European Union – Citizenship

Pryce v Southwark London Borough Council (Secretary of State for the Home Department intervening): Court of Appeal, Civil Division: 7 November 2012

The defendant housing authority, on a review under section 202 of the Housing Act 1996 (HA 1996), decided that the claimant Jamaican national was subject to immigration control within the meaning of the Asylum and Immigration Act 1996 and so was not eligible for housing assistance under section 185(2) in Pt II of the HA 1996. The authority accepted that her children were British citizens and that she was their sole or principal carer for the purpose of regulation 6(1) of the Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006, SI 2006/1294.

She appealed to the county court under section 204 of the HA 1996. She contended that, although she was unlawfully present in the United Kingdom under domestic law, she had a right to residence derived from European Union law as the carer of a British citizen child. That right was, she submitted, derived from article 20 of the Treaty on the Functioning of the European Union, and the Court of Justice of the European Union’s judgment in Ruiz Zambrano v Office National de l'Emploi (ONEm): C-34/09 (Zambrano).

The effect of the ruling in Zambrano was that, where an EU citizen child was within his EU member state of nationality, his EU citizenship might have consequential effects for his parents who were not nationals of any EU member state and who lacked domestic leave to remain and/or permission to work in that state in circumstances where the presence of the parents was necessary so that the child was not deprived of the genuine enjoyment of the substance of the rights conferred by virtue of his status as an EU citizen. The judge held that it was not necessary, for the purpose of giving effect to the children’s rights, to disapply national requirements to apply for leave to remain to work.

Further, the effect of that ruling was that a Zambrano carer (that was, a third-party national carer of UK national children) did have to apply for leave to enter or remain and thus was subject to immigration control for the purposes of eligibility under the HA 1996. The claimant’s appeal was dismissed. She appealed. The authority stated that it would not oppose the appeal and requested that a consent order allowing the appeal be made on a consideration of the papers. The authority made a number of concessions of fact and law and supported a statement of reasons submitted by the claimant for allowing the appeal. The secretary of state for the home department intervened in the appeal.

The claimant submitted that, following the judgment in Zambrano, where a British citizen, also an EU citizen child in the UK, required his non-EU citizen parent to reside in the UK as his carer so that he could genuinely enjoy the substance of the rights conferred by virtue of his status as an EU citizen under article 20 of the Treaty, that non-EU citizen parent who had no other basis to reside in the UK under UK or EU law derived a substantive EU right of residence in the UK. Consideration was given to section 2(1) of the European Communities Act 1972 (the 1972 Act) and section 7 of the Immigration Act 1988 (the 1988 Act).The appeal would be allowed.

Article 20 of the Treaty contained treaty rights which were directly applicable in the UK national legal order by virtue of section 2(1) of the 1972 Act without the need for transposition into national law. A person in respect of whom a refusal of a right of residence would be inconsistent with article 20 of the Treaty in accordance with the principles established by the EU in Zambrano was not a person subject to immigration control for the purposes of s 185 of the HA 1996 or section 7 of the 1988 Act. Whether an applicant had a Zambrano claim was clearly fact-sensitive (see [30], [32] of the judgment).

For the purposes of the claimant's application for housing assistance, the authority (whose responsibility it was to make such a determination) had determined that the claimant met the requirements of the Zambrano principles. The claimant was such a person who derived a right of residence from the EU law and, there being no issue as to habitual residence, was eligible for assistance as homeless under section 185(3) of the HA 1996 and the Regulations as in force at all material times on the date of her application for assistance, including the date of the authority's review decision.

In those circumstances, the appeal would be allowed. However, the judgment had to be read in light of the fact that an important concession had been made by the authority and the court had not heard contrary submissions as to the effect of Zambrano (see [30], [31] of the judgment).

Richard Gordon QC and Adrian Berry (instructed by Deighton Pierce Glynn) for the claimant; Donald Broatch (instructed by the Legal Services Department, London Borough of Southwark) for the authority; Christopher Staker (instructed by the Treasury Solicitor) for the secretary of state.