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ZAMBRANO- important right to reside case
the government has issued regulations for income-related benefits, and child benefit and child tax credit, on basis that, whilst - following ‘zambrano’ - a non-EEA national who is main carer of brit cit can have right to reside and right to work in UK, that doesn’t carry a right to social security benefits -
here are links to rightsnet news stories on the regulations -
does anyone have a view as to whether that’s legally correct?
I think the amendments to the social security legislation are almost certainly unlawful.
This is so even leaving aside the lawfulness of the right to reside test as a whole (which perhaps the European Commission may eventually get around to challenging).
The point in Zambrano is that the non-EU parent must be granted a right of residence in order to ensure the EU national child residing in the member state of which they are a national (ie in our case the British child residing in Britain) is able to live in the EU (ie not deprived of the effective enjoyment of their right to EU citizenship).
In the Zambrano case this also implied he must have a work permit. But the work permit was only needed to enable his claim for unemployment benefits to succeed- in fact the referral was made specifically in connection with his claim to unemployment benefit- see para 25.
Admittedly, it is not clear from the judgment whether this was a contribution based benefit or a means tested one.
However, it is clear that the Court was of the view that if Mr Zambrano did not have adequate income then effectively the children would have to leave the EU- thus at paragraph 44 they say that the reason the refusal to grant the work permit is unlawful is that “he would risk not having sufficient resources to provide for himself and his family, which would also result in the children, citizens of the Union, having to leave the territory of the Union…”.
In my view the exact same logic would have to apply in respect of a non-EU national parent who was unable to work and needed to claim benefits in order to be able to stay in the UK (and therefore for the child to stay in the UK).
I would appeal any refusal of benefit based on the application of these new regulations on the grounds that the benefit refusal effectively puts pressure on the British child to leave the UK by starving the parent out. The best case would be one where the parent is plainly unable to work due to their own health issues and/or the disability or age of the British child.
Martin
I would have thought so, too. As far as I know, EU law doesn’t really make any distinctions between ‘types’ of RTR. You either have it (admittedly, sometimes with the restriction of not being an unreasonable burden), or you don’t.
Is this not similar to the UKBA’s interpretation of the amended Regs as meaning a person with a ‘derived’ RTR cannot count those periods towards their five years? Last I checked, there’s a challenge pending before the ECJ but haven’t heard anything since. On the same reasoning, I can’t see why such a RTR cannot count towards the five years, especially as family members are said to ‘only’ have a ‘derived’ RTR but still benefit from Art 16.
Either way, we’ve got at least one client who’ll be affected and doubtless many more. Will most certainly challenge the Regs.
Hmmm…
1. I think the point about this sort of right to reside not counting as time spent “legally residing” comes from Ziolkowski where the CJEU said that only a right under Article 7 counts (eg as a worker, self-employed, retaining those statuses, self-sufficient or a student/family member of any of those). You are right that the question (at least so far as someone with a Teixeira right of residence is concerned) is before the CJEU - case is Alarape and Tijani.
2. I agree that EU law does not distinguish types of right of residence. However, article 24(2) of the Directive contains some derogations from the principle that someone with a right to reside is entitled to equal treatment in terms of access to benefits etc- this only applies however, to people whose right to reside is as a workseeker and to people who are not workers/self-emp/retaining those statuses who want access to student loans/grants etc.
the government has issued regulations for income-related benefits, and child benefit and child tax credit, on basis that, whilst - following ‘zambrano’ - a non-EEA national who is main carer of brit cit can have right to reside and right to work in UK, that doesn’t carry a right to social security benefits -
here are links to rightsnet news stories on the regulations -
does anyone have a view as to whether that’s legally correct?
I would say you are factually correct, the Govt has legislated to the effect Zambrano confers a Right to Reside that does not contain a right to benefits or for example homelessness assistance.
Birmingham Law Centre are already challenging http://www.birminghamlawcentre.org.uk/wordpress/?p=21
My understanding of the regs is that it goes further than this. As well as excluding those with a Zambrano right to reside (arising from Article 20 of the Treaty of the Functioning of the European Union) by treating them as not habitually resident, the regs also exclude those who have a right to reside as a primary carer of a child of an EEA national who is working or has worked in the UK and the child is in education, not necessarily at the same time as the EEA national working in the UK but their must be an overlap with the EEA being in the UK. The Immigration (European Economic Area) Regilations 2006 were updated on 16/7/12 with the insertion of Ref 15A. 15A (4A) covers primary carers of a child of an EEA worker where the child is in eduation. People with type of right to reside are also to be treated as not habitually resident from 8th November under the new regs. This is not made at all clear in the explanatory note to the regs, which make it sound as though a right to reside arising from regulation 15A(4A) and a right to reside from Article 20 of the TFEU are one of the same thing i.e. the right to reside established in Zambrano. Those with a right to reside under regulation 15A (4a) may be primary carers who are either EEA or non EEA nationals and where the child is a child of a EEA national migrant worker. For example, it could be a Polish woman who has become a single parent of a baby and a child in school who has separated from the Polish father who is working in the UK. The mother has a right to reside deriving from Ibrahim and Texeira and as now incorporated into reg 15A(4A) of the Immigration (European Economic Area) Regs. She is currently able to claim Income Support but from 8th November she will be treated as not habitually resident and unable to claim IS. She will have to claim JSA as an EEA jobseeker instead. A non EEA national in the same situation e.g. Nigerian mother separated from an EEA national, not married, has a child in school and the non resident parent is still working in the UK - mother will not be able to claim any means-tested benefits under the new regs.
Has anyone else picked this up too? I wasn’t sure why it wasn’t referred to in the Rightsnet article which only refers to the Zambrano right to reside.
hi krista -
just looking at the regs amending the I(EEA) Regs -
http://www.legislation.gov.uk/uksi/2012/2560/made
the new para 15A(4A) reads -
’(4A) P satisfies the criteria in this paragraph if—
(a)P is the primary carer of a British citizen (“the relevant British citizen”);
(b)the relevant British citizen is residing in the United Kingdom; and
(c)the relevant British citizen would be unable to reside in the UK or in another EEA State if P were required to leave.”;’
this seems zambrano like to me but maybe i’m missing something?
cheers ros
Hi Ros,
Thank you very much for putting me straight. I was barking up the wrong tree entirely! I was reading Reg 15A(4)(a) of the regs rather than 15A(4A) as will be inserted from 8th November. That’s a relief that Ibrahim/Texeira primary carers will not be affected, although of course it is quite bad enough that Zambrano primary carers will be. Let’s hope that there is a successful legal challenge.
Thanks again,
Krista
A further thought has occurred to me. What about CB, CTC and WTC? My understanding is there are currently no restrictions on what type of right to reside someone needs to have to claim these. The new regs don’t affect CB or TCs so can someone with a Zambrano R2R still can claim these? I would have thought yes but then this would seem to be incompatible with the Government’s aim of maintaining the current policy position that non-EEA nationals can work and claim contributory benefit but can not claim income related benefits. So do you think it is likely that the Government may also introduce amending regulations for CB and TCs? Have people come across people with a Zambrano R2R who have actually been receiving means-tested benefits, TCs or CB?
Thanks,
Krista
Sorry, I logged in under our organisation log in instead of my individual one for my last post so it came up under SA instead of me! Krista
Hi Krista,
They have in fact introduced regulations which seek to prevent this being a sufficient right of residence for those benefits- see the news story from 18/10/2012:
In force from 8/11/2012 as with the others.
I think the link to the regs from the above news story is broken- here is a working link: http://www.legislation.gov.uk/uksi/2012/2612/made
These regs are also potentially challengeable.
CPAG would be particularly interested in a case of someone with a Zambrano right who was refused CB. Particularly good facts would be someone who had a clear inability to work (for example due to ill health themselves or the need to care for a disabled child).
Just to be clear though- there is no right to reside test in respect of WTC. So someone in this position could claim WTC (but not CTC).
Martin
hi -
have fixed link for SI.No.2612/2012 in news story, thanks for pointing it out martin.
cheers ros
Thanks very much for the clarification Martin. We will certainly get in contact if we come across any good test cases for CB on the Gingerbread Single Parent Helpline.
Krista
@dpg_law has tweeted about court of appeal victory in Pryce v LB Southwark - ‘Zambrano beneficiaries are entitled to homelessness assistance and other social welfare’
judgment not published yet it seems.
That’s interesting compared with the view taken here, although I haven’t seen the judgment in Pryce myself yet.
http://nearlylegal.co.uk/blog/2012/10/new-regulations-1-zambrano-eligibility/