Mr Justice Supperstone :
Introduction
- The Claimant is an Algerian national. She has been in the UK since 2008, initially on a six-month visitors' visa, and thereafter she overstayed and remained unlawfully. In 2010 she married Mr H, a British national of Egyptian origin, in a religious ceremony and lived with him in Tower Hamlets for two years. She has two children, AH, born on 28 August 2011, and IH, born on 23 March 2013. They are British nationals, both born in Britain. When the Claimant was pregnant with her second child, she was the victim of domestic violence from her husband. She left him in October 2012 to stay with her sister and sister's family in Oldham. The Claimant's sister lives with her disabled husband and three daughters. She could not accommodate the Claimant other than in the very short term, and could not afford to support the Claimant, who was then pregnant, and her child. The Claimant had been financially dependent on her husband.
- The Claimant approached Oldham County Council, the Fourth Defendant, for assistance on 30 November 2012. At first they would not assist her, but subsequently agreed to provide limited temporary housing and financial assistance under the Children Act 1989 ("the 1989 Act"), section 17. Following the order of HHJ Pelling QC made on 1 August 2013, the Claimant and her children are being accommodated by the Fourth Defendant, as an interim measure, in two-bedroom accommodation and are being given £55 per week to cover their subsistence needs and a further £25.50 towards utility costs.
- The Claimant challenges the legality of three statutory instruments (the "Amending Regulations"):
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 principal issue in these proceedings is whether the Amending Regulations are compatible with EU law or unlawfully discriminate on various grounds.
- In summary it is the Claimant's case that the Court of Justice of the European Union in Ruiz Zambrano v Office National de L'Emploi [2012] QB 265 ("Zambrano") decided that a minor child has an EU law right of residence on territory of the Member State of which he is a national as an EU citizen. Further the court decided that the parent of an EU national child who is themselves a third country national upon whom the minor child is dependent, has an EU law right of residence in the child's state of residence and nationality, and a right to work so as to support the child. Consequently the Claimant, as the third country national parent of two British children resident in the UK, has EU law rights to reside and work in the UK, derived from her children's rights to reside here as EU citizens. The Immigration (European Economic Area) Regulations 2006 ("the EEA Regulations") were amended by the Immigration (European Economic Area) (Amendment) (No.2) Regulations 2012 ("the EEA Amendment Regulations") to give effect to the Zambrano decision. At the same time amendments were made to the social security, tax credits and housing and homelessness regimes through secondary legislation, the purpose of which was to exclude from eligibility for social security benefits, child tax credits and housing entitlements, persons, whether in work or not, whose rights of residence arose pursuant to the Zambrano doctrine. These changes, it is said, undermine the practical effect of the Zambrano doctrine: they discriminate against Zambrano carers and their EU national children, and are unlawful.
- I heard oral submissions from Ms Helen Mountfield QC, for the Claimant, and Mr Jason Coppel QC for Defendants 1-3, on 22 and 23 October 2013. At the conclusion of the oral hearing I gave permission to the parties to make further limited submissions in writing, which subsequently I received.
The Factual Background
- In her first witness statement made on 5 July 2013 the Claimant described the support that she was given on an emergency, temporary basis by the Council in one room at a Travelodge in Oldham and the effect on her children of living off the £45 per week financial support provided. She states:
"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."
- Her second witness statement dated 13 September 2013 was made after she moved into new accommodation, a two-bedroom flat, following the order of the judge. At paragraph 10 she states:
"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."
- Evidence from the No Recourse to Public Funds ("NRPF") Network, a national network of organisations focussed on the statutory response to persons with no recourse to public funds, suggested that "a British child with a Zambrano carer supported by the local authority is likely to grow up experiencing high levels of poverty for their entire childhood, when a British child with British parents would benefit from significantly higher levels of support through access to public funds" (witness statement of Mr Millard, Chair of NRPF Network, para 40).
Statutory Framework
The Treaty on the Functioning of the European Union ("the Treaty")
- Part 2 of the Treaty is concerned with non-discrimination and citizenship of the Union. Articles 18, 20 and 21, in so far as are material, provide:
"Article 18
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.
Article 20
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;
Article 21
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")
- The relevant provisions of the Charter are Articles 1, 3, 7, 15, 20-21, 23-24, 33-34 and 51-52. These Articles, in so far as they are material, provide:
"Article 1
Human Dignity
Human dignity is inviolable. It must be respected and protected.
Article 3
Right to the integrity of the person
1. Everyone has the right to respect for his or her physical and mental integrity.
Article 7
Respect for private and family life
Everyone has the right to respect for his or her private and family life, home and communications.
Article 15
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.
Article 20
Equality before the law
Everyone is equal before the law.
Article 21
Non-discrimination
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.
Article 23
Equality between men and women
Equality between men and women must be ensured in all areas, including employment, work and pay.
Article 24
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.
Article 33
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.
Article 34
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.
Article 51
Scope
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.
Article 52
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")
- Article 8 provides:
"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."
- Article 14 provides:
"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."
- Article 1 of the First Protocol provides:
"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")
- Section 149(1) of the Equality Act 2010 provides:
"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
- Ms Mountfield submits that the changes to the benefit, tax credits and housing law regimes brought about by the Amending Regulations are unlawful on three grounds:
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
- Ms Mountfield submits that it is a basic principle of EU law that a person exercising an EU law right of residence cannot be discriminated against on grounds of nationality without justification. This right not to be discriminated against arises under Article 18 of the Treaty and Article 21 of the Charter. It is clear, she submits, that the Claimant has a substantive right of residence in EU Law for so long as is required to enable her children to enjoy their status as EU citizens under Article 20 of the Treaty (see Pryce v Southwark London Borough Council [2013] 1 WLR 996 at paras 21-31). Further the Claimant's children have the right to reside freely in the UK, not to be discriminated against in the enjoyment of their rights on grounds of nationality. The children's right not to be discriminated against includes the right not to be discriminated against on the basis of their mother's nationality (Coleman v Attridge Law [2008] 3 CMLR 27). Ms Mountfield relies on the decision in R (E) v Governing Body of JFS (2010) AC 728. At paragraph 68 Baroness Hale said: "… it is just as unlawful to treat one person more favourably on the ground of his ethnic origin as it is to treat another person less favourably".
- Ms Mountfield relies on the conclusion of the Court in Coleman v Attridge Law: "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, whose care is provided primarily by that employee, such treatment is contrary to the prohibition of direct discrimination laid down by Art.2(2)(a)" (para 56).
- Indeed the Amending Regulations, Ms Mountfield submits, themselves proceed on this premise. Regulation 21AA(3)(e) of the Income Support (General) Regulations 1987, as amended by the Social Security (Habitual Residence)(Amendment) Regulations 2012, for example, describe the target of the exclusions from entitlement contained in the Amending Regulations as being:
"…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).
- Ms Mountfield submits that the rights attaching to the child's status as an EU citizen are not only to reside in his country of origin, with his parent, but in exercising those primary rights, to do so on terms equal to other resident children who are EU citizens (Article 18). The Claimant's rights to reside and work are also protected by EU law. The Claimant has a directly effective EU law right of residence and will have this right until her youngest child is no longer reliant upon her. Thus, in exercising that EU law right, the Claimant too has rights to non-discrimination on grounds of nationality under Article 18 of the Treaty and Articles 21 and 22 of the Charter.
- Ms Mountfield submits the Amending Regulations represent automatic disentitlement to benefits on basis of status. Blanket exclusion from eligibility for all social security and social welfare benefits, she submits, is contrary to the prohibition on discrimination on grounds of nationality in Article 18 of the Treaty (see Trojani v Centre Public D'Aide Social de Bruxelles (CPAS) [2004] ECR 1-7573 at paras 42-46). Thus the blanket exclusion from the Claimant and her children from any social welfare assistance or entitlements from the State by means of the Amending Regulations discriminates against both her and them in relation to enjoyment of their rights under Article 20 of the Treaty on the basis of her nationality, contrary to Article 18 of the Treaty.
- Ms Mountfield submits that the main issue in this case is that given the Claimant has, by reason of the Zambrano decision, the right to reside and work in the UK, what rights flow from that. She submits that given the Zambrano principle applies, the blanket exclusion created by the Amending Regulations is unlawful. There are, she submits, four gateways that the Claimant can pass through. First, there are citizenship rights which fall within Article 18. Second, by limiting benefits to the Claimant and her children the Defendants are acting contrary to Article 21. Third, the Claimant has a benefit entitlement within the right to protect property under Article 1 of the First Protocol (see Stec v UK (2006) 43 EHRR 47). Fourth, the Claimant has a benefit entitlement within the ambit of the right to respect for family life within Article 8 ECHR; for example, child benefits are inter alia to protect family life.
- Ms Mountfield submits that the Claimant and her children suffer severe long-term detriment by reason of the application of this exclusion from entitlements, as is clear from the Claimant's witness statements and the statement of Ms Kathleen Cosgrove dated 26 July 2013. The exclusions apply without a time limit. They apply to in-work and out of work benefits. By reference to the evidence Ms Mountfield submits that the detriments are so severe as to violate the Charter rights of both the Claimant and her children in many respects. For example, the Claimant will never be entitled to housing benefits, or assistance with a housing deposit which violates Article 7 of the Charter read with Article 21; and there are obvious detriments to the Claimant and her children in terms of their entitlement to social security benefits which can not be in the children's best interests and would breach Article 24.
- Ms Mountfield submits that other Charter rights are infringed. If the Defendants are correct in principle the Claimant and her children could spend many years of their childhood moving every two weeks from one Travelodge to another. This would have a severe detriment on family life while exercising their right to reside in the UK. The children in such circumstances would not be treated with dignity (Article 1) and there would be a disproportionate breach of Article 7.
- These detriments, Ms Mountfield submits, are direct discrimination against the Claimant on grounds of her nationality. Blanket exclusions from social assistance contrasts with the position of any other person who enjoys a right of residence under EU law. Further, it amounts to discrimination against the Claimant's children on grounds of her nationality. Ms Mountfield accepts that by reason of the decision in Sanneh v Secretary of State for Work and Pensions [2013] EWHC 793 (Admin) it is not open to the Claimant to argue that to leave children living only on discretionary funds under s.17 potentially for their whole childhood impairs the very essence of the Claimant's right to reside in the UK; the position does however, she submits, impair the essence of her right to work to support her children. Her lack of entitlement to in-work and out of work benefits and childcare assistance has a knock-on effect on her practical ability to seek work or take up any job offer she obtains. At the very least this imposes a substantial barrier to the enjoyment of the children's lives and their opportunities to develop. Sanneh, Ms Mountfield submits, is a case where the concern was the absence of benefits for a matter of months (para 98). That case was argued only on the basis of Article 20 and a short term discomfort.
- Further Ms Mountfield submits the Amending Regulations constitute sex discrimination against the Claimant. She is excluded from in-work and out of work benefits and from social advantages which would make it easier for her as a single mother to join the workforce and to benefit from such work to the same extent as others, through tax credits if she did. She is discriminated against in relation to her standard of living on the basis of her membership of a group which is overwhelmingly female. Accordingly the absolute exclusion of Zambrano carers from such benefits is indirectly discriminatory on grounds of sex.
- Ms Mountfield submits that there is no justification for the discrimination. Justifications which rely upon discouraging those with no right of residence to remain are not relevant in this context, because the Amending Regulations proceed from the premise that those excluded from entitlement to in-work and out of work benefits and housing assistance are exercising an EU law right to reside.
- As for Article 8 ECHR, Ms Mountfield relied on the statement of Baroness Hale in ZH (Tanzania) v SSHD (2011) 2 AC 166 said at para 24: "… any decision which is taken without having regard to the need to safeguard and promote the welfare of any children involved would not be 'in accordance with the law' for the purpose of Article 8.2". Child benefits, for example, are inter alia provided to protect family life.
- Mr Coppel submits that the key issue in this case is the scope and ambit of the Claimant's two rights: the right to remain in the UK and the right to work. There is no right to claim mainstream benefits. Mr Coppel submits that the Claimant cannot side step the limitations on these two rights by reformulating her claim as one of discrimination. There are four reasons why she can not do this: (1) against the background of Directive 2003/109 granting a limited right, the ECJ could not have intended a Zambrano claimant to have an open-ended general right to equal treatment to social benefits. (2) If the basic two rights do not include a direct right to social benefits it does not make sense for there to be an indirect right by way of a discrimination claim. (3) Once a Zambrano Claimant has been offered the right to live and work in the UK, and so is in no danger of having to leave the EU, then EU law has no role to play (assuming the safety net is in place which ensures that the individual does not have to leave the UK). (4) Even if the Defendants are wrong about these three points, a Zambrano claimant can not have a better right to reside than that of EU and other nationals. A Zambrano claimant with a limited right to reside is not in a comparable position with persons with different rights to reside in the UK.
- Mr Coppel submits that the Claimant's complaint of discrimination on grounds of her nationality is not within the scope of application of the Treaties. The Treaties are concerned with discrimination on grounds of nationality against EU nationals. That prohibition of discrimination does not protect third country nationals. Article 18 can not be interpreted as including a right not to be discriminated against on grounds of third country nationality. The decision of the Court in ONAFTS v Ahmed (C-45/12, Judgment of 13 June 2013) is, Mr Coppel submits, a powerful authority against the Claimant's submission on the basis of Article 18 (see para 41).
- The Amending Regulations, Mr Coppel submits, do not discriminate against the Claimant or her children on grounds of nationality. Indeed they do not discriminate against the Claimant or her children at all under the Treaty or the Charter, nor do they breach the ECHR. If, contrary to this contention, there is any discrimination or breach of the ECHR, Mr Coppel submits it is proportionate and justified.
Discussion
- In my view the fundamental problem with the case advanced on behalf of the Claimant is that it proceeds on an incorrect basis. In the Note Ms Mountfield prepared for the hearing dated 21 October 2013 she states (at para 5):
"… 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."
- Ms Mountfield submits that the Defendants confuse the narrow circumstances in which the rights exist with the issue in the present case as to what rights flow from the establishment of the Zambrano right to reside and work.
- I do not consider this to be so. I agree with Mr Coppel that at the core of this case is the ambit of the Zambrano right. Mr Coppel, in my view, fairly observes that the Claimant has failed to appreciate the narrow scope of the Zambrano right. (This litigation has been conducted on the assumption that the Claimant has Zambrano rights; the Defendants do not accept that in fact she has).
- As a general rule, third country nationals are not entitled to claim social benefits (see Immigration Asylum Act 1999, s.115, and Asylum and Immigration Act 1996, s.9). There is no inconsistency between domestic and EU law (see Directive 2003/109) and ECHR case law (see Bah v UK (2012) 54 EHRR 21) in this regard. Asylum seekers and those granted leave to remain with recourse to public funds, for example, are exceptional categories of third country nationals who are entitled to claim social benefits. The Claimant has no direct right to be in the UK. She has a derivative right to be here so long as her children need her. The Claimant does not have rights analogous to those of EU workers or the self employed.
- The scope of Zambrano rights is clear from paragraphs 41-45 of the judgment of the Grand Chamber in that case. The Court states (I omit case references):
"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."
- The Claimant does not suggest that she and her children will be forced to leave the UK or EU if she is not given the entitlement to the social benefits she seeks (see paras 7 and 8 above).
- In the recent decision in The Queen on the application of Sanneh v Secretary of State for Work and Pensions and others [2013] EWHC 793 (Admin) Hickinbottom J ruled that Zambrano does not confer any right to welfare benefit payments in those circumstances. In reaching this conclusion the judge followed the decision of the Court of Appeal in Harrison (Jamaica) and AB (Morocco) v Secretary of State for the Home Department [2012] EWCA Civ 1736 in which Elias LJ analysed the principles derived from Zambrano and the later decision of the Grand Chamber of the Court of Justice in Dereci v Bundesministerium für Inneres [2011] EUECJ C-256/11, [2012] All ER (EC) 373. Hickinbottom J stated at para 17:
"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."
- At paragraph 19(ii), Hickinbottom J derived the following proposition, inter alia, relevant to the claim before him:
"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)).
- Permission to appeal the judgment of Hickinbottom J was refused by the Court of Appeal (Sir Stanley Burnton) on the papers. I am informed by counsel that the application is due to be renewed at an oral hearing.
- Ms Mountfield submits that Harrison is not a case about levels of support. The point in the present case was not considered, she submits, in Sanneh or in Dereci or in Harrison. In the present case the Claimant's children are discriminated against in the way they can live on the basis of their mother's national status for the whole of their childhood which, she submits, must affect the enjoyment of their EU right to reside without discrimination.
- However it is clear from the authorities to which I have referred that Zambrano does not confer a right to social benefits. The issue then is whether a person benefitting from a Zambrano right of residence can nevertheless establish a right to receive social benefits in reliance upon complaints of discrimination.
- I reject Ms Mountfield's submission that the Amending Regulations directly discriminate against the Claimant on grounds of her nationality. The case of Trojani, on which Ms Mountfield relies, concerns discrimination against an EU citizen. Article 18 of the Treaty and Article 21 of the Charter do not, in my view, confer any protection on third country nationals. Article 18 confers a non-discrimination right upon EU nationals. However in the recent decision in Ahmed the Court held that a third country national was not entitled to rely upon the prohibition of discrimination on grounds of nationality in Article 18 even where she had been granted a right of residence in an EU Member State. The Court stated:
"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."
- I accept Mr Coppel's submission that the text of Article 21(2) of the Charter makes clear that it applies only "within the scope of application of the [Treaties]", which is the same limitation which applies to Article 18. Article 21(2) must therefore be applied in compliance with Article 18 of the Treaty and cannot provide the basis for a challenge where Article 18 does not. In any event the Charter applies only where Member States are implementing EU law (Article 51(1)). It does not enable litigants to expand the content of any freestanding EU law right, such as the Zambrano right to residence and to work.
- Coleman v Attridge does not assist the Claimant. That case was concerned with Directive 2000/78 in relation to discrimination on grounds of disability as regards employment and occupation. The conclusion reached by the Court was by reference to the specific objectives of that Directive. The Court stated (at para 56):
"… 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.
- I also accept Mr Coppel's submission that the JFS decision does not support the Claimant. The reasoning in that case was that the boy was discriminated against on grounds of his ethnic origin. There was a need to look at his mother's ethnic origin to find out what his ethnic origin was. The Claimant's children are British nationals. EU law does not prohibit so-called "reverse discrimination".
- Ms Mountfield relied upon the opinion of Advocate General Sharpston in Zambrano in support of her submission that EU law prohibits so-called "reverse discrimination" against a Member State's own nationals. In particular Ms Mountfield refers to paragraphs 139-150 of the Advocate General's Opinion. However those paragraphs are in a section of the Opinion headed "A Proposal". At paragraph 144 the Advocate General suggests to the court that Article 18 of the Treaty should be interpreted as prohibiting reverse discrimination caused by the interaction between Article 21 of the Treaty and national law that entails a violation of a fundamental right protected under European Union law, where at least equivalent protection is not available under national law. However as Blake J observed in R (Bhavyesh) v Secretary of State for the Home Department [2012] EWHC 2789 (Admin) at para 37:
"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).
- There is no differential treatment of the Claimant on account of her nationality. I agree with Mr Coppel that it is immigration status, not nationality, that is the ground for differentiation in the present case. In Bah v United Kingdom (2012) 54 EHRR 21 the Court specifically noted that
"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 [45], 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.
- The Amending Regulations are not framed as applying to persons of a particular nationality, rather they affect persons with a right of residence in the UK of a particular description. Each EU law right to reside is, as Mr Coppel observes, sui generis and subject to its own limitations and conditions. I reject the Claimant's suggestion that any other person with an EU right of residence other than as a Zambrano carer would enjoy access to the full panoply of social security and assistance and in-work tax credits under EU law. The Zambrano right differs from the rights of residence for other third country nationals; it is not an autonomous right, but a derivative right which arises only in so far and for as long as a right of residence and a right to work are necessary to prevent departure of an EU citizen from the territory of the Union.
- Having concluded, as I do, that the Amending Regulations are framed on grounds of residence, not nationality, it must follow that any discrimination which existed could only be indirect.
- Bah provides the proper approach to justification. The Court upheld the Government's argument, where the issue related to the allocation of social housing, that:
"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).
- Ms Mountfield relies on the decision in Elias v Secretary of State for Defence [2006] EWCA Civ 1293, [2006] 1 WLR 3213 where Mummery LJ said at para 161:
"… 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".
- In my view the decision in Elias case does not dictate a different approach to Bah. Elias was not a social security case, nor did it involve EU law. It involved a British citizen very closely connected to the suspect ground, which is not the present case where immigration status is in issue. In Elias what was found to be particularly significant was that the Secretary of State had failed to consider the possibility of discrimination when making the policy under challenge. I accept Mr Coppel's submission that the evidence in the present case shows that the Government was well aware of the impact of what it was proposing.
- Mr Gareth Cooper, who is employed as a Policy Adviser in the Department for Work and Pensions in a team with primary responsibility for policies concerning migrants' access to income related benefits, explains in his evidence that there would be a significant cost to the public purse in the event that parents or carers with Zambrano rights of residence were to become eligible for social benefits (see his Witness Statement at paras 19-22).
- Mr Cooper summarised the policy behind the Amending Regulations as follows:
"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).
- Mr Cooper continued:
"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."
- Ms Mountfield criticises Mr Cooper's evidence in a number of respects. First, she asks where is the evidence of any consideration given to the long term help/needs of the Claimant's children. Second, Mr Cooper says that 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 rather than looking to the state to provide support at the point at which they choose to have a child (para 24). However, that is not the present case. The Claimant was in the country when her first son was born and was subject to domestic violence as a result of which she had to leave her husband when pregnant with her second child. Third, Mr Cooper says 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 (para 25). This consideration is irrelevant in the present case.
- Mr Coppel submits that the reasoning of the Government is well within the broad margin of discretion that it has. It is consistent, he submits, with the approach of the Supreme Court in Patmalniece v Secretary of State for Work and Pensions [2011] 1WLR 783, where the court held that the conditions for entitlement to state pension credit were indirectly discriminatory and, to be lawful, had to be justified on grounds independent of nationality.
- In a State benefit case the margin of appreciation given to the State is very broad. The test is whether in view of the discriminatory effects, the measure is "manifestly without reasonable foundation" (Humphreys v Revenue and Customs Commissioners [2012] 1 WLR 1545, per Baroness Hale at paras 15-16). I consider that the Amending Regulations represent a proportionate means of furthering the legitimate aim of protecting scarce public resources, including from individuals who move to, or remain in, the UK in order to take advantage of its welfare system. I note that in Patmalniece, a case concerned with the right to reside element of the test of habitual residence, of which the provisions of the Amending Regulations now form a part, Lord Hope stated (at para 46):
"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 [2004] 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."
- Ms Mountfield submits, by reference to the observations of Holman J in SM v Secretary of State for the Home Department [2013] EWHC 1144 (Admin) at para 51 that to leave a family reliant, over the long term, on discretionary and uncertain support under s.17 of the 1989 Act, and to exclude them entirely from passported benefits and entitlements, such as free school meals, and the certainty of needs-based level of benefit entitlement under the social security provisions itself constitutes a detriment to the children's best interest. Section 17 is not designed for the long term. The Defendants, she submits, have failed to appreciate this or to have regard to it as a primary consideration. However in my view this decision does not assist the Claimant. The decision in that case was that a policy document on the grant of discretionary leave promulgated by the Home Secretary unlawfully prevented decision makers from having regard to the welfare of children as a primary consideration, which was a requirement of s.55 of the Borders, Citizenship and Immigration Act 2009. As Mr Coppel observes, there is no suggestion that the s.55 duty applies in the present case. I accept Mr Coppel's submission that SM does not require the Defendants to ensure that any legislation enacted is as favourable as possible to the interests of any affected children.
- Mr Coppel makes four points as to why the position of the Claimant and her children is not as severe as is suggested on behalf of the Claimant. First, s.17 of the 1989 Act provides a safety net. Second, the Defendants do not understand why this is not a suitable case for child support maintenance. Third, Appendix FM to the Immigration Rules provides a clear basis within the rules for the grant of leave for the purposes of family life. It may be that the Claimant would qualify on this ground. I understand that she says she can not afford the £550.00 fee. However she may seek a fee waiver if she is destitute or there are exceptional circumstances which mean that she is unable to pay the fee for a leave to remain application form (see Appendix 1FLR(O), Request for Fee Waiver in order to exercise ECHR Rights, October 2013). Section 7(1) of the Immigration Act 1988 and Rule 5 of the Immigration Rules do not preclude a person who enjoys a right to enter or remain in the UK by virtue of the EEA Regulations from making an application for leave under Appendix FM. Fourth, it is a theoretical possibility that the Claimant and her children would spend a number of years living in a Travelodge, but it is extremely unlikely. The Claimant has a right to work, a right to apply for leave to remain and there is a right to child support maintenance. The combination of the s.17 safety net with a human rights minimum for the Claimant and her children prevents them from having to leave the UK.
- Having concluded, as I do, that the Claimant does not suffer unlawful discrimination on grounds of her nationality, I am unable to accept Ms Mountfield's alternative submission that the Claimant's children have been discriminated against on grounds of her nationality. They do not enjoy separate rights to claim social benefits. The Amending Regulations do not discriminate against them. They apply to potential claimants for the various social benefits to which they refer, that is the Claimant in the present case.
- Further, assuming, for present purposes, that the Amending Regulations are indirectly discriminatory, as having a disproportionate impact upon women, in my judgment on the evidence to which I have referred (see, in particular, paras 54-56 above) they can be justified. I reach the same conclusion in relation to the ECHR discrimination claims. Again, assuming there was discrimination which is within the ambit of Article 14, the question under Article 14 would be whether the Defendants' justification is "manifestly without reasonable foundation" (Humphreys v HMRC [2012] PTSR 1024 at paras 17-18). In my view it is not. I reject Ms Mountfield's submission that the Defendants do not even cross the "fair balance limb" of the justification test set out by the House of Lords in Huang v Secretary of State for the Home Department [2007] 2 AC 167, and applied by Lord Mance to the context of discrimination in The Queen on the application of E v Governing Body of JFS [2010] 2 AC 728 at para 97. I have had regard to the severe detrimental effect of the Amending Regulations on the Claimant and her children, but that is to be balanced against the public interest factors to which I have referred.
- As for the ECHR claim, Mr Coppel accepts that the Claimant's case falls within the ambit of Convention rights. However the Claimant had no pre-existing right to any of the mainstream benefits. The Bah principles in relation to justification apply equally in respect of this claim. Article 8 ECHR provides no assistance to the Claimant. It does not confer any right to a home, or to assistance with housing costs (see Kay v Lambeth London Borough Council [2006] 2 AC 465 at para 90, per Lord Hope).
- In Bah at para 50 the Court noted that
"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."
- Mr Coppel refers to the recent decision of the Divisional Court in JS v Secretary of State for Work and Pensions [2013] EWHC 3350 (QB) which involved a challenge to the "benefit cap" introduced by the Welfare Reform Act 2012. The Claimants alleged, inter alia, a breach of their rights under Article 8 ECHR and/or the Defendant's obligations under the UNCRC. At paragraph 49 Elias LJ (delivering the judgment of the court) stated that it cannot "be inferred from the mere fact in certain circumstances children are adversely affected that their interests were not treated as a primary consideration". Such an outcome "is entirely consistent with those interests being given that status but outweighed by countervailing considerations".
- Ms Mountfield distinguishes Bah on the basis that that case concerned the rights of a child who was brought to the UK with no right to public funds, whereas the Claimant's children are UK citizens (see para 15). She relies upon the decision in Morris v Westminster City Council and others [2006] 1 WLR 505 in support of the proposition that social welfare provisions concerning housing assistance to keep a family housed together are within the ambit of Article 8 ECHR and consequently their discriminatory impact falls to be considered under Article 14 through this route. However Bah v United Kingdom effectively, as Mr Coppel submits, supersedes Morris, as the Court upheld the compatibility of the very same legislation which had been declared incompatible in Morris, albeit on the strength of materially different justifications than had been advanced in Morris. In Bah the Court stated at paragraph 50:
"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."
- In my judgment the Amending Regulations do not discriminate against the Claimant or her children, or breach the ECHR. If contrary to this conclusion there was any discrimination it is proportionate and justified, as is any breach of the ECHR.
Ground 2: breach of Articles 24 and 34 of the Charter
- Ms Mountfield submits that contrary to the requirements of Article 24 of the Charter there is no evidence that when enacting the Amending Regulations the Defendant has taken into account the implications for the best interests of the children of Zambrano carers. Their best interests must be a primary consideration (ZH (Tanzania) v Secretary of State for the Home Department [2011] 2AC 166, per Baroness Hale at para 23). This omission is, she submits, particularly striking because the overwhelming majority of Zambrano carers will be caring for children, and the position, even after the interim order, is one that causes considerable difficulties for the Claimant in terms of her ability to care for her children.
- I reject this submission. First, there is no general requirement under EU law for Member States to provide parents with a particular level of support, regardless of their right to reside. The Defendants are, in my view, entitled to make legislation which properly reflects the rights of Zambrano carers and their children as a matter of EU law. Further the rights conferred by Article 34 (social security and social assistance) are to benefits in accordance with Community law and national laws and practices. Article 34 does not create any general entitlement to social security or welfare benefits where, as in the present circumstances, there is no EU or domestic law right to these benefits. All of the rights under Article 34 are qualified by the words that they are recognised "in accordance with the rules laid down by Community law and national laws and practices".
- Ms Mountfield made further submissions alleging infringement of other Articles of the Charter, in particular Article 1 (Human Dignity), Article 3 (Right to Integrity of the Person), Article 7 (Respect for Private and Family Life) and Article 15 (Right to Engage in Work). In my view the Claimant has failed to establish a breach of any of these Articles. In summary my reasons are as follows:
Article 1:
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;
Article 3:
In R(Q) v Secretary of State for the Home Department [2004] 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.
Article 7:
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 [2003] 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:
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.
- In my view by reason of Article 52(2) this ground advances the Claimant's claim no further than the claim under Ground 1 based on the EU Treaties.
Ground 3: public sector equality duty
- In The Queen on the application of Greenwich Community Law Centre v Greenwich London Borough Council [2012] EWCA Civ 496 Elias LJ said at paragraph 30:
"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 [2011] 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.
- Ms Mountfield submits that the Defendants' evidence does not properly consider the impact of the proposed regulations on children. The evidence shows a failure to demonstrate "due regard" to the need to eliminate unlawful discrimination against women, and also a failure to give due regard to the need to advance equality of opportunity for children of third country national mothers. In order to be satisfied that there has been due regard to the statutory equality needs, Ms Mountfield emphasises that the court must be able to find evidence that there has been an analysis of the material available to the decision maker "with the specific statutory considerations in mind" (Harris v Haringey London Borough Council [2010] EWCA Civ 703 at para 40, per Pill LJ).
- Ms Mountfield notes that the Defendants had identified by use of statistics that the vast majority of persons affected by the Amending Regulations would be lone parent women. However there is, she submits, no evidence of any recognition that the persons affected by the Amending Regulations are principally women who are making a valuable contribution both to the economy and society by bringing up EU citizens. Ms Mountfield submits that the decision maker did not address the problems for women of getting into work and the adverse effect on children because of the nationality of their mothers. In this regard Ms Mountfield relies on the Court of Appeal decision in Morris. She submits, there is no recognition that the Amending Regulations will have a serious adverse effect upon equality of opportunity for Zambrano children and their life chances, because of their maternal national origin; and there has been no due regard to considering the need to take steps to remove or minimise those disadvantages.
- The problem, in my view, with the Claimant's case on the PSED is that the Amending Regulations were intended to maintain what was the status quo for most third country nationals. That being said, Mr Coppel submits, there was no requirement for a careful analysis of their impact. Nevertheless there was an attempt by the Defendants to gauge who would be affected, but as the documents explain there was limited evidence at that stage of the extent of their impact. The Defendants did however recognise the differential impact on lone parents (who plainly have children) and set out their justification for that impact.
- In Baker v Secretary of State for Communities and Local Government [2008] EWCA Civ 141 Dyson LJ, as he then was, at para 31 answered the question "What is due regard?" as follows:
"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."
- In the present case the Defendants undertook a statistical analysis of the available data. The analysis revealed a differential impact on women. In their Equality Analysis the First Defendant noted in a section headed "Gender" that
"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 same section of the Analysis states under the heading "Risk of negative impacts and litigation"
"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."
- In Piper and others v Secretary of State for Work and Pensions [2012] Pens LR 31, Elias LJ considered the claim that the Equality Impact Assessment was defective in that it did not go into sufficient detail to analyse the full adverse impact which the change from the Retail Price Index to the Consumer Price Index would have on women. He stated:
"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."
- The First Defendant's Equality Analysis refers specifically to children and the fact that the proposed regulations will affect support for children in this group, albeit it does not, as Ms Mountfield observes, consider the degree and extent to which they will be affected. Mr Coppel submits that the Claimant is entitled to child support maintenance. Ms Mountfield accepts that there may be such an entitlement (whether or not enforceable in a particular case); she stated that there is a practical problem for the Claimant in obtaining child support as she does not know where her husband is at the present time.
- The Second Defendant's Equality Statement also noted that
"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."
- I consider that the Equality Analysis and Equality Statements show that the Defendants were aware of the equality implications of the proposed Amending Regulations. Regard was properly had to countervailing considerations. That being so, it was for the decision maker to determine the weight to be given to the various factors unless the assessment by the decision maker is unreasonable or irrational (R (Brown) v Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin), per Aitkens LJ at para 82).
- In my judgment the Claimant has not made out breach of the public sector equality duty.
Conclusion
- For the reasons I have given, this claim fails.
