Court of Appeal allows appeal against EU Pre-Settled Status regime – R (Fratila & Tanase) v SSWP

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The Court of Appeal has today allowed an appeal from two EU citizens who had been granted pre-settled status under Appendix EU to the Immigration Rules. In preparation for Brexit, and in order to reassure EU citizens in the UK, the Government created new domestic rights by Appendix EU to the Immigration Rules. These came into force on 28 August 2018. Settled status was to be granted to those who had completed five continuous years of lawful presence in the UK, resulting in indefinite leave to remain. Pre-settled status was to be granted to those who had not yet completed five years of lawful presence in the UK, resulting in leave to remain limited to five years. Both settled status and pre-settled status conferred an otherwise unlimited right to reside in the UK. Subsequently, on 7 May 2019, the Social Security (Income-Related Benefits) (Updating and Amendment) (EU Exit) Regulations 2019 came into force. This effectively removed the ability of those with pre-settled status to claim social assistance payments in the form of Universal Credit. The Claimants’ argued that it was unlawfully discriminatory, on the authority of Trojani v Centre Public d’Aide Sociale de Bruxelles [2004] 3 CMLR 38, to remove eligibility for social assistance from those with a domestic right of residence on the basis of their nationality. Before the High Court, Swift J accepted the argument that Trojani applied but dismissed the claim on the basis that the indirect discrimination was justified. Overturning the High Court’s decision, the Court of Appeal (by a majority of two to one) have found that the removal of benefits was directly discriminatory and was not, therefore, capable of justification. Yaaser Vanderman appeared on behalf of the AIRE Centre, instructed by Andrew Lidbetter and Jasveer Randhawa at Herbert Smith Freehills.

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