The Grand Chamber of the Court of Justice of the European Union (CJEU) will give judgment in CG v Department for Communities (C-709/20) on 15 July 2021

1 July 2021

Two big ‘right to reside’ decisions in one day from the European Court of Justice: when can states lawfully discriminate in the provision of welfare benefits?

The Grand Chamber of the Court of Justice of the European Union (CJEU) will give judgment in CG v Department for Communities (C-709/20) on 15 July 2021. It will address the question of whether it is lawful for the UK to automatically exclude EU citizens with pre-settled status (PSS) from entitlement to benefits and other social assistance.

CG is an EU national and a single mother of two very young children. She was granted PSS in 2020, having come to Northern Ireland several years earlier with her partner, then separated from him as a result of domestic violence. For these reasons, and her recent pregnancies, she has not worked in the UK. CG and her children are facing destitution and extreme financial hardship.

CG was refused Universal Credit (UC) because the UC Regulations exclude from eligibility anyone whose right to live in the UK is based solely on the grant of PSS. CG says this is unlawful under EU laws prohibiting discrimination based on nationality.

In his opinion on the case, published last week, the CJEU’s Advocate General has said the CJEU should hold that the denial of social assistance to someone like CG solely because of the nature of his or her right of residence constitutes indirect discrimination on the ground of nationality, and “goes beyond what is necessary to maintain the equilibrium of the social assistance system”, if the refusal of assistance has a greater effect on, or affects a greater number of, nationals of other Member States than those of the host state (para 111).

Whether the CJEU will agree with its Advocate General will be seen on 15 July.  AG opinions are not binding on the court, so the CJEU can reach a different decision, and it is the decision of the full court which must be followed by domestic courts when they apply EU law. It is important to note in the context of the UK’s withdrawal from the EU that CG’s claim for UC was made before the end of the transitional period: according to the UK-EU Withdrawal Agreement (Article 86) and the EU Withdrawal Agreement Act 2020, the CJEU has jurisdiction and its decision should bind UK courts, though there may be future argument about what if any effect the decision will have on post-2020 benefit claims.

This is particularly important because, hot on the heels of CG v Department for Communities will be a UK Supreme Court decision in the case of Fratila v Secretary of State for Work and Pensions, addressing essentially the same issue of whether EU nationals with PSS in the UK should be entitled to access benefits. The Court of Appeal held in December that the exclusion in the UC Regulations was unlawfully discriminatory against EU nationals (paras 60 and 90). The Government appealed. The Supreme Court was due to hear the appeal in May but adjourned it to await the outcome of CG. The order of the Court of Appeal quashing the relevant parts of the regulations is currently stayed. The Supreme Court has said it will review the stay once CG is decided.

CG is not the only case currently under consideration by the CJEU raising potentially important right to reside issues. Also being handed down on 15 July, the same day as CG, is judgment in A v Latvijas Republikas Veselības ministrija (C-535/19).

A concerns whether an economically inactive EU citizen with a right of legal residence in member state (under Art 7(1)(b) of Directive 2004/38) has the right to be affiliated to that state’s social security system and to receive health care benefits provided by the state. The issues raised are potentially even wider in scope than CG v Department for Communities.

In the opinion of Advocate General Saugmandsgaard Øe, EU law must be interpreted as precluding national legislation which automatically refuses access to social security by an EU citizen who has the right to reside and is genuinely integrated and settled in the member state in which he or she lives. This should be the case whether or not an EU citizen is economically active. The AG stresses the significance of EU citizenship, which he says ‘has become the fundamental status of nationals of the Member States’ (para 150). In C-184/99 Grzelczyk, the CJEU famously said EU citizenship was ‘destined’ to acquire that fundamental status: A appears to be the first case in which that destiny is said to have been fulfilled.

Lily Lewis, who wrote this note, is assisting Tom Royston in both Fratila and CG. Tom is junior counsel for the claimants in both cases, instructed by CPAG and Law Centre NI.

 

 

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