In 2017 the Court considered a parent whose right to live in the UK derived from her British children’s EU citizenship. Local authority support enabled the family to stay together in the UK. The question was whether that right also entitled the parent to the same mainstream benefits as a British national.
HC was the primary carer of British children. After the family needed help, the local authority provided accommodation and financial support under section 17 of the Children Act 1989. A tribunal accepted her derivative right of residence. She challenged regulations excluding people whose sole right to reside was of that kind from certain benefits and housing assistance.
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The regulations and the Zambrano principle
The amendments responded to the Court of Justice decision in Zambrano. They excluded from those benefits a right to reside under article 20 TFEU arising because a British citizen would otherwise be deprived of the genuine enjoyment of the substance of EU citizenship rights. Lord Carnwath, with whom Lord Clarke, Lord Wilson and Lord Sumption agreed, held that the Zambrano principle is narrow. It is engaged only where refusal of residence or a work permit would in practice oblige the EU citizen children to leave the territory of the Union. It confers no right to a particular quality of life or standard of living, and no European authority extends it to non-contributory benefits of the kind excluded here. Once residence and the ability to work are secured, and practical support prevents departure, the obligation is met. The council’s support did that.
Arguments drawn from Baumbast, Ibrahim and Teixeira were rejected. Those cases concerned children’s education rights under Regulation 1612/68, which were not subject to a self-sufficiency condition. The domestic context and the source of the limitation were different, and a Zambrano right of residence does not automatically trigger equal treatment in social assistance.
The Charter and the Convention
Article 51 of the Charter applies to member states only when they are implementing Union law. Lord Carnwath held that EU law requires no more than practical support sufficient to avoid the children having to leave. Deciding not to “gold-plate” that minimum, and instead to exclude Zambrano carers from mainstream benefits, is a choice under national law, not implementation of EU law. The Charter therefore did not apply, and article 21 did not need to be considered. Article 18 TFEU was not available to a third-country national.
For the Convention challenge, Lord Carnwath assumed the benefits came within the ambit of article 8 or the property guarantee in Protocol 1. Article 14 then required examination of the difference in treatment. The Court accepted that the government had a wide discretion in allocating welfare funds and held that the objectives of the regulations had a reasonable foundation.
Section 17 and Lady Hale’s concerns
The scope of section 17 was not in issue and the council was not represented. Lord Carnwath noted that the duty is a matter of national law once the EU minimum is met, but that children’s welfare remains important and greater consistency through guidance would be desirable. Lady Hale agreed that the appeal should be dismissed and that no reference to the Court of Justice was required. She regarded the case as troubling because it concerned the rights of very young British children to remain in their own country with adequate support. She considered that the regulations had been framed by treating Zambrano carers simply as third-country nationals, without clear consideration of how the children would be supported if the carer could not work. Section 17 can meet the Zambrano requirement if assessments give proper weight to the children’s status as British children born and brought up here, the need actively to promote their welfare, and the effect of support well below that received by other British children dependent on income-related benefits. She also noted practical disadvantages of section 17: it is a target duty, cash assistance is discretionary and lacks standard rates, it does not automatically passport other help, and challenge is by judicial review rather than a benefits appeal.
Verdict: The Court unanimously dismissed HC’s appeal and made no reference to the Court of Justice. The regulations survived the challenge. The Court neither set an amount of support under section 17 nor decided a claim against the local authority.
Source: R (HC) v Secretary of State for Work and Pensions and others [2017] UKSC 73
