Fratila & Tanase v Secretary of State for Work and Pensions

Citation: [2020] EWCA Civ 1741

In this case, the Court of Appeal by a majority (McCombe & Moylan LJ; Dingemans LJ dissenting) allowed an appeal by two EU citizens who had been granted pre-settled status under Appendix EU to the Immigration Rules and who challenged the legality under EU law (applicable in the UK until 31st December 2020) of regulations that disentitled them from access to social security benefits.

In preparation for Brexit, and in order to reassure EU citizens in the UK, the Government created new domestic rights by Appendix EU to the Immigration Rules. These came into force on 28th August 2018. Settled status was to be granted to those who had completed five continuous years of lawful presence in the UK, resulting in indefinite leave to remain. Pre-settled status was to be granted to those who had not yet completed five years of lawful presence in the UK, resulting in leave to remain limited to five years. Both settled status and pre-settled status conferred an otherwise unlimited right to reside in the UK.

Subsequently, on 7th May 2019, the Social Security (Income-Related Benefits) (Updating and Amendment) (EU Exit) Regulations 2019 came into force. This removed the ability of those with pre-settled status to claim social security benefits in the form of Universal Credit, on the basis that the right to reside conferred by that status would not qualify as meeting the ‘right to reside’ test for such benefits.

The Appellants and the AIRE Centre (who intervened by way of written and oral submissions) argued that this amounted to unlawful discrimination on grounds of nationality, contrary to Article 18 of the Treaty on the Function of the European Union (‘TFEU’).

The main issue in the case were:

  • whether the matter was within the scope of EU law, so as to engage Article 18 TFEU, having regard to the fact that the right to reside was derived from domestic law rather than EU law;
  • if so, whether the discrimination was direct (and thus incapable of justification) or indirect (and thus capable of justification); and
  • if the discrimination was indirect, whether it was justified having regard to the Government’s claimed objective of protecting public funds and deterring benefit tourism.

On issue (i), the Court of Appeal unanimously agreed with the first instance judgment of Swift J. that the CJEU’s judgment in Trojani v Centre Public d’Aide Sociale de Bruxelles [2004] 3 CMLR 38 remained good law and meant that the matter was within the scope of EU law.

On issue (ii), McCombe and Moylan LJJ considered the discrimination to be direct, which was dispositive of the case in favour of the Appellants and the AIRE Centre without the need to consider issue (iii). Dingemans LJ disagreed and found the discrimination to be indirect which, on issue (iii), he considered was justified.

Charles Banner Q.C. appeared pro bono on behalf of the AIRE Centre (instructed by Herbert Smith Freehills), whose submissions were extensively relied upon in the lead judgment of McCombe LJ.

The Judgment is available here

Counsel

Charles Banner QC

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