An update on the Fratila case, which in December 2020 saw the Court of Appeal hand down a very significant decision improving access to benefits such as Universal Credit for EU citizens with pre-settled status. A stay on that decision (i.e. it didn’t take legal effect) was in place until 26 February 2021 while the government considered an appeal. Permission for that appeal has now been granted by the Supreme Court and the stay extended until it is resolved.

Professor Charlotte O’Brien has a detailed update on the case over on the EU Rights and Brexit Hub, which is hard to improve upon. She notes that the Court of Justice of the European Union is also due to consider the same legal point, after a case was referred to it on 30 December 2020 by a tribunal in Northern Ireland. That could complicate things: the Supreme Court may, for example, want to wait for that decision before handing down its own. On the other hand, the EU case could represent a second bite at the cherry should the Supreme Court side with the government: “the CJEU’s ruling on a reference made by a UK court or tribunal (just) before the end of transition, will be binding on all UK courts”.

Prof O’Brien concludes: “we are unlikely to have a definitive answer for a while. However, it seems advisable to, where other rights to reside are not available, base [benefits] claims and/or appeals on pre-settled status; the Child Poverty Action Group give excellent further guidance here“.