R (Fratila & Tanase) v Secretary of State for Work and Pensions
Citation:  EWHC 998 (Admin)
In this case, the Claimants challenged Regulation 9(3)(c)(i) of the Social Security (Income-related Benefits) (Updating and Amendment) (EU exit) Regulations 2019 (“the Regulations”) on the ground that, although those with pre-settled status had been given a domestic right to remain, Regulation 9(3)(c)(i) made them ineligible for social welfare benefits. It did so by deeming that those with pre-settled status did not meet the residence tests.
The Claimants argued that this amounted to discrimination, contrary to Article 18 TFEU, in line with Trojani v Centre Public d’Aide Sociale de Bruxelles  3 CMLR 38 (“Trojani”). The Secretary of State argued that Trojani was no longer good law so that it could no longer be used to support a free-standing discrimination claim where the conditions of the Citizens’ Rights Directive (2004/38/EC) were not satisfied – e.g. where one was not a worker or jobseeker.
Swift J dismissed the Claimants’ claim. He accepted the Claimants’ and the AIRE Centre’s submissions that Trojani remained good law and should be applied on the facts of this case on the basis that the Claimants had been granted a free-standing domestic right of residence. He further found that there was indirect discrimination on the basis of nationality. Applying the Supreme Court’s previous judgment in Patmalniece v SSWP, however, he found that this discrimination could be justified.
Charles Banner QC acted for the AIRE Centre, who were granted permission to intervene by way of written and oral submissions. He was instructed by Andrew Lidbetter, Jasveer Randhawa and Sahil Kher of Herbert Smith Freehills LLP.