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Supreme Court overturns expansion of benefits rights for EU citizens


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The Supreme Court has overturned last year’s ruling that EU citizens with pre-settled status should be able to claim Universal Credit without having to jump through hoops. The case is Fratila and another v Secretary of State for Work and Pensions [2021] UKSC 53.

Pre-settled status allows EU citizens living in the UK before Brexit took effect to stay here legally. It lasts for five years, after which people can upgrade to full settled status. The conditions for getting pre-settled status were not particularly onerous: residence, even for a short period, was the main thing.

But when it comes to claiming benefits, the government brought in regulations saying that pre-settled status was not enough to satisfy the residence condition for the likes of Universal Credit. People with pre-settled status can still claim Universal Credit, but have to prove that they have a stronger “right to reside” than pre-settled status alone — such as being a “worker” under EU law.

Ms Fratila and Mr Tanase, both Romanian citizens living in the UK, challenged these regulations and eventually won a pretty bombshell ruling in their favour in the Court of Appeal. The UK government took the case to the Supreme Court. In the meantime, in July 2021, the Court of Justice of the European Union handed down a decision in a similar case that cut the rug from under their challenge. Essentially, Fratila relied on Article 18 of the Treaty on the Functioning of the European Union, and the Court of Justice held that Article 18 did not apply to people with pre-settled status.

“As a result”, the Supreme Court held today, “the first issue in this appeal has been answered by the CJEU definitively in favour of the appellant [the DWP] and the second issue does not arise”. And that’s all she wrote, pretty much. The judgment is only a few pages long. There was a last-ditch attempt to raise different legal arguments, instead of Article 18, but the Supreme Court held it would “clearly be inappropriate” to allow that.

Keen Fratila-watcher Charlotte O’Brien had anticipated this outcome in a memo written in September, and has some thoughts on other avenues of legal challenge where EU citizens in this position are facing barriers to claiming benefits. For the time being, though, the regulations stating that they have to establish a right to reside, even if they already have pre-settled status, are back.

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CJ McKinney

CJ McKinney is a specialist on immigration law and policy. Formerly the editor of Free Movement, you will find a lot of articles by CJ here on this website! Twitter: @mckinneytweets.