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Nationality Discrimination and EU law judgment from the Court of Appeal

The Court of Appeal on 10 February 2015 has handed down
judgment in the case of R (Sanneh) v SSWP and others [2015] EWCA Civ 49. Click here for the judgment. 

These four conjoined appeals concerned the question of
whether “Zambrano carers” (non EU citizens responsible for looking after an EU
citizen child in the UK, without whose care that child would be forced to leave
the UK) are entitled to benefits in the UK on the same basis as EU citizens. 

The Court of Appeal (Arden LJ giving the lead judgment)
concluded that they were not. 

In summary Arden LJ held that: 

• Non EU “Zambrano” carers are entitled to “basic
  support” within the UK (para 26 and 86);
• The level of that basic assistance is governed
  exclusively under national law and is not reviewable under the proportionality
  test (para 27 and 95);
• Only EU citizens can rely on the principle of
  non discrimination on grounds of nationality under Article 18 TFEU (para 29 and
  106);
• The differential treatment of Zambrano carers
  and other benefits claimants is not direct discrimination on grounds of
  nationality (at para 103 applying Patmalneice v SSWP [2011] 1 WLR
  983);
• If a measure is indirectly discriminatory on
  grounds of non EU nationality, national law (by reference to Article 14 ECHR)
  requires that the differential is objectively justified (para 29 and 115);
• The EU Charter does not assist a Zambrano carer
  (para 117);
• There was also no breach of the public sector
  equality duty (paras 118-122). 

This is a complex and fast moving area of law. If you would
like further assistance or advice on how this case affects your rights under EU
free movement, equality law or under purely national law, please do not
hesitate to contact our clerks or Katherine Apps. 

Katherine Apps appears
for and advises both claimants and public bodies in EU and national equality,
public, sports and immigration law and has a particular interest in free
movement.