Zambrano and Entitlement to Benefits
Birmingham Law Centre successfully argues for Birmingham Social Security Tribunal to apply Zambrano principle to a claim for Income Support by a third country national.
Despite strong opposition by the Secretary of State, a First-tier Tribunal sitting in Birmingham allowed an appeal by our client who was a third country national and claiming Income Support as a lone parent based on a right to reside derived from her dependant daughter who is a British national and a citizen of the European Union within the principles established in Ruiz Zambrano v Office national de l’emploi (ONEm)(Case C-34/09)  All ER (EC) 49. The Tribunal rejected arguments advanced by Treasury counsel (Jason Coppell) that Zambrano had no application as it was concerned with a contributory-based unemployment benefit and that residence was a matter for the Home Office to determine.
The decision in more detail
In an appeal to the First-tier Tribunal, we successfully represented our client in her application for Income Support. Our client is a Gambian national and has a two year old daughter by a British citizen father. She has overstayed her student visa and but for EU law she would be ineligible to claim main-stream benefits as someone subject to immigration control. The father’s involvement in our client’s daughter’s life was intermittent and spasmodic. Our client received benefits paid to children and some child support payments but her total income was less than 40% of the usual benefit levels. Out of this she had to pay rent of £250 per month, leaving her heavily in debt and gradually sinking into destitution. She had eaten only rice for each meal in the four days prior to the hearing. The tribunal held that:
[the appellant] is not excluded as a person subject to immigration control. She has a right to reside in the UK derived from her daughter’s status as a Union citizen and is habitually resident in the UK.
[the appellant’s daughter] is unable to enjoy the substance of the rights conferred by [EU Citizen] status unless the appellant is able to provide financial, practical and emotional support for her in the UK.
The appellant cannot provide this support for her daughter without receiving a non-contributory benefit (Income Support).
This is a ground-breaking decision that, by virtue of Article 20 Treaty on the Functioning of the European Union (TFEU), sees citizenship of the European Union conferred on the daughter stopping the UK government from refusing our client Income Support as it would have the effect of denying her daughter the genuine enjoyment of the substance of the rights conferred on her by EU law.
The tribunal have closely followed the case of Ruiz Zambrano v Office national de l’emploi (ONEm) and applied it to our client’s case. They agreed with us that it would be disproportionate to refuse to award our client Income Support if this had has the effect that her child would be forced (by economic pressure) to leave the territory of the EU as a whole. It is not yet known if the department will appeal.
Whilst the Income Support decision was pending, our client was refused a request for Interim Payments and a Crisis Loan. Both of these decisions were challenged by way of Judicial Review with the assistance of Desmond Rutledge of Garden Court Chambers. A matter of weeks before the tribunal hearing, a High Court Judge refused to grant permission saying that our client’s attempt to rely on Zambrano was ‘unarguable’. An oral renewal of the application for permission and interim relief is still pending – subject to whether the DWP decides to appeal the tribunal’s decision to the Upper Tribunal.
We believe that this decision represents a powerful extension of the principles established in Zambrano into the social security arena. It allows benefit entitlement to third country nationals who are the primary carers of UK citizen dependant children and, at last, there will have to be a focus on the rights of the child.
The tribunal’s Decision Notice itself, like the one in Zambrano, is simple and impressive and is available on request. Please email firstname.lastname@example.org for a copy.
We would like to hear from practitioners with similar cases and are willing to offer help where we can. Please also contact us to refer clients in similar circumstances.