Zambrano Carers: Supreme Court rejects argument that denial of benefits was unlawful


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In Zambrano v Office nationale de l'emploi (Case C-34/09) [2012] QB 265 the Court of Justice of the European Union held that a non-EU citizen has a right to reside and work in the UK if they are the primary carer ('Zambrano carer') of a UK citizen child who would otherwise have to leave the EU with them, losing their EU citizenship rights, if they were not able to reside in the UK.

In response to this decision the UK government introduced regulations preventing Zambrano carers from claiming social assistance, i.e. non- contributory welfare benefits.

TheClaimant in R (on the application of HC) v Secretary of State for Work and Pensions and others [2017] UKSC 73 was a Zambrano carer.  This was not disputed. Her appeal involved the question of whether Zambrano carers are entitled to non-contributory welfare benefits on the same basis as lawfully resident EU citizens.

As background to the case, the Claimant was an Algerian national who moved to the UK in 2009 with leave and then overstayed. She married a British national in 2010 and they had two children, both of whom were British nationals. The relationship ended, the Claimant was provided with temporary accommodation and £80.50 per week for subsistence and utilities under Section 17 of the Children Act 1989. The Claimant challenged, by way of judicial review, the legality of the regulations preventing Zambrano carers from claiming non- contributory welfare benefits.

The Supreme Court unanimously held that Zambrano carers are not entitled to social assistance on the same basis as lawfully resident EU citizens. They held that the discrimination between Zambrano carers and other claimants is indirect discrimination on immigration status, rather than direct discrimination on the grounds of nationality. EU law does not require social assistance on a comparable level, but rather just the practical support needed in order for the children to remain in the EU. The limited assistance provided to the Claimant and her children under the Children Act was sufficient for them to remain, and so the Claimant could not rely on EU law to claim further assistance.

It has yet to be clarified whether the rights of Zambrano carers will be protected in Brexit negotiations, but assuming that they are it seems pretty certain that their entitlement to social security will not be increased.

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