R (HC) v SSCLG [2013] EWHC 3874 (Admin)

ISSUE: The Zambrano line of cases concerns the entitlement of non-UK EU nationals, who would otherwise have no recourse to public funds, to various types of provision on the basis of their EU Treaty rights as workers. For a comprehensive introduction to this topic, see our Special Focus article on “Exercise of Treaty Rights by EU Nationals” in the October 2013 edition of this Newsletter.

FACTS: The claimant challenged the legality of three statutory instruments the effect of which was to exclude those with Zambrano rights of residence from eligibility to social security benefits, child tax credits, and housing benefits. She claimed that the regulations amounted to direct and indirect discrimination; that in formulating the regulations insufficient weight had been given to the best interests of children; and that the government had failed to discharge its public sector equality duty.

JUDGMENT: The Court dismissed all of the claimant’s grounds, observing that her claim proceeded on a fundamental misapprehension as to the scope of the Zambrano right. The claimant had tried to characterise the Zambrano right as being about establishing the right to remain in the UK; once that was done, she contended that she should be treated on an equal footing with any other person with a right to remain in the UK. Excluding her (and, by proxy, her children) from entitlement to certain benefits was therefore direct discrimination on the grounds of her nationality. The Court held, by contrast, that the Zambrano right was a limited right that guaranteed no more than the right to remain and to work in the UK for as long as was necessary to support a dependent who was a UK national. It did not guarantee any particular quality of life, nor did it confer any entitlement to benefits. The EU Treaty only prohibited discrimination in terms of rights falling within its ambit; as the Zambrano right did not confer a right to state benefits, there could be no discrimination.

The judge further held that there was no direct discrimination against the claimant on grounds of her nationality; the discrimination was on grounds of her immigration status. As discrimination on grounds of immigration status applies across the board, the discrimination was properly characterised as indirect discrimination. In a state benefit case, the margin of appreciation was very broad, and discriminatory effects would only be unlawful if the measure in question was “manifestly without reasonable foundation”. Provided the level of support did not fall below minimum human rights standards (which, because of a range of other types of support including, in the final analysis, support under s.17 CA 1989, it did not) then the regulations represented a proportionate means of furthering the legitimate aim of protecting scarce public resources.

The judgment is under appeal.