CJEU Grand Chamber hands down judgment in landmark case about EU Settlement Scheme and benefit entitlement

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On Friday 16 July, the Grand Chamber of the CJEU handed down judgment in Case C-709/20 CG v Department of Communities in Northern Ireland. The case was heard on 4 May 2021 under the expedited procedure, and the Advocate-General’s opinion was given on 24 June 2021. CG is a dual Croatian and Netherlands national, who has lived in the UK since 2018 but without carrying out any economic activity. She was granted limited leave to remain under the UK’s EU Settlement Scheme in June 2020. CG then made a claim for Universal Credit, which was refused, because she did not enjoy a qualifying right to reside for those purposes. CG claimed that this refusal was unlawfully discriminatory on grounds of nationality under Article 18 of the Treaty on the Functioning of the European Union (“TFEU”). The Grand Chamber rejected that argument, deciding that whether CG faced discrimination on grounds of nationality had to be assessed in the light of Article 24 of Directive 2004/38/EC, and not Article 18 TFEU, because Article 24 gave specific expression to the principle of non-discrimination on nationality grounds in relation to Union citizens who had exercised their right of free movement. Since CG was not residing in accordance with the Directive, she could not rely on the anti-discrimination provision in Article 24 to claim entitlement to Universal Credit. However, as CG was a mother of two young children, who had escaped domestic violence, the Court held that Universal Credit could only be refused after ascertaining that the refusal did not breach Articles 1 (human dignity), 7 (private and family life) and 24 (rights of the child) of the EU Charter of Fundamental Rights. When determining that question, national authorities could take into account all means of assistance available under national law (i.e. apart from Universal Credit). Richard Drabble QC, leading Tom Royston, acted for CG. David Blundell QC and Julia Smyth acted for the United Kingdom Government.

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