England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON COUNTY COURT
(HER HONOUR JUDGE DIANA FABER)

		Royal Courts of Justice Strand, London, WC2A 2LL
		7th November 2012

Lord Justice Pill:

1. This is an appeal by Ms Angella Pryce, the appellant, against a decision of HHJ Diana Faber dated 2 May 2012 whereby she dismissed the appellant's appeal under section 204 of the Housing Act 1996 against a decision of the London Borough of Southwark ("the council") on a review under section 202 of the Act whereby it was decided that the appellant was subject to immigration control within the meaning of the Asylum and Immigration Act 1996 ("the 1996 Act") and so was not eligible for housing assistance under section 185(2) in Part VII of the Housing Act 1996.
2. Section 13(2) of the 1996 Act provides:

"In this Act –

'person subject to immigration control' means a person who under the 1971 Act requires leave to enter or remain in the United Kingdom (whether or not such leave has been given)."

3. Before HHJ Faber the appellant relied on section 7(1) of the Immigration Act 1988, which provides:

"A person shall not under the principal Act [Immigration Act 1971] require leaver to enter or remain in the United Kingdom in any case in which he is entitled to do so by virtue of an enforceable [EU] right or of any provision made under section 2(2) of the European Communities Act 1972. "

4. Section 2(1) of the European Communities Act 1972 ("the 1972 Act) provides:

"All such rights, powers, liabilities obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly; and the expression 'enforceable EU right' and similar expression shall be read as referring to one to which this subsection applies "

5. The Immigration (European Economic Area) Regulations 2006 were made under section 2 of the 1972 Act. The appellant's case was that, although she was unlawfully present under domestic law, she had an EU right to residence derived from EU law as the carer of a British citizen child. Such a right was derived from the application of Article 20 of the Treaty on the Functioning of the European Union ("TFEU") and the Court of Justice of the European Union ("CJEU") judgment in Zambrano v ONEM C-34/09, 8 March 2011 ("Zambrano"). As a result, she was not subject to immigration control.
6. Article 20, insofar as is material, provides:

"1. Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.

2. Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties. They shall have, inter alia:

(a) the right to move and reside freely within the territory of the Member States;"

I will refer to Zambrano later.

7. Acceding to the submissions of Mr Broatch for the council, the judge held, at paragraph 40:

"...it is not necessary, for the purpose of giving effect to the children's rights, to disapply national requirements to apply for leave to remain or to work.

In paragraph 43, the judge stated:

"The effect of my rulings is that a  Zambrano carer does have to apply for leave to enter or remain and thus is subject to immigration control for the purposes of eligibility under Part VII of the Housing Act 1996."

8. The appellant appealed to this court and Mr Berry on her behalf supplied detailed written submissions on 5 June 2012. On 10 October 2012 the Secretary of State for the Home Department ("the Secretary of State") was given permission to intervene in the appeal and Mr Staker provided written submissions on 17 October 2012.
9. By letter of 29 October 2012 the council continued to oppose the appeal. However, on 1 November 2012, six days ago, Mr Broatch supplied written submissions on behalf of the council stating that the council "will not oppose the appeal". Solicitors for the appellant and for the council requested that a consent order allowing the appeal be made on a consideration of the papers. The Statement of Reasons and draft order were supplied on 5 November 2012.
10. The Secretary of State sought a hearing so that the court could rule on a significant point of law. As the appellant's solicitors had put it in a letter of 31 October 2012:

"...many cases have been stayed behind the instant case in anticipation of a clarification of the law."

In a letter of 5 November 2012 the solicitor stated:

"It is also true that there are many homelessness appeals and welfare benefit appeals that are either stayed or which await the outcome in Pryce v Southwark LBC before a final judgment is reached. Thus the instant case has been treated by social welfare applicants and public authorities alike as a test case."

The Secretary of State also expressed disagreement in certain respects with the agreed position of appellant and council specified in the Statement of Reasons, in particular the paragraph summarising the agreed position, paragraph 29.

11. The court has been referred to the speech of Lord Slynn of Hadley in Salem v SSHD [1999] 1 AC 450. Lord Slynn stated:

"My Lords, I accept, as both counsel agree, that in a cause where there is an issue involving a public authority as to a question of public law, your Lordships have a discretion to hear the appeal, even if by the time the appeal reaches the House there is no longer a lis to be decided which will directly affect the rights and obligations of the parties inter se..."

And in the following paragraph:

"The discretion to hear disputes, even in the area of public law, must, however, be exercised with caution and appeals which are academic between the parties should not be heard unless there is a good reason in the public interest for doing so, as for example (but only by way of example) when a discrete point of statutory construction arises which does not involve detailed consideration of facts and where a large number of similar cases exist or are anticipated so that the issue will most likely need to be resolved in the near future."

12. Following submissions, the court decided to proceed to judgment. The issue is one involving housing authorities and relates to a question of public law of some importance. Having regard to the significance of the point involved and its likely application to many cases, there is a good reason in the public interest for a public hearing at which judgments available to housing authorities and applicants for housing benefit are given. I regard that as preferable to allowing the appeal on the basis of the submitted Statement of Reasons, some of which are contentious, as has emerged in the course of the hearing, but which would be likely to be cited in other cases.
13. I bear in mind that in this appeal nobody has appeared to oppose the joint submissions of the parties on the central issue, on which they and the Secretary of State are at one.
14. I refer to the background facts and to submissions, largely adopting the substance of the contents of the statement of reasons. The appellant is a national of Jamaica, not of course an EU member state. She was born on 13 September 1974. She arrived in the United Kingdom in 2002 and has remained here ever since, staying beyond the period of her grant of leave to enter. She has three children with her. The first child was born in 2004. His father is of unknown nationality and that child is not relevant for present purposes. The appellant has two further children, twins born in the United Kingdom on 24 November 2010: Wynter-Rayne Grant and Omarion Grant. Their father is a British citizen by virtue of being born to a British citizen father named on their birth certificates issued within a year of their births. These two children are British citizens: see section 1(1) of the British Nationality Act 1981 and the British Nationality (Proof of Paternity) Regulations 2006.
15. In its review decision of 30 September 2011 the council accepts that these children are British citizens. It is also accepted by the council that the appellant is and was at all material times the sole or principal carer of the twins for the purposes of regulation 6(1) of the Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006 ("the Homelessness Regulations"). As British citizens, the appellants are nationals of an EU member state and hold an additional status as EU citizens (Article 20 TFEU.).
16. On 15 June 2011 the appellant approached the council's housing department to make an application to secure assistance as a homeless person. On 1 July 2011 the council made an initial decision under section 184 of the Housing Act 1996 that the appellant was homeless but that she was not eligible for homelessness assistance. On 13 July 2011 the appellant's solicitors requested a review of that decision. On 12 September 2011 the respondent sent a "minded to refuse" letter. On 16 September 2011 the appellant's solicitors made further submissions. The council made its review decision on 30 December 2011, and that is the decision under appeal. It maintained that the appellant was not eligible for assistance. It was and is the appellant's case that, as a beneficiary of an EU right of residence, she is not a person subject to immigration control and is eligible for assistance under section 185(3) of the Housing Act 1996 and regulation 6 of the Homelessness Regulations.
17. There is no issue in this case about the habitual residence of the appellant within the meaning of those Regulations. It is accepted that if this appellant has an EU right of residence deriving from Article 20 she satisfies the habitual residence test under Regulation 6(1) of the Homelessness Regulations and is eligible for assistance.
18. Making good her case, the appellant relied on the effect of Article 20 of the TFEU and the principle established in the case of Zambrano. I have already cited Article 20. The judgment of the CJEU in Zambrano establishes that, where an EU citizen child is within his EU member state of nationality, his EU citizenship may have consequential effects for his parent or parents who are not nationals of any EU member state and who lack domestic leave to remain and/or permission to work in that state in circumstances where the presence of the parent or parents is necessary so that the child is not deprived of the genuine enjoyment of the substance of the rights conferred by virtue of his status as an EU citizen.
19. I cite, as did the Statement of Reasons, paragraphs 40 to 45 of the judgment in Zambrano. :

"40. Article 20 TFEU confers the status of citizen of the Union on every person holding the nationality of a Member State (see, inter alia, Case C-224/98 D'Hoop [2002] ECR I-6191, paragraph 27, and Case C-148/02 Garcia Avello [2003] ECR I-11613, paragraph 21). Since Mr Ruiz Zambrano's second and third children possess Belgian nationality, the conditions for the acquisition of which it is for the Member State in question to lay down (see, to that effect, inter alia, Case C-135/08 Rottmann [2010] ECR I-0000, BAILII: [2010] EUECJ C-135/08, paragraph 39), they undeniably enjoy that status (see, to that effect, Garcia Avello, paragraph 21, and Zhu and Chen, paragraph 20).

41 As the Court has stated several times, citizenship of the Union is intended to be the fundamental status of nationals of the Member States (see, inter alia, Case C-184/99 Grzelczyk [2001] ECR I-6193, paragraph 31; Case C-413/99 Baumbast and R [2002] ECR I-7091, paragraph 82; Garcia Avello, paragraph 22; Zhu and Chen, paragraph 25; and Rottmann, paragraph 43).

42 In those circumstances, Article 20 TFEU precludes national measures which have the effect of depriving citizens of the Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union (see, to that effect, Rottmann, paragraph 42).

43 A refusal to grant a right of residence to a third country national with dependent minor children in the Member State where those children are nationals and reside, and also a refusal to grant such a person a work permit, has such an effect.

44 It must be assumed that such a refusal would lead to a situation where those children, citizens of the Union, would have to leave the territory of the Union in order to accompany their parents. Similarly, if a work permit were not granted to such a person, 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 those circumstances, those citizens of the Union would, as a result, be unable to exercise the substance of the rights conferred on them by virtue of their status as citizens of the Union.

45 Accordingly, the answer to the questions referred is that Article 20 TFEU is to be interpreted as meaning that it precludes a Member State from refusing a third country national upon whom his minor children, who are European Union citizens, are dependent, a right of residence in the Member State of residence and nationality of those children, and from refusing to grant a work permit to that third country national, in so far as such decisions deprive those children of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizen.

20. In her Grounds of Appeal the appellant alleged that the learned judge had misdirected herself as to the interpretation and application of Article 20. A number of findings were challenged including the finding that a Zambrano carer does have to apply for leave to enter or remain and is a person subject to immigration control. A Zambrano carer has been defined as a third-party national carer of UK national children.
21. The appellant submitted that the contest, following the judgment in Zambrano, was whether Article 20 TFEU confers an automatic right of residence on its beneficiaries as a substantive right that also precludes national measures that interfere with the exercise of that right or whether it is limited merely to conferring a right to be granted domestic permission to work and reside on application (a procedural right). It was the appellant's case that where a British citizen, also an EU citizen child in the UK, requires his non-EU citizen parent to reside in the UK as his carer so that he can genuinely enjoy the substance of the rights conferred by virtue of his status as an EU citizen under Article 20, that non-EU citizen parent who has no other basis to reside in the UK under UK or EU law derives a substantive EU right of residence in the UK.
22. It is submitted that acceptance that such an EU right precludes refusal of a residence permit or a work permit on application should not be confused with the proposition that the EU right is limited in its effect merely to precluding such a refusal. The appellant submitted that, where she enjoys such a substantive EU right of residence derived from Article 20, she is not a person subject to immigration control and she does not require leave to enter or remain in the United Kingdom. She enjoys a substantive EU right of residence and is eligible for homelessness assistance. The appellant submitted that the judge had impermissibly impaired the effective exercise of the EU right by insisting on a form of documentary permission to reside as a prior condition of the enjoyment of the right.
23. On that central point, the Secretary of State's written submissions agree in substance with those of the appellant. It is submitted that in Zambrano there was no suggestion that the particular aspect of the operation of Article 20 with which that case was concerned required the adoption of further measures or left a discretionary power to member states. It simply ruled that Article 20 precludes a member state from refusing a third-country national a right of residence in specified circumstances. It was submitted that the Zambrano principle has a direct effect in the legal orders of member states and confers on individuals rights which the national courts must protect. It is accordingly submitted that, in cases where the Zambrano principle applies, there are "rights arising by or under the Treaties" which "in accordance with the Treaties are without further enactment to be given legal effect" and there is therefore "an enforceable EU right" under section 2(1) of the 1972 Act.
24. It follows, it is submitted, that a non-EU national to whom the Zambrano  principle applies is not by virtue of section 7(1) of the Immigration Act 1988 "subject to immigration control". It is also submitted that the question of fact -- whether or not the Zambrano principle applies to a non-EU national -- is a question of fact for the decision maker. In Zambrano itself it fell to the Belgian court to determine this question after the CJEU had given its preliminary ruling. If, as a matter of fact, the non-EU national falls within the Zambrano principle, that person is not subject to immigration control regardless of whether or not the UK authorities have yet made any determination of a non-EU national Zambrano claim or indeed regardless of whether or not the non-EU national had even applied to be recognised as having a Zambrano  claim. Conversely, it is submitted, if as a matter of fact a non-EU national does not fall within the Zambrano principle, he or she will be subject to immigration control, unless exempt through immigration control or some other reason.
25. In supplementary submissions, it was submitted on behalf of the Secretary of State that it is a matter for the council to determine whether or not, as a matter of fact, the appellant satisfies all the requirements of a valid Zambrano claim for the purposes of section 185(2) of the Housing Act 1996 in respect of the application to which these proceedings relate. The council has indicated that it considers that she does satisfy all of those requirements. Mr Broatch for the council has made an unqualified admission to that effect.
26. Thus none of the parties before the court seeks to dispute that the appellant is not subject to immigration control for the purposes of section 185(2) of the Housing Act 1996 in respect of the application to which these proceedings relate. The Secretary of State's position is that where an applicant does have a valid Zambrano claim the person is not subject to immigration control. The council adopts a position agreed with that of the appellant.
27. I will refer to the agreed permission but add that we have been told that an amendment to the EEA Regulations comes into force tomorrow, 8 November 2011. Mr Staker tells the court that the amendments are intended to give full effect to the Zambrano decision. It is accepted that they do not apply in the present case and I make no further comment on them.
28. The court has heard submissions as to the position of the parties and as to the drafting in the Statement of Reasons. In the event, what was included in paragraph 29 of the Statement of Reasons has been amended to meet concerns of and points raised by the Secretary of State. The court heard submissions and then rose for 45 minutes to allow the parties an opportunity to agree a draft. No alternative draft had been put forward by the Secretary of State, which is unfortunate having regard to the position adopted by the Secretary of State in written submissions.
29. Mr Staker took part in the discussions and indeed himself produced a draft with some amendments. Mr Gordon QC for the appellant and Mr Broatch for the council were able to accept them. Mr Staker does not feel able formally to agree the contents of the statement, which I will read, but, subject to one point where again attempts have been made to meet him, he has made no objection to the redraft appearing in this judgment. Mr Staker had been seeking assurances that there are factual considerations which must be considered by councils and there can be no operation of the Zambrano principle in an automatic way. In his first skeleton Mr Staker sought a remittal of the claim on the basis that findings of fact had not been made. He does not pursue that application, Mr Broatch for the council having clearly stated what the council has accepted by way of the facts in this particular case.
30. The agreed statement of the appellant and the council, to which, it appears to me, the Secretary of State has no real objection following the meeting of her points on several issues, reads in this way :

"Article 20 of the [TFEU] contains treaty rights which are directly applicable in the UK national legal order by virtue of section 2(1) of the European Communities Act 1972 without the need for transposition into national law.

2. A person in respect of whom a refusal of a right of residence would be inconsistent with Article 20 of TFEU in accordance with the principles established by the EU in Ruiz Zambrano v ONEm C-34/09 is not a person subject to immigration control for the purposes of s.185 of the Housing Act 1996 or s.7 of the Immigration Act 1988.

3. For the purposes of the Appellant's application for housing assistance, the Respondent (whose responsibility it is to make such a determination) has determined that the Appellant meets the requirements of the Zambrano principles.

4. The Appellant is such a person who derives a right of residence from the EU law and there being no issue as to habitual residence is eligible for assistance as homeless under s.185(3) of the 1996 Act and the Homeless Regulations, regulation 6, as in force at all material times on 15 June 2011 onwards when she applied for assistance as homeless, including 30 September 2011 being the date of the review decision under appeal in these proceedings.

5. In the circumstances, the appeal ought to be allowed; the Order of HHJ Faber of 2 May 2012 ought to be set aside; and [the council's] review decision of 30 September 2011 ought to be varied pursuant to s.204(3) of the 1996 Act to a decision that the Appellant is eligible for assistance under Section 185 of the 1996 Act. "

31. Having considered the carefully drafted written submissions of the parties and their oral submissions, it appears to me that the council's concessions of fact and law are appropriate. I agree, on the central point identified by the parties and by the Secretary of State, that the propositions stated are correct. I repeat, however, that an important concession has been made and the court has not heard contrary submissions as to the effect of Zambrano. The judgment must be read in the light of that.
32. I add that whether an applicant does have a Zambrano claim is clearly fact-sensitive. Moreover further questions may well arise as to the effect of an application of the Zambrano principles in particular situations. The court does not propose to analyse further the scope and extent of those principles. The court has thought it right to explore the basis for the submissions put forward by the parties and by the Secretary of State. Clarification has been obtained and accordingly this judgment is made.
33. I would allow the appeal on the basis stated.

Lord Justice Rimer :

34. I agree

Mr Justice Burton:

35. I also agree.

Order: Appeal allowed