“Hand-to-mouth” citizenship: decision time for the UK Supreme Court on the substance of Zambrano rights, EU citizenship and equal treatment

Abstract

UK benefit rules strip Zambrano residence rights, for UK national children and their third country national primary carers, of equal treatment entitlement. These rules are challenged in a case pending before the UK Supreme Court. This piece argues that Zambrano creates an EU-citizenship-based right to reside which necessarily entails equal treatment. UK national children in Zambrano families fall within the scope of EU law so are not prevented by the wholly internal rule from claiming equal treatment with EU national children in Teixeira families. And they are protected by equal treatment as a general principle of EU law, which requires equal treatment with other UK national children. The justifications for automatic unequal treatment put forward before, and accepted with alacrity by, the Court of Appeal, are poorly reasoned and ill-matched with the rules in question – most notably because Zambrano families may have strong connections with the UK. A CJEU reference is likely; a Zambrano right is the right to reside in the Union – it is the right to have EU rights. The substance of EU citizenship is at stake.

Keywords:

• EU citizenship
• equal treatment
• Zambrano right to reside
• general principles of EU law
• scope of EU law
• proportionality
• substance of nationality
• real links

Notes

1. The Social Security (Habitual Residence) (Amendment) Regulations 2012 S.I. 2587 and the Child Benefit and Child Tax Credit (Miscellaneous Amendments) Regulations 2012 S.I. 2612.

2. The Immigration (European Economic Area) (Amendment). Regulations 2012 S.I. No. 1547

3. The Social Security (Habitual Residence) (Amendment) Regulations 2012 S.I. 2587 and the Child Benefit and Child Tax Credit (Miscellaneous Amendments) Regulations 2012 S.I. 2612.

4. Regulation 6 of the Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006, as amended, states:‘(1) A person who is not subject to immigration control is to be treated as a person from abroad who is ineligible for housing assistance under Part 7 of the 1996 Act if – (b) his only right to reside in the United Kingdom – (iv) is derived from Article 20 of the Treaty on the Functioning of the European Union in a case where the right to reside arises because a British citizen would otherwise be deprived of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizen’.