Court of Appeal today: Government acted unlawfully in barring EU citizens from relying on ‘pre-settled status’ to access benefits, housing

18 December 2020

Last year the UK government made emergency regulations, blocking EU citizens who had been granted a right to remain in the UK from relying on their ‘pre-settled status’ to claim access to benefits, homelessness assistance, social housing and other welfare: see eg the Social Security (Income-related Benefits) (Updating and Amendment) (EU Exit) Regulations 2019.

There are currently at least 1,825,500 people in the UK with pre-settled status. Many people in that group will not need to apply for social welfare, and some others will be eligible because of a different right of residence. But the result of the 2019 Regulations was that huge numbers of EU nationals, particularly those who lost jobs due to COVID, have been excluded from access to emergency support, even though they have an absolute legal right to reside here.

In Fratila, the Court of Appeal decides today that the government acted unlawfully. It quashes relevant parts of the 2019 regulations. Its reasoning is that once the UK gives EU citizens the legal right to reside in the UK, it is discriminatory on nationality grounds to exclude them from the rights enjoyed by other people legally resident here.

The Court of Appeal has refused the government permission to appeal to the Supreme Court. It is not yet known whether the government intends to renew its application directly to the Supreme Court. The effect of today’s decision has been temporarily stayed while that is considered.

Meanwhile, anyone refused benefits, housing support or similar assistance on the ground that their only right of residence in the UK was pre-settled status should seek legal advice immediately (eg from a citizens advice bureau) on whether they should now challenge the decision. And anyone who has not claimed because they thought their pre-settled status would not make them eligible should seek advice on whether they should now make a claim.

Tom Royston acted for the appellants along with Tom de la Mare QC and Gayatri Sarathy, instructed by the Child Poverty Action Group.

There is further information about the case on CPAG’s website.

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