Zambrano, benefits and local authority support: High Court Judge says s17 is ‘neither here nor there’
By Michael Bates
Judgement in Sanneh v Secretary of State for Work and Pensions and Anor  EWHC 793 (Admin) was handed down on 10 April 2013 and Mr Justice Hickinbottom decided that Ms Sanneh’s case for interim payments of Income Support, Child Benefit and Child Tax Credits on the basis of Zambrano, ‘falls at the first hurdle’. He held that even without access to mainstream benefits, Ms Sanneh’s EU citizen daughter, Awa, would not be threatened with removal from the EU. This was because Birmingham City Council is currently providing support instead.
Stephen Knafler QC and Desmond Rutledge of counsel for the Claimant made good arguments for applying Zambrano on the basis that Ms Sanneh would, sooner or later, be forced to leave the EU with Awa if she continued to be denied access to mainstream benefits. The Government’s lawyers replied that the Zambrano right would only arise if and when the risk of removal from the EU is imminent.
The appeal of the substantive Income Support decision (which is now at the permission stage before the Court of Appeal) was always going to be determinative of how Zambrano impacts on entitlement to benefits. But the application for judicial review of the refusal to make interim payments of benefit gave the High Court the opportunity to make a provisional assessment of the issue. However, Hickinbottom J effectively adopted the Upper Tribunal’s analysis in CIS/1371/2012 in holding that the refusal of mainstream benefits or payments in the interim would not have the inevitable consequence that Ms Sanneh would have to leave the EU with her daughter due to economic pressure.
Despite producing ample evidence of the detrimental effect of local authority support through section 17 of the Children Act on the welfare and best interests of children, the Judge did not engage with our argument that it is not in the public interests to allow children to continue to be ‘warehoused’ in unsuitable temporary accommodation on weekly incomes far below that of minimum benefit levels saying that the only possible challenge to the refusal to make interim payments of benefit was by way of EU law and as the British child’s right to remain in UK was not in jeopardy, EU law was not engaged. Hickinbottom J, in his refusal of permission to appeal stated:
She contends that it is inappropriate for that support to be given – she should receive mainstream benefits support – but that is neither here nor there so far as her daughter’s right of residence is concerned. That is safe. There is no argument for saying that the s17 support must be left out of account. It is state support. It prevents any possibility of the Claimant’s daughter having to leave the UK, at least during the period that it will take to determine her benefit entitlement.
This decision goes to the heart of the battle between the local authority and central government for the provision of support and services to the vulnerable and the destitute. Ms Sanneh intends to seek to appeal this decision. Suffice to say that Zambrano will continue to be a battleground in this and other litigation for a while longer.