Sanneh and Others – access to welfare for Zambrano carers


Dr Iyiola Solanke

If citizenship is the fundamental status for EU citizens, what is its substance for child citizens who are too young to enjoy the rights set out in Articles 21-23 TEU to work, travel, vote or petition the EP? What does the principle in EU law of ‘genuine enjoyment of the substance of citizenship’ mean if you are a child? And what are the implications for your parent or parents? These are central questions for a specific group of children now growing up across the EU – those who themselves hold EU citizenship but their parents do not. As stated in the Zambrano case,  the parents of such ‘Zambrano Minors’ derive a right of residence in the EU so that the child is not deprived of the genuine substance of Union citizenship. Although the Court of Justice has subsequently considered when this genuine enjoyment is impinged (Macarthy, Dereci, O & O) it has not made any remarks on the substance of citizenship rights for the children. It may be necessary for it to do so to prevent these children from being consigned to lives of poverty by national interpretation of its principle.

The Court of Appeal has delivered a decision concerning access by the parents of Zambrano Minors to social assistance. The parents challenged the Regulations adopted by the Coalition Government to incorporate the Zambrano principle into national law. Three Regulations were designed to specifically exclude these parents from rights to social assistance that they would otherwise have as lawfully resident persons. In line with its policy to make Britain hostile to immigrants, the Government decided that these parents should be in the same position as those who do not have a lawful right to reside. The ‘Amendment Regulations’ therefore exclude all ‘Zambrano Parents – those in work and those out of work – from income-related benefits including income support, jobseekers allowance, employment allowance, pension credit, housing benefit, council tax benefit, child benefit and child tax credit. The Home Office justifies this policy as a measure to prevent and deter ‘benefit tourism’ but the parents argued that this policy was a faulty application of the Zambrano principle and discriminatory under EU law. It was argued that a proper application of the principle called for them to be in the same position as other EU nationals.

The Justices agreed with the Home Office. Drawing upon the ‘effective citizenship principle’, they held that

  1. Rights derived from an EU citizen [3] are not EU rights [95]. Thus although ‘their status is derived from the EU citizenship rights of the child as interpreted by the CJEU’ ‘EU law has no competence in the level of social assistance to be paid to the carer’. This is ‘exclusively governed by national law’ [27];
  2. ‘Zambrano carers’ derive their right to reside from Article 20 TFEU and therefore fall outside the EU cross-border social benefits legislative scheme (the ‘EU CBSBL scheme’) set out in the Citizenship Directive, the Long Term residence Directive and the Family reunion Directive [42];
  3. ‘Genuine enjoyment’ does not ‘require the State to guarantee any particular quality of life’ [32 & 171] – a ‘Zambrano carer’ is protected from compulsion to leave but this does not provide as a corollary a right for parent and child to live free from want and poverty. Zambrano carers are not to be left ‘destitute’ but member states remain free to determine access to benefits where individual situations fall outside of the scope of EU Directives [83];
  4. The proportionality principle is irrelevant because the question is beyond the scope of EU law;
  5. The EU principle of non-discrimination in EU law and the ECHR is inapplicable.


This is an interesting judgment that does contain a key piece of good news – that the status of Zambrano carer arises immediately – but also raises many questions. The discussion below briefly comments on just a few issues, primarily the idea of effective citizenship’ non-discrimination and the rights of the child in EU law.

  1. The ‘effective citizenship principle’

The ‘effective citizenship principle’ in EU law is taken to mean that ‘member states may not indirectly remove the benefits of a person’s status as an EU citizen’ [5]. It is a broad principle, which LJ Arden locates in CJEU jurisprudence arising from cases such as Baumbast and Chen [68]. The principle calls upon member states to avoid decisions that make ‘the rights of EU citizenship ineffective.’ Although Zambrano was not a cross-border case, LJ Arden does not see it as an exception and places it within this line of case law [71]. It is unclear why Zambrano carers are then subsequently placed outside of the cross-border benefits scheme [108] and do not enjoy a right to non-discrimination. My question is thus: if citizenship, as the fundamental status for EU citizens, does not secure equal treatment for the parents of Zambrano Minors, so that their family may thrive rather than just survive, then how effective is the citizenship principle for them? What use is the protection under EU law of the ‘genuine enjoyment’ of this status?

  1. Non-discriminaton

The case highlights a range of provisions in EU law prohibiting discrimination – Article 18 TFEU, Article 14 ECHR and Article 21 CFR – but none of these are helpful. The CA held that a national of a non-EU country does not enjoy a right to non-discrimination on the ground of nationality under Article 18 TFEU. This conclusion is based on Vatsouras [106], where the CJEU stated that this provision

52… concerns situations coming within the scope of Community law in which a national of one Member State suffers discriminatory treatment in relation to nationals of another Member State solely on the basis of his nationality and is not intended to apply to cases of a possible difference in treatment between nationals of Member States and nationals of non-member countries.

However the situation in Vatsouras was the reverse of the current applicants: there, an EU national had attempted to use Article 18 TFEU to gain access to a benefit granted to nationals of a non-EU country; here non-EU nationals sought to use it to gain access to benefits granted to EU nationals. In Vatsouras, the CJ held that Article 18 does not

53 …preclude national rules which exclude nationals of Member States of the European Union from receipt of social assistance benefits which are granted to nationals of non-member countries.

The CA thus conclude that Article 18 also does not preclude national rules that exclude nationals of non-EU countries from benefits given to EU nationals. That conclusion may seem logical but given the consequences for the child EU citizen, it may warrant re-consideration.

The CA also cites the tolerance of reverse discrimination under EU law as evidence of the limited application of that principle [114]. It then looks to human rights law and finds that the test for non-discrimination under Article 14 ECHR is not satisfied: it cannot be shown that the legislative policy of the Home Office is ‘manifestly without foundation’ [115]. Nor can Article 21 CFR be relied upon because it ‘only applies to acts of the member states when they are implementing EU law’ [117].

It is not clear why the application of an EU law principle is not an application of EU law under Article 21 CFR – without EU law, this principle would not exist in national law. It is also not certain that the silence of the CJEU on reverse discrimination in Zambrano indicates complacency on that matter. In relation to Article 14 ECHR, it is not conclusive in the absence of compelling proof of ‘benefit tourism’ that there is a need to deter immigrants from settling in the UK, in other words that the UK legislative policy is manifestly well founded. The judgment repeats the Home Office justification [96] but does not refer to any evidence placed before the Court that brought it to an independent conclusion that the reasons given by the Home Office have some foundation [29]. Even if this were so, the Regulations may go beyond what is necessary to achieve their aim: they apply to Zambrano carers who are in work as well as those who do not work thus disqualify tax-payers alongside the economically inactive. Given this broad outcome, the CJEU may find the means neither appropriate nor necessary even if the aim was held to be legitimate. However, the proportionality of the Regulations is not considered at length as the CA decides that this is a matter for national law.

  1. Suffer the children – the rights of the child in EU law

If citizenship is the fundamental status for EU citizens, what is its substance for child citizens who are too young to work, travel, vote or petition the EP? EU law does not mention any specific rights for children. However in 2011, the Commission adopted a Communication setting out an EU Agenda for the Rights of the Child (COM (2011) 60). It highlighted the emphasis in the Lisbon Treaty on the promotion and protection of the rights of the child for example in Article 3(3) TEU which explicitly requires the EU to promote the protection of the rights of the child or Article 24 of the Charter which recognises children as independent and autonomous holders of rights. International obligations including the United Nations Convention on the Rights of the Child (UNCRC) are cited as the source of the standards and principles that should guide EU policies and actions in all matters that have an impact on the rights of the child. The Commission declares that:

‘In view of the strong and reinforced commitment to the rights of the child in the Treaty of Lisbon and in the Charter of Fundamental Rights, the Commission believes it is now the time to move up a gear on the rights of the child and to transform policy objectives into action. The Europe 2020 Strategy sets out a vision for the 21st century of a Europe where the children of today will have a better education, access to the services and to the resources they need to grow up and, one day, lead Europe into the 22nd century. This is why the Commission, with this Communication, advocates “An EU Agenda for the Rights of the Child”. The purpose is to reaffirm the strong commitment of all EU institutions and of all Member States to promoting, protecting and fulfilling the rights of the child in all relevant EU policies and to turn it into concrete results. In the future, EU policies that directly or indirectly affect children should be designed, implemented, and monitored taking into account the principle of the best interests of the child enshrined in the EU Charter of Fundamental Rights and in the UNCRC.’

Children arguably do not need much – food, shelter, warmth, play, tenderness, education, fresh air and a safe place to sleep – and the Agenda does not include a list of specific rights. Rather it highlights a number of areas of concern for child safety and a range of initiatives designed to protect them, including from poverty. This agenda is clearly at odds with the continuing UK government policy of creating a hostile environment for immigrants, not only through policy but also using law. Far from setting out a positive vision for children, current UK policy is to consign Zambrano Minors, who are full British citizens, to a life of exclusion from the mainstream services and resources that they or their parents may need. Contrary to growing up to lead Europe into the 22nd century, they may become a new underclass in Britain and perhaps other parts of the EU. The stance of the government is effectively to punish the children for the ‘sins’ of their parents, the ‘sin’ being simple possession of the ‘wrong’ (ie. a non-EU) nationality. Given that a large proportion of these parents come from countries in Africa and the Caribbean, the Regulations may be indirectly discriminatory on the grounds of race. Although the question of discrimination was considered, this particular aspect was not raised.

It is hard to square a policy designed to restrict parents to emergency support under Section 17 of the Childrens Act with the obligations in international law or the Commission agenda outline above. In addition there are many points where it would have been helpful to read of the authorities upon which conclusions were based. For example, the decision provides no authority for the interpretation that derived EU rights are not EU rights [95]. It would seem reasonable for derived rights to retain the character of their source.  Explanation of the reliance on the decision in Dano would also be helpful given that in that case the claimant had no right of residency [83]. Even though the CA listed six reasons why a CJEU preliminary ruling was not necessary [123 ff], this may therefore not be the last word of the judiciary on the Amendment Regulations.

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