R (Fratila and Tanase) v Secretary of State for Work and Pensions

The Court of Appeal has held that regulations which exclude persons whose sole right of residence in the UK is “pre-settled status” under the Immigration Rules from access to certain benefits are unlawfully discriminatory on grounds of nationality.

The appeal concerned whether amendments to social security rules introduced by the Social Security (Income-Related Benefits) (Updating and Amendment) (EU Exit) Regulations 2019 (“the 2019 Regulations”) were contrary to Article 18 of the Treaty on the Functioning of the European Union (“TFEU”), which prohibits discrimination on grounds of nationality within the scope of the EU Treaties. The effect of the amendments was to exclude persons whose sole right to reside in the UK is pre-settled status under the EU Settlement Scheme from access to various non-contributory benefits including universal credit.

There were three issues in the appeal:

1.     Were the Appellants entitled to rely on Article 18 TFEU in relation to social assistance in circumstances where their sole right to reside in the UK was derived from domestic law and not EU law?

2.     If so, did the impugned measure involve direct or indirect discrimination?

3.     If the measure was indirectly discriminatory, could it be justified?

The majority (McCombe and Moylan LJJ) allowed the Appellants’ appeal, finding that Case C-456/02 Trojani v. Centre Public d’Aide Sociale de Bruxelles and, more recently, the CJEU’s judgment of 6 October 2020 in C-181/19 Jobcenter Krefeld v JD, provided a complete answer to the first and second issues. The majority held that the EU jurisprudence established that (1) if an EU national is lawfully residing in another Member State on the basis of a domestic law right to reside, she is entitled to rely on Article 18 to claim equal treatment with nationals of that State in relation to social assistance; and (2) discrimination against an EU national who has a right to reside in the host State is prohibited and not capable of being justified.

Dingemans LJ delivered a dissenting judgment on the second and third issues. He concluded that the impugned measure was indirectly discriminatory and capable of being justified, essentially for the reasons given by the Judge below.

The judgment is available here.

Tom de la Mare QC and Gayatri Sarathy acted for the Appellants (instructed by Martin Williams and Claire Hall of Child Poverty Action Group).

Sir James Eadie QC and George Molyneaux acted for the Respondent (instructed by the Government Legal Department).