Brexit, Benefits, and the Supreme Court
- By James Ferguson
The Supreme Court (UKSC) in London was to consider the lawfulness of regulations excluding EU citizens from Universal Credit during the transition period when the European Court of Justice (CJEU) beat them to it.
The UKSC recently revisited the matter.
The Respondents, Ms Fratila and Mr Tanase, are Romanian nationals living in the UK with pre-settled status under the EU Settlement Scheme.
They both applied for Universal Credit in 2019.
These applications were refused by the Secretary of State for Work and Pensions (Appellant) because the Universal Credit Regulations do not permit Universal Credit to be granted solely because of an applicant’s pre-settled status.
The Respondents challenged this decision by judicial review, contending that a 2019 amendment to the regulations were discriminatory on the grounds of nationality, contrary to the Treaty on the Functioning of the European Union (Article 18), and should be quashed.
The High Court found for the Appellant. The Court of Appeal, for the Respondents. The Secretary of State appealed to the Supreme Court (UKSC).
The hearing of the case was delayed by the UKSC pending judgment in CG v The Department for Communities in Northern Ireland (CG) before in the European Court of Justice (CJEU), which was delivered in July 2021.
This appeal is concerned solely with EU law as it applied in the United Kingdom while …a Member State and during the transition period following [its] withdrawal …from the European Union
The CJEU held in CG that Article 18 had no application to the Universal Credit Regulations (Northern Ireland) 2016, which are “materially similar” to the Universal Credit Regulations in question. This is binding because it concerns the application of EU law during the transition period following the UK’s withdrawal from the EU.
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 appeal was allowed.