Fratila and Tanase v SSWP CO/3632/2019
CPAG brought judicial review proceedings on behalf of two EU nationals 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 Court dismissed the claim. The Court of Appeal granted permission to appeal on 29 May 2020.
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 case was heard on 18 and 19 February 2020. On 27 April 2020, the High Court dismissed this claim for judicial review and refused permission to appeal. The Court 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 justified.
The judgment is now available.
The Court of Appeal granted an application for permission to appeal against the decision of the High Court on 29 May 2020. The Claimants application for the case to be expedited and heard prior to 31 July 2020 was not granted. The Claimants will argue that although the Court of Justice has not considered whether discrimination of this sort is direct (which would render it incapable of justification) or indirect (which would mean it could be lawful if justified) it has been clear that such discrimination is prohibited and the Claimants say that is the correct answer to their claim.
If you represent a claimant who relies on pre-settled status to establish rights to benefits where the right to reside requirement applies and the case is in the Upper Tribunal or the First-tier Tribunal has dismissed the appeal then please get in touch at firstname.lastname@example.org