Fratila and Tanase v SSWP & AIRE Centre  EWHC 998 (Admin); Fratila and Tanase v SSWP & AIRE Centre  EWCA Civ 1741
Current status: Court of Appeal judgment handed down 18 December 2020. Read the Court of Appeal judgment. Secretary of State granted permission to appeal by Supreme Court on 22 February 2021. The stay on implementing the Court of Appeal Order, which struck down the regulations challenged was extended until the Supreme Court judgment. The case had been listed to be heard on 18 and 19 of May 2021 but is now stayed to await the decision in C-709/20 Department for Communities (NI) - a CJEU case that raises the same issue and judgment in which is due on 15 July 2021. CPAG has, in light of the fact it will now take longer for this issue to be resolved, asked the Supreme Court to lift the stay on implementing the Court of Appeal Order and the Supreme Court has indicated it will consider this on or after 15 July 2021.
Update 26 July 2021: We will update page later this week in light of C-709/20 CG v DfC(NI).
CPAG brought judicial review proceedings on behalf of two EU nationals, a severely disabled man and his carer, who were refused universal credit on the basis that their limited leave to remain in the UK under Appendix EU to the immigration rules (‘pre-settled status’) was not a qualifying right of residence for the purposes of means-tested benefits.
On 27 April 2020, the High Court dismissed the claim. The Claimants sought permission to appeal and, following the grant of permission by the Court of Appeal, the Court found in favour of the Appellants/Claimants in a judgment handed down on 18 December 2020.
The claimants, Ms Fratila and Mr Tanase are Romanian nationals who came to the UK in 2014 and 2019 respectively. In 2019, each was granted limited leave to remain in the UK under the EU Settlement Scheme (also known as ‘pre-settled status’).
Having obtained pre-settled status, both claimants applied for universal credit but were refused on the grounds that their pre-settled status was not a sufficient right to reside to enable them to access means-tested benefits.
It was argued on behalf of the two claimants that the non-entitlement to benefits, despite having limited leave to remain in the UK with no conditions restricting recourse to public funds, is in breach of the EU right not to be discriminated against on the ground of nationality in comparison with UK nationals, a right which has direct effect. As a result of such unlawfulness, the claimants requested that the Social Security (Income-related Benefits) (Updating and Amendment) (EU Exit) Regulations 2019 are quashed.
The Divisional Court hearing took place on 18 – 19 February 2020 and judgment was given on 27 April 2020, dismissing the claim and refusing permission to appeal.
The High Court (Swift J) held that Ms Fratila and Mr Tanase were correct to submit that as EU nationals legally resident in the UK under domestic law (because they had pre-settled status) they could rely upon Article 18 TFEU to protect themselves against unlawful discrimination on the grounds of nationality. However, the Court held that the discriminatory treatment they had suffered was lawful because it was justified. Read the High Court judgment.
COURT OF APPEAL
The Court of Appeal granted an application for permission to appeal against the decision of the High Court on 29 May 2020. The appellants (claimants) application for the case to be expedited was not granted but the hearing took place on 27 – 28 October 2020. Judgment was handed down on 18 December 2020, allowing the appeal.
CPAG successfully argued that case law has established that EU nationals with a right of residence under domestic law cannot be treated differently to a UK national in relation to access to social security. The Court found unanimously, that under EU law, as it applies in the UK up to the end of the transition period on 31 December 2020, the fact that the UK had granted under its national law a right of residence to Ms Fratila and Mr Tanase means they are entitled to rely on the EU Treaty’s prohibition on discrimination, including in relation to social assistance.
A majority of the 3-judge Court further found that the exclusion of pre-settled status as a sufficient right to reside for the purposes of claiming means-tested benefits was prohibited as made clear in previous cases. The same majority found that the rule was directly discriminatory on the grounds of nationality and as this type of discrimination is not capable of being justified under EU law, it was unlawful. The decision means that those with pre-settled status who are present in the UK can now rely on that status in order to meet the habitual residence requirement for means-tested benefits.
In his leading judgment, Lord Justice McCombe agreed with CPAG’s argument that once a right of residence had been granted by the UK, the discrimination was prohibited outright:
“It is perhaps not surprising that EU law should, in principle, allow EU nationals to take benefit from particular national laws of individual States if they lawfully reside in the State in question, without discrimination on the basis of nationality. Such entitlement would be entirely consonant with the aims and objects of the Union.”
The Order of the Court of Appeal quashes both the legislation which provides that having ‘pre-settled status’ is not a sufficient right to reside for the purposing of accessing means-tested benefits and the decisions of SSWP refusing Ms Fratila’s and Mr Tanase’s claims for universal credit. The Court of Appeal also refused SSWP’s application for permission to appeal.
However, the Court granted a short stay to 26 February 2021 during which time its quashing order did not have effect. The effect of the quashing of the legislation is that, once the stay is lifted, anyone with pre-settled status satisfies the ‘right to reside’ test for access to means-tested benefits.
The Supreme Court has granted the SSWP permission to appeal. It also extended the stay in implementing the Court of Appeal Order. The case had been set down for hearing on 18 and 19 May 2021. However, there is another case now pending in the Court of Justice (C-709/20 Department for Communities) which is a referral from a Northern Ireland Appeal Tribunal and raises the same issue as in Fratila. The Supreme Court hearing did not go ahead as its decision has to await the judgment of the Court of Justice (whose decision the parties accept will bind the Supreme Court).
CPAG have asked the Supreme Court to reconsider whether the Order from the Court of Appeal should remain stayed pending its own decision, given there is now likely to be further delay. The Advocate General's Opinion in the C-709/20 case was given on 24 June 2021, and the Grand Chamber of the Court of Justice will deliver its judgment on 15 July 2021. The Supreme Court has indicated that it will consider whether to lift the stay on the Order of the Court of Appeal once it has seen the Court of Justice judgment.
WHAT CAN A CLAIMANT IN A SIMILAR POSITION DO?
[NOTE - this section and the note will be updated as and when appropriate]
CPAG have prepared this advice for claimants and their advisers (note this is the fourth version of the advice which we update as things develop).
Despite the quashing of the regulations being stayed until the Supreme Court judgment, claimants should still act now to protect their rights. Further, claimants should check back to this page in late May or early June to find out if the Supreme Court has lifted the stay and therefore whether they may be able to obtain payment on a discretionary basis whilst the litigation is still ongoing.
- Claimants with pre-settled status who have failed the habitual residence test in relation to a claim for means-tested benefits should apply for a “revision” of the decision (mandatory reconsideration), if they have not already done so.
- Claimants who have already had a mandatory reconsideration refused should immediately appeal against the decision to the first-tier tribunal, relying on the Fratila Court of Appeal decision. These appeals may need to be stayed.
- Claimants with pre-settled status who have not yet made a claim for benefit should claim benefits to which they think they are entitled as soon as possible.
Please note that this webpage (and note for advisers) is up to date at the time of writing (01 July 2021) and advisers should check back regularly for updates.