QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT in MANCHESTER
Strand, London, WC2A 2LL
B e f o r e :
| The Queen
(on the application of HC)
|- and -
|1. SECRETARY OF STATE FOR WORK AND PENSIONS
2. SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT
3. HM REVENUE & CUSTOMS
|- and -
|4th Defendant / Interested Party
(instructed by Messrs Platt Halpern Solicitors) for the Claimant
Jason Coppel QC and Amy Rogers (instructed by The Treasury Solicitor and The General Counsel and the Solicitor to HM Revenue & Customs) for Defendants 1-3
The 4th Defendant/Interested Party was not represented
Hearing dates: 22-23 October 2013
Crown Copyright ©
Mr Justice Supperstone :
i) The Social Security (Habitual Residence) (Amendment) Regulations 2012 made by the Secretary of State for Work and Pensions, the First Defendant;
ii) The Allocation of Housing and Homelessness (Eligibility) (England) (Amendment) Regulations 2012, made by the Secretary of State for Communities and Local Government, the Second Defendant; and
iii) The Child Benefit and Child Tax Credit (Miscellaneous Amendments) Regulations 2012, made by HM Revenue and Customs, the Third Defendant.
The Amending Regulations have the effect of denying the Claimant access to mainstream welfare benefits and housing provision.
The Factual Background
"48. My children are British citizens, and have a right to live in the UK. I want them to have a good life here and, when they are a bit older, I would like to work and to support them financially. At present, because they are so young, it is not possible for me to work, and I understand that I cannot claim benefits because of the regulations that have been passed by the Government which say I am not eligible.
49. I feel trapped. I am unable to leave and yet unable to give my children a normal and happy life here in the UK."
"In my current circumstances the most I can hope to do is to subsist. If anything unexpected happens even this is threatened."
At paragraph 36 she states:
"As I cannot go back to Algeria and have no right to live in any other country my only option is to remain here, where at least I have the protection of a prohibited steps order and the British courts. … Also my children are British. This is their home country and the only place they know. They are entitled to grow up here and, I pray, to enjoy the same benefits and opportunities of growing up in Britain that other British children have. At present when I see how they must live compared to their British cousins and step-siblings I know that they do not in practice have the same rights. We are expected to make do with far less, the bare minimum, only enough to survive."
The Treaty on the Functioning of the European Union ("the Treaty")
Within the scope of application of the Treaties, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited.
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;
1. Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect."
The Charter of Fundamental Rights of the European Union ("The Charter")
Human dignity is inviolable. It must be respected and protected.
Right to the integrity of the person
1. Everyone has the right to respect for his or her physical and mental integrity.
Respect for private and family life
Everyone has the right to respect for his or her private and family life, home and communications.
Freedom to choose an occupation and right to engage in work
3. Nationals of third countries who are authorised to work in the territories of the Member States are entitled to work in conditions equivalent to those of citizens of the Union.
Equality before the law
Everyone is equal before the law.
1. Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited.
2. Within the scope of application of the Treaty establishing the European Community and of the Treaty on European Union, and without prejudice to the special provisions of those Treaties, any discrimination on grounds of nationality shall be prohibited.
Equality between men and women
Equality between men and women must be ensured in all areas, including employment, work and pay.
The rights of the child
1. Children shall have the right to such protection and care as is necessary for their well-being…
2. In all actions relating to children, whether taken by public authorities or private institutions, the child's best interests must be a primary consideration.
Family and professional life
1. The family shall enjoy legal, economic and social protection.
2. To reconcile family and professional life, everyone shall have the right to protection from dismissal for a reason connected with maternity and the right to paid maternity leave and to parental leave following the birth or adoption of a child.
Social security and social assistance
1. The Union recognises and respects the entitlement to social security benefits and social services providing protection in cases such as maternity, illness, industrial accidents, dependency or old age, and in the case of loss of employment, in accordance with the rules laid down by Community law and national laws and practices.
2. Everyone residing and moving legally within the European Union is entitled to social security benefits and social advantages in accordance with Community law and national laws and practices.
1. The provisions of this Charter are addressed to the institutions and bodies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers.
Scope of guaranteed rights
2. Rights recognised by this Charter which are based on the Community Treaties or the Treaty on European Union shall be exercised under the conditions and within the limits defined by those Treaties."
The European Convention on Human Rights ("the ECHR")
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinions, national or social origin, association with a national minority, property, birth or other status."
"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No-one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties."
The Public Sector Equality Duty ("the PSED")
"A public authority must, in the exercise of its functions, have due regard to the need to—
(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;
(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;
(c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it."
The grounds of challenge
i) They involve unlawful discrimination against the Claimant and/or her children contrary to Article 18/20 of the Treaty, Article 21 of the Charter, and Article 14 ECHR read with Article 1 of the First Protocol, and/or breach of Article 8 ECHR.
ii) They amount to a breach, in particular, of Articles 24 and 34 of the Charter.
iii) They amount to a breach of section 149 of the Equality Act 2010.
The Parties' Submissions and Discussion
Ground 1: unlawful discrimination
The parties submissions
"…a case where the right to reside arises because a British citizen would otherwise be deprived of the genuine enjoyment of the substance of their rights as an EU citizen."
Thus, Ms Mountfield observes, the secondary legislation was drafted on the basis that it is legitimate to distinguish between those whose right of residence arises pursuant to the decision in Zambrano and others who have EU law rights to reside in the UK. That, she submits, is a misreading of the nature of the right which arises under Zambrano, which was about conferring upon a parent a right so that her child could genuinely enjoy the substance of his rights as an EU citizen resident in his own state (see paras 41-45 of the judgment).
"… this is not a case about the ambit of the Zambrano right, or how or when such a right can be established: the premise of the Claimant's case is that she has established the Zambrano right to reside and work in the United Kingdom, i.e. presence in the UK is required in order to avoid depriving her EU citizen children of genuine enjoyment of the substance of the rights attaching to their status of European Union citizens. Thus, this is a case about the consequences which flow, as a matter of EU/ECHR Law, once Zambrano right has been established."
"41. As the court has stated several times, citizenship of the European Union is intended to be the fundamental status of nationals of the member states:
42. In those circumstances, Article 20 FEU of the FEU Treaty precludes national measures which have the effect of depriving citizens of the European Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the European Union:
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 refusal to grant such a person a work permit, has such an effect.
44. It must be assumed that such refusal will lead to a situation where those children, citizens of the European Union, would have to leave the territory of the European 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 European Union, having to leave the territory of the European Union. In those circumstances, those citizens of the European 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 European Union.
45. Accordingly, the answer to the questions referred is that Article 20 FEU of the FEU Treaty is to be interpreted as meaning that it precludes a member state from refusing a third country national on whom he 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 refusing to grant a work permit to that 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."
"Having referred to Dereci (and, in particular, to the European Court's confirmation in that case that the principles recognised in Zambrano are triggered by neither the fact that the right to family life is adversely affected nor the fact that the presence of the non-EU citizen is desirable for economic reasons), Elias LJ giving the judgment of the court, held that the proposition relied upon by the Appellants was not arguable. He said:
'63. …[T]here is really no basis for asserting that it is arguable in the light of the authorities that the Zambrano principle extends to cover anything short of a situation where the EU citizen is forced to leave the territory of the EU. If the EU citizen, be it the child or wife, would not in practice be compelled to leave the country if the non-EU family member were to be refused the right of residence, there is in my view nothing in these authorities to suggest that EU law is engaged. Article 8 rights may then come into the picture to protect family life as the court recognised in Dereci, but that is an entirely distinct area of protection.
67. … I accept that it is a general principle of EU law that conduct which materially impedes the exercise of an EU law right is in general forbidden by EU law in precisely the same way as deprivation of the right. But in my judgment it is necessary to focus on the nature of the right in issue and to decide what constitutes an impediment. The right of residence is a right to reside in the territory of the EU. It is not a right to any particular quality of life or to any particular standard of living. Accordingly, there is no impediment to exercising the right to reside if residence remains possible as a matter of substance, albeit that the quality of life is diminished. Of course, to the extent that the quality or standard of life will be seriously impaired by excluding the non-EU national, that is likely in practice to infringe the right of residence itself because it will effectively compel the EU citizen to give up residence and travel with the non-EU national. But in such a case the Zambrano principle would apply and the EU citizen's rights would have to be protected (save for the possibility of a proportionate deprivation of rights). Accordingly, to the extent that the focus is on protecting the substance of the right, that formulation of the principle already provides protection from certain interferences with the enjoyment of the right."
"An EU citizen must have the freedom to enjoy the right to reside in the EU, genuinely and in practice. For a minor, that freedom may be jeopardised if, although legally entitled to reside in the EU, he is compelled to leave EU territory because an ascendant relative upon whom he is dependent is compelled to leave. That relative may be compelled to leave by dint of direct state action (e.g. he is the subject of an order for removal) or by virtue of being driven to leave and reside in a non-EU country by force of economic necessity (e.g. by having insufficient resources to provide for his EU children because the state refuses him a work permit). The rights of an EU child will not be infringed if he is not compelled to leave. …"
The judge added, "nothing less than such compulsion will engage Article 20 and 21 of the TFEU" (para 19(iv)).
"39. The fact that an individual such as the Defendant in the main proceedings held, at the material time for the purposes of the main proceedings, a permit authorising her to reside in Belgium does not mean that she is entitled to take advantage of the principle of non-discrimination on grounds of nationality under Article 18 TFEU.
40. It is admittedly true that, in paragraph 46 of its judgment in Trojani, the Court held in essence that, provided that a Union citizen is in possession of a permit for residence in a Member State, he may rely on Article 18 TFEU in order to be granted social security benefit under the same conditions as nationals of that Member State.
41. However that interpretation of Article 18 TFEU, the background to which concerns Union citizenship… cannot be applied as it stands to a situation where a third-country national is in possession of a permit for residence in a Member State."
"… Directive 2000/78, and, in particular, RTS 1 and 2(1) and (2)(a) thereof, must be interpreted as meaning the prohibition of direct discrimination laid down by those provisions is not limited only to people who are themselves disabled. Where an employer treats an employee who is not himself disabled less favourably than another employee is, has been or would be treated in a comparable situation, and it is established that the less favourable treatment of that employee is based on the disability of his child, who's care is provided primarily by that employee, such treatment is contrary to the prohibition of direct discrimination laid down by RT.2(2)(a)."
There is no authority to support the contention that there is a principle of associative discrimination that applies under Article 18 of the Treaty. To apply Coleman to discrimination law generally would in my view be a further substantial extension of EU law. Coleman is a case concerned with direct discrimination on grounds of disability. Discrimination on grounds of nationality is at best indirect discrimination.
"The Advocate-General had invited the court to consider the suggestion that a principle of reverse discrimination might yield residence rights but the court did not pursue that invitation and its judgment, which is what counts when seeking to define what EU law says on the topic, adopted a very different conclusion."
Blake J continued (at para 39):
"Any suggestion that the Zambrano judgment of the court laid the foundation for a broader right of residence, simply by application of the legal prohibition of reverse discrimination, was laid to rest in the case of … Dereci." (See para 74).
"the applicant's son was granted entry to the United Kingdom on the express condition that he would not have recourse to public funds. The court finds that it was this condition or legal status, and not the fact that he was of Sierra Leonean national origin, which resulted in his mother's differential treatment under the housing legislation." (Para 44).
In Bah the Court stated (at para 37) that
"a wide margin is usually allowed to the contracting state under the Convention when it comes to general measures of economic or social strategy."
At para 47 the Court continued:
"The Court recalls that the nature of the status upon which differential treatment is based weighs heavily in determining the scope of the margin of appreciation to be accorded to Contracting States. As observed above at , immigration status is not an inherent or immutable personal characteristic such as sex or race, but is subject to an element of choice. … Given the element of choice involved in immigration status, therefore, while differential treatment based on this ground must still be objectively and reasonably justifiable, the justification required will not be as weighty as in the case of a distinction based, for example, on nationality. Furthermore, given that the subject matter of this case – the provision of housing for those in need – is predominantly socio-economic in nature, the margin of appreciation accorded to the Government will be relatively wide."
Mr Coppel submits that this point is directly applicable to the present case. Regulation 21AA as amended of the Income Support (General) Regulations 1987 makes no reference to the nationality of benefit claimants; it provides that claimants have to have a right to reside of a certain type. It is of course, as Mr Coppel accepts, a form of indirect discrimination on grounds of nationality as British nationals will always pass the test.
"it is justifiable to differentiate between those who rely for priority needs status on a person who is in the United Kingdom unlawfully or on the condition that they have no recourse to public funds, and those who do not, and finds that the legislation in issue in this case pursues a legitimate aim, namely allocating a scarce resource fairly between different categories of claimants." (para 50).
"… Mrs Elias's exclusion from the compensation scheme is in substance very closely related to her non-UK national origins. It is that exclusion that has to be objectively justified. A stringent standard of scrutiny of the claim justification is appropriate because the discrimination, though indirect in form, is so closely related in substance to the direct form of discrimination on grounds of national origin, which can never be justified".
In Elias the proportionality issue was at the heart of the case on justification. At para 173 Mummery LJ continued:
"In reaching a decision on proportionality it is important to focus on the particular circumstances of this case rather than on the different circumstances of other cases".
"The Regulations further the policy of the Government that only those people who are entitled to income related benefits under national law, European Union law and international law have access to those benefits. In particular, whilst the Government fully intends to fulfil its obligations under EU law in relation to benefits and social assistance, it does not wish to go further than EU law requires. The Regulations serve to ensure that domestic rules of entitlement to welfare benefits do not confer wider rights than are required by the Zambrano judgment. In maintaining existing policy viz-a-viz the benefit entitlement of most third country nationals, the Regulations also serve to encourage migrants who can make a valuable contribution to the domestic economy, whilst delivering fairness for the taxpayer by maintaining the current level of support the benefits system is able to provided to the general population." (Witness statement, para 16).
"24. … There were two other respects in which the Government considers that the approach in the Regulations is necessary and justified. Firstly, the Government is concerned to encourage third country nationals who wish to have children in this country to ensure that they have sufficient resources to support themselves and any child – through work, family or savings – rather than looking to the State to provide support at the point at which they choose to have a child. This is consistent with the approach taken by the European Union, in striking a balance between the interests of EU citizens and the interests of each Member State in allocating scarce resources, and an approach which the Government believes is reflected in Zambrano itself.
25. Secondly, and relatedly, the Government believes that the approach in the Regulations will help to maintain the strength of its immigration control by reducing the incentive for people to come to Britain to access our welfare system or other services or, once here, to 'overstay', in order to claim benefits or services."
"As I understand [Counsel for the Claimant's] argument, he did not seriously question the proposition that the Secretary of State's reasons are objectively justifiable. The purpose of Regulation 2 of the 2002 Regulations is to ensure that the Claimant has achieved economic integration or a sufficient degree of social integration in the United Kingdom or elsewhere in the Common Travel Area as a pre-condition of entitlement to the benefit. … the Secretary of State's justification lies in his wish to prevent exploitation of welfare benefits by people who come to this country simply to live off benefits without working here. That this is a legitimate reason for imposing the right of residence test finds support in Advocate General Geelhoed's opinion in Trojani v Centre Public d'Aide Sociale de Bruxelles  ECR 1-7573, para 70 that it is a basic principle of Community law that persons who depend on social assistance will be taken care of in their own member state."
"Those who have a fixed right to be in the United Kingdom, such as refugees or those with permanent unconditional leave to remain, are entitled both to housing and to housing assistance. Those whose leave to remain in the United Kingdom is conditional on their ability to support themselves without recourse to public funds are not."
"Those who have a fixed right to be in the United Kingdom, such as refugees or those with permanent, unconditional leave to remain, are entitled both to housing and to housing assistance. Those whose leave to remain in the United Kingdom is conditional on their ability to support themselves without recourse to public funds are not. … The Court upholds the Government's argument that it is justifiable to differentiate between those who rely for priority need status on a person who is in the United Kingdom unlawfully or on the condition that they have no recourse to public funds, and those who do not, and finds that the legislation in issue in this case pursued a legitimate aim, namely allocating a scarce recourse fairly between different categories of claimants."
Ground 2: breach of Articles 24 and 34 of the Charter
By reason of the safety net provided by s.17 of the 1989 Act this case falls far short of a potential infringement of Article 1;
In R(Q) v Secretary of State for the Home Department  QB 36 the Court of Appeal held that the imposition by the legislature of a regime which prohibited destitute asylum seekers from working and from receiving support amounted to "treatment" for the purpose of Article 3 of the Convention, but such treatment would only be "inhumane or degrading" in breach of Article 3 if it attained a minimum level of severity and involved actual bodily injury or intense physical mental suffering. There is no claim of that degree of suffering in the present case.
Ms Mountfield submits that Article 8 is engaged (see Morris); however broad the margin of appreciation there would be breach of Article 8 if the best interests of the child are not addressed. However in R(on the application of Carson) v Secretary of State for Work and Pensions  3 All ER 577 Laws LJ noted (at para 26), by reference to the Strasbourg authorities, that Article 8 does not require the state to provide a home; nor does it impose any positive obligation to provide financial assistance to support a person's family life or to ensure that individuals may enjoy family life to the full, or in any particular manner. At the same time the Court has accepted that there maybe circumstances in which Article 8 imposes a positive obligation upon states to take steps to secure or to further respect for the home or family life. In this area however, the states enjoy a wide margin of appreciation. There is no positive obligation arising under Article 8 to provide jobseekers' allowance and income support (para 28).
Article 15(3) refers specifically to nationals of third countries. In so far as nationals of third countries have rights under Article 15 it is to working conditions, not to assistance to find jobs.
Ground 3: public sector equality duty
"I would emphasise the need for the court to ask whether as a matter of substance there has been compliance; it is not a tick box exercise. At the same time the courts must ensure that they do not micro-manage the exercise. Furthermore, as Pill LJ observed in R (Bailey) v Brent London Borough Council  EWCA Civ 1586 para 83, it is only if a characteristic or combination of characteristics is likely to arise in the exercise of the public function that they need to be taken into consideration. I would only add the qualification that there may be cases where that possibility exists in which case there may be a need for further investigation before that characteristic can be ignored: see the observations of Elias LJ in Hurley and Moore para 96."
Ms Mountfield submits that in the present case it must have been obvious that the proposed regulations may have an impact on women, and also an impact on children who will be affected on the grounds of the race of their mother.
"In my view, it is the regard that is appropriate in all the circumstances. These include on the one hand the importance of the areas of life of the members of the disadvantaged racial group that are affected by the inequality of opportunity and the extent of the inequality; and on the other hand, such countervailing factors as are relevant to the function which the decision-maker is performing."
"Most of those who have applied for a Zambrano right have been lone parents. UKBA administrative data shows that of those who would have a Zambrano right, 94% have not made their claim with a partner, suggesting that they are lone parents. Of these 21% are men."
By inference 79% were women.
"The regulation changes will maintain the current policy position that non-EEA nationals can work and claim contributory benefits, but cannot claim income-related benefits. This is a proportionate means of achieving the legitimate Government aim of encouraging migrants who can make a valuable contribution to our economy, whilst delivering fairness to the taxpayer by maintaining the current level of support the benefits system is able to provide to the general population. It is Government policy to ensure that only those people who are entitled under national law, European Union law and international law have access to income-related benefits."
"It was plain from the September EIA… that the Government well understood that in broad terms more women would be adversely affected than men. However, for the reasons given it was not feasible to say anything more precise than that. Anything more would have been speculation and guess work and would have added little or nothing to the basic picture which the EIA already painted."
"As the purpose of the regulations is to maintain the existing Government policy in relation to social housing allocations and homelessness assistance, it is not anticipated that there will be any significant equality impacts.
There may be some localised impacts on the basis of race or nationality, where local authorities have provided homelessness assistance to applicants claiming a Zambrano right. However, overall the impacts should be minimal, as the number of people claiming a Zambrano right is small."