What does 'genuine enjoyment' of citizenship rights actually mean? This idea was first introduced by the CJEU in Zambrano, where that Court held it would deprive child EU citizens of the 'genuine enjoyment' of the rights associated with EU citizenship if their parents or primary carers were compelled to leave the EU. This idea of compulsion has been propelled to the fore in HC and Sanneh, to the extent of perhaps eclipsing the notion of 'genuine enjoyment.'
Zambrano arose less than 10 years after the case of Chen and has become equally seminal in the development of the substance of EU citizenship. Whereas in Chen, the Chinese (thus non-EU) parents had taken their child born in Ireland to Wales, thus making Baby Catherine a migrant EU citizen, in Zambrano the children born to Columbian (thus non-EU) parents were stationary – they had not moved from their state of birth – but were nonetheless accorded EU citizenship rights. As there was no migration to engage EU law, the new idea of 'genuine enjoyment' was introduced to perform this function. The CJEU decided in Zambrano that refusal to provide a residence and work permit would compel parental departure from the EU and thus undermine the 'genuine enjoyment' of EU citizenship rights by the child; the refusal was therefore contrary to EU law.
Before anybody could get too excited about the potential of this idea, Dereci and McCarthy clarified that compulsion related solely to practical consequences. The rupture of strong emotional and psychological ties within the family would not demonstrate compulsion to leave – diminution of the enjoyment of family life does not engage Zambrano rights. Nonetheless, Zambrano gave birth to two new important statuses in EU law: the 'Zambrano carer' and the 'Zambrano citizen.' The latter refers to a non-migrant minor EU citizen; the former to the primary carer of such a citizen. A Zambrano carer – by definition a non-EU citizen, in practice mostly female and predominantly black [1] – derives crucial rights of residence in order to effect the 'genuine enjoyment' of the rights of Zambrano citizens. This status of 'Zambrano carer' has since its introduction become extremely valuable to mothers, who would otherwise struggle to gain residence rights without relying on their partners. For some, such as HC [2], this liberates them from domestic violence. For others who may be abandoned, like Sanneh [3], it provides a lifeline preventing expulsion to unhappy lives elsewhere.
Member state authorities were made anxious and Zambrano, like Chen, has had significant consequences in national law. In response to the CJ ruling in Chen, Ireland changed its rules on acquisition of nationality; following Zambrano, Britain changed the rules on access to certain forms of welfare. In 2012, at the same time that the EEA Regulations 2006 implementing Citizenship Directive 2004/38 were amended to give effect to the Zambrano decision, secondary legislation was introduced to exclude all Zambrano carers – both those employed and unemployed – from eligibility for social security benefits, child tax credits and housing entitlements. These Immigration (European Economic Area) (Amendment) (No.2) Regulations 2012 (the 'Zambrano Amendments') entered into force on 8 November 2012. Since then, Zambrano carers have been banned from all mainstream benefits under national law. Both HC and Sanneh challenged the legality of this ban.
The Facts
HC arrived in the UK from Algeria in 2008 on a six-month visitors' visa. In 2010 she married Mr H, a British national of Egyptian origin and they had two children. In October 2012, before the birth of her second child, she fled the marital home due to domestic violence. She sought refuge with her sister in Oldham but could not stay there in the long term. Jamil Sanneh arrived in the UK from Gambia in 2006 on a student visa which did not permit her to work or to have recourse to benefits or other public funds. In September 2009 she had a child with a Gambian divorcee who had gained British citizen by his first marriage. The two did not marry but the daughter, Awa, became a British citizen through her father. Her visa expired in December 2009 and was not extended due to withdrawal of family financial support. Awa's father apparently had no interest in his new family and shortly after her birth Sanneh became Awa's sole carer. These two African women became financially stricken mothers of black EU citizens.
Both women claimed residence rights as Zambrano carers – this was not challenged. Their difficulties arose when they sought access to welfare benefits as Zambrano carers. HC was financially dependent upon her husband and had no resources of her own. She approached Oldham Council for assistance in November 2012. This was initially refused but limited emergency and temporary housing and financial assistance was eventually provided under the s.17 of the Children Act 1989. Section 17 is designed to prevent childhood destitution on a residual, temporary, short-term emergency basis by providing minimal support. Under this provision, from August 2013, she and her children were placed in interim housing in a two-bedroom accommodation and given £55 per week for food and £25.50 for bills.
Sanneh also struggled. When she finally received the benefits wrongly paid to Awa's father, she had a monthly income of £477 made up of child benefit, child tax credit and child support. She supplemented her income with short term loans and irregular payments from Awa's father but struggled to cover all costs – her monthly payments included £250 a month rent, £55 council tax, £25 water rates and £50 for gas and electricity. She and Awa lived on food parcels. In June 2011 as she was prohibited from working she applied for income support, which was refused. In July 2011 she applied for interim payments and these were also refused. Her situation deteriorated in 2012: in January she was evicted and had to be rescued by provision of emergency housing; in April her child tax credit was withdrawn; in August her child benefit was withdrawn. She was then granted income support from 14September 2012. However, as she was granted permission to work on 1 September 2012, income support was withdrawn on 8 November 2012. In January 2013, the original decision was set aside and remade due to an error on a point of law made by the First Tier Tribunal. [4]
The Claims
Both mothers brought claims for access to mainstream social security benefits including income support, child tax credit and child benefit. In April 2013 Sanneh challenged the lawfulness of decisions by the Secretary of State refusing her payments of income support and suspension of an award of income support. As these decisions were inherently lawful [5], she argued before the Queens Bench that the denial of access to child benefits gave rise to a situation where she would be forced to leave the United Kingdom due to lack of means – in the absence of an alternative carer she would have to take her daughter with her – this was analogous to the situation in Zambrano. [6] Her counsel also argued that compulsion to leave would arise where a Zambrano carer was prevented from working: in Zambrano, he argued, the court raised an irrebutable assumption that withholding a right of residence and the ability to work from a non-EU carer upon whom an EU child is dependent would compel the parent and hence the child to leave EU territory. Thus 'where a parent cannot work (for either legal or practical reasons), it must be assumed that without a right of residence and an entitlement to mainstream non-contributory benefits, such a result will equally follow.' [7]
HC specifically challenged the legality of the 2012 Zambrano Amendments, which denied her access to mainstream welfare benefits and housing provision, in particular the Social Security (Habitual Residence) (Amendment) Regulations 2012; the Allocation of Housing and Homelessness (Eligibility [8] ) (England) (Amendment) Regulations 2012; and the Child Benefit and Child Tax Credit (Miscellaneous Amendments) Regulations 2012. She argued that they not only undermined the practical effect of the Zambrano doctrine but because they discriminated against Zambrano carers and their EU national children are unlawful. She claimed that
'5. … 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.
Counsel for HC argued that the Zambrano amendments were inherently discriminatory on the basis of nationality and sex. In relation to nationality, the preclusion of recourse to public funds was designed to target third country nationals and therefore inevitably also directly discriminated against their children of EU citizenship and British nationality:
'21. 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.'
In relation to sex, the Zambrano amendments were indirectly discriminatory – HC was
1. … 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.
There was no justification for this discrimination.
Both women therefore claimed rights to live and work in the UK as Zambrano carers. Sanneh argued that a parent who was prevented from working and access to benefits would be compelled to leave; HC did not argue compulsion to leave [9] but that as the third country national parent of two British children resident in the UK, she should have EU law rights to reside and work in the UK, derived from her children's rights to reside as EU citizens. [10] The relevant question for the courts was thus how, in the face of the concept of 'genuine enjoyment' of EU citizenship to interpret the blanket ban on access mainstream welfare, regardless of work, introduced by the Zambrano Amendments – does 'genuine enjoyment' require more than just skeleton welfare that may leave both carer and child on the brink of poverty and destitution? In other words, does a borderline and unstable existence equate to compulsion to leave?
The Decisions
In Sanneh, Hickinbottom J rebutted all arguments, essentially because Sanneh coped too well. In his opinion, Zambrano carer cases rest upon evidence of absolute compulsion to leave in the absence of the claimed rights, in this case child benefits. He decided that her continued presence showed clearly she had been able to survive without them:
95. In my judgment, the Claimant's claim in these proceedings falls at the first hurdle, because she cannot make good the first proposition upon which the claim is based, namely that the failure of the Defendants to pay the Claimant the benefits pending the ultimate resolution of her entitlement puts her daughter's rights as an EU citizen to reside in the United Kingdom in jeopardy ….96… If I were required to make a finding on the evidence, I would unhesitatingly conclude that it does not. The Claimant and her daughter have been in the United Kingdom for nearly four years, for the most part without significant benefit support.
Thus her desperate and precarious conditions notwithstanding, it was held that Sanneh failed the Zambrano test of compulsion. Under Section 17, she would be provided with housing and basic income; she also now had the right to work. The judge noted her 'management and human resources skills' and concluded that '…all of the evidence points to the Claimant being absolutely determined to stay in the United Kingdom, and there being no realistic possibility of her leaving because of financial circumstances…' [11] Her counsel ultimately admitted that she was unlikely to leave the UK under any circumstances. Thus Hickinbottom J ruled that 'there was no realistic prospect of the Claimant being compelled to leave the United Kingdom' – the right of Awa
'as an EU citizen to reside in the territory of the EU is not in jeopardy, and will not be in jeopardy in the period during which the Claimant's entitlement to the benefits will be determined. In those circumstances, EU law is simply not engaged at all: there is no EU law right that requires the protection of this court, now.' [12]
In HC, [13] Supperstone J referred regularly to Sanneh, citing in particular Hickinbottom's literal approach to compulsion to leave. Compulsion would practically only arise through deportation or '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).' [14] It did not arise from a ban on access to welfare benefits. Supperstone opined that the Zambrano right to residence did not confer a right to receive social benefits [15] and that the refusal of such a right did not amount to direct nationality discrimination, [16] associative discrimination, [17] reverse discrimination. [18] He did acknowledge that there may be indirect nationality discrimination [19] but found that this was justifiable:
59… 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.
HC was therefore put in the same category as a 'benefit tourist', rather than treated as the mother of a British and EU citizen. Zambrano carers who work will be treated in the same way.
Comment
The Zambrano Amendments were specifically designed to 'ring-fence' mainstream benefits from Zambrano carers. This raises questions not only about the ethics of excluding working migrants – the majority of whom are women of colour – but also about the likely childhood experiences and integration of a new generation of black British/ EU citizens raised under such exclusionary conditions. As a result of the Zambrano Amendments, such children will not receive entitlements such as free school meals, school uniforms or travel passes regardless of whether their mother works or not. Work status does not alter the characteristics of the Zambrano rights – they are non-autonomous, derivative, time-limited and limited in scope. [20]
These decisions suggest that Zambrano carers have no right to expect support to provide safe and secure beginnings for their Zambrano citizen child. They should expect the scorn, rather than the support of the state. Zambrano carers should expect to be seen and treated as de facto 'benefit tourists.' For Zambrano citizens, who differ from other citizens only because they remain in the country of their birth, it means they have no right to the quality of life guaranteed to their fellow citizens: this was articulated by Supperstone J in response to the argument that Article 24 of the Charter called for the best interests of the child to be considered:
70… 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.
There is therefore no guarantee to a particular quality of parenting as a Zambrano citizen, only its existence. Of the Titmuss trilogy of social, political and civil citizenship, Zambrano citizens should only expect full enjoyment of the latter two categories. It is questionable whether partial enjoyment of citizenship is genuine enjoyment.
It is debatable that the CJEU would agree with this narrow interpretation of 'genuine' enjoyment. It would of course have been possible to refer questions to the CJEU, using the preliminary reference procedure under Article 267 TFEU. Community law centres often request this but the Birmingham Law Centre, which supported Sanneh, closed in July so was clearly not in a position to do so. [21] Nonetheless, Hickinbottom J could have referred a question of his own volition. As law centres and citizens advice bureaux across the country close due to legal aid cuts, judges themselves need to be more mindful of this option to ensure continued access to justice for the poor and vulnerable.
The literal approach to the questions raised delivered decisions that place Zambrano rights in a matchbox. The judicial approach in these two cases is consistent with the governmental goal to make Britain hostile to immigrants. As seen in the immigrant ad vans over the summer, it will do this by any pernicious means necessary. David Cameron made clear in his recent statements that this campaign includes migrants from the EU who have rights under EU law. Introduction of punitive measures via the Zambrano Amendments now extends that hostility to a new generation of those British citizens who happen to be born to migrant parents. These predominantly black citizens are potentially condemned – by reason of nothing more than the nationality of their parent – to a life of inequality. It is hard to see why this does not constitute unlawful race discrimination. One can only imagine what might be achieved if the government were to promote equality as doggedly and creatively as it pursues hostility.
The government policy of hostility to immigrants is furthermore inconsistent with the EU goals set out in the Europe 2020 Strategy and the Stockholm Programme to 'fully recognise the potential of migration for building a competitive and sustainable economy' and 'achieve the effective integration of legal migrants, underpinned by the respect and promotion of human rights.' As stated by the European Commission,
If the full benefits from migration are to be realised, Europe needs to find a way to better cope with its diverse and multicultural societies through more effective integration of migrants.
Apparently, 'Member States have confirmed their commitment to further developing the core idea of integration as a driver for economic development and social cohesion, in order to better enhance migrants' contribution to economic growth and cultural richness.' [22] If so, the Amendments are just another example of a government not keeping its word.
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[1] 57% of Zambrano carers have Nigerian, Jamaican or Ghanaian nationality. In their gender equality analysis, the DWP noted that 94% of Zambrano carers are lone parents and of these only 21% are men, meaning 79% are women. See https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/220217/eia-zambrano-right-to-reside-and-work.pdf
[2] HC v Secretary State for Work and Pensions [2013] EWHC 3874 (Admin)
[3] Sanneh v Home Secretary [2013] EWHC 793 (Admin)
[4] Pitchford LJ granted permission to appeal this decision on 18December 2013.
[5] Sanneh [76]
[6] Sanneh [79]
[7] Sanneh [79]
[9] HC [37]
[10] HC [5]
[11] Sanneh [96]
[12] Sanneh [103]
[13] Sanneh withdrew her appeal against Hickinbottom J's decision as a result of the unsuccessful challenge in HC.
[14] Sanneh [39]
[15] HC [42]
[16] HC [43]
[17] HC [45]
[18] HC [47]
[19] HC [51]
[20] HC [49]
[21] http://www.lawgazette.co.uk/71587.article
[22] 'European Agenda for the Integration of Third-Country Nationals' COM(2011) 455 final, Brussels 20.7.2011, p2