R (Sanneh & Others) v. Secretary of State for Work and Pensions [2015] C.M.L.R. 27

These were five conjoined appeals concerning whether and in what circumstances a non-EU citizen with an EU law right to reside in the UK as a ‘Zambrano carer’ is entitled under EU law to social benefits to which UK citizens and EU citizens with a right to reside in the UK are entitled. Arden LJ (with whom Elias and Burnett LJJ agreed) held, amongst other things, that:

1. The denial of benefits to a Zambrano carer in circumstances where the effect would be to leave them and their EU citizen dependant(s) destitute would be in breach of Articles 20-21 TFEU, since it would undermine the benefits of the dependant(s)’s EU citizenship. The Secretary of State’s submission, upheld by Supperstone J. below, that a Zambrano carer has no entitlement to social benefits in any circumstances was rejected.
2. The support available under s.17 of the Children Act 1989 is sufficient to avoid destitution and thus sufficient to discharge the UK’s obligations under Articles 20-21 TFEU in this context.
3. Zambrano carers are not within the personal scope of Article 18 TFEU, which prohibits discrimination on grounds of nationality, since that provision only applies to EU citizens. Any discrimination between their entitlement to benefits and that of UK citizens and/or EU citizens with a right to reside in the UK therefore does not engage EU law.
4. In any event, any discrimination is indirect (and thus capable of justification) and justified on grounds of proportionality. A fact specific proportionality exercise on the facts of each individual case is not necessary.
5. Conclusions (3) and (4) are not acte clair but it was not appropriate to make a reference to the CJEU “at this stage of the proceedings” (per Elias LJ at para. 172).

An application for permission to appeal to the Supreme Court is pending. Richard Drabble QC appeared for HC, instructed by Platt Halpern Solicitors. Charles Banner appeared for the AIRE Centre, who intervened by way of written and oral submissions, instructed by Herbert Smith Freehills LLP. Stephen Knafler QC appeared for Sanneh.