, if a refusal of a member state to grant a right to reside to a third country (non-EU) national with dependant EU citizen children led to those children being deprived of their rights by having to move out of the EU, the member state could not take measures that had the effect of refusing a right to reside: “the effective citizenship principle”. The status of Zambrano carer arose from the date the carer ceased to be liable to prohibited national measures eg on the birth of the child or when any leave to remain expired (paragraph 23); 2. to ensure that the EU citizen child enjoyed effective EU citizenship rights member states must provide social assistance to their Zambrano carers when it was essential to enable the carer to support themselves and to provide care for the child within the EU (the “basic support test”). The basic support test had three consequences: (1) the level of social assistance payable to Zambrano carers was exclusively governed by national law: (2) it did not have to be shown that the Zambrano carer would in fact leave the EU; (3) the EU principle of proportionality did not apply because only EU citizens could rely on the nationality non-discrimination principle (paragraphs 26 to 27); 3. EU law had no application when a member state treated some people less favourably than others (so-called reverse discrimination). The only restrictions were those imposed by the national law. The UK incorporates Article 14 of the Convention and it had not been violated because the UK government had policy reasons for making distinctions between Zambrano carers and others. Those reasons were not without foundation and, insofar as there was indirect discrimination, it was objectively justified (paragraphs 28 to 29); 4. the Secretary of State complied with the public sector equality duty under the 2010 Act when limiting benefits for Zambrano carers. The amendment regulations had made no change of policy; they had restored the position to the pre- Zambrano position (paragraphs 30 to 31).
Decision(s) to Download:	CIS 1371 2012-01.doc [2015] AACR 18ws.rtf