Fratila and another vs. Secretary of State for Work and Pensions (Appellant) - (01 Dec 2021)

EU citizen can claim equal treatment in respect of social assistance only if his or her residence in the territory of that member state complies with the conditions of the Directive

Civil

The appeal concerns the compatibility with EU law of statutory provisions governing eligibility for various non-contributory benefits which were inserted into existing Regulations by the Social Security (Income-related Benefits) (Updating and Amendment) (EU Exit) Regulations 2019 (“the 2019 Regulations”). In broad terms, the 2019 Regulations prevent leave to remain in the United Kingdom arising from pre-settled status granted under the EU Settlement Scheme (“EUSS”) from constituting a qualifying right of residence for the purposes of eligibility for the relevant benefits.

The Respondents are Romanian nationals residing in the UK. They both made applications for universal credit in June 2019. At the time of their applications, the Respondents’ right to reside in the UK arose solely from their pre-settled status under the EU Settlement Scheme. The Respondents’ applications were refused because the Universal Credit Regulations 2013, as amended by the 2019 Regulations do not permit universal credit to be granted solely on the basis of an individual’s pre–settled status.

The Respondents challenged the refusals of their applications for universal credit by way of judicial review. They argued that, the 2019 Regulations should be quashed as contrary to the prohibition on discrimination on the grounds of nationality in Article 18 of the Treaty on the Functioning of the European Union ("Article 18 TFEU"). In the High Court, the Respondents’ claim was dismissed. However, the Court of Appeal allowed the Respondents’ appeal. The Secretary of State for Work and Pensions now appeals to the Supreme Court.

On 21 December 2020, a Social Security Tribunal in Northern Ireland had made a preliminary reference to the CJEU in a case, CG vs. Department for Communities in Northern Ireland, which concerned the compatibility with Article 18 TFEU of the Universal Credit Regulations (Northern Ireland) 2016, as amended by the Social Security (Income-related Benefits) (Updating and Amendment) (EU Exit) Regulations (Northern Ireland) 2019, which are materially similar to the Universal Credit Regulations 2013, as amended by the 2019 Regulations, with which present appeal is concerned.

The CJEU delivered its judgment in CG on 15 July 2021. It observed that every EU citizen may rely on the prohibition of discrimination on grounds of nationality laid down in article 18 TFEU. An EU citizen who moves to or resides in a member state other than that of which he or she is a national falls within the scope of the Directive and is a beneficiary of the rights conferred by it. Accordingly, the question whether that EU national faces discrimination on grounds of nationality falls to be assessed by reference to article 24 of the Directive and not by the independent application of article 18 TFEU. The CJEU concluded that, an EU citizen can claim equal treatment in respect of social assistance only if his or her residence in the territory of that member state complies with the conditions of the Directive.

Furthermore, it is common ground between the appellant and the respondents that the respondents did not reside in the United Kingdom in accordance with the Directive at the time of their claims for universal credit. They cannot therefore rely on the EU principle of non-discrimination to claim a right to equal treatment in respect of entitlement to universal credit.

The Respondents now seek to advance an entirely new case which has never previously been raised in these proceedings. The Respondents have never previously sought to argue that the Charter confers on them an entitlement to universal credit. While an appellate court will always be cautious before permitting a new point to be raised for the first time on appeal, it would clearly be inappropriate to do so where, as in the present proceedings, the new case would raise issues of fact which have not been determined. Appeal allowed.

Tags : EU LAW STATUTORY PROVISIONS BENEFITS