Court of Appeal challenge to EU Pre-Settled Status regime – R (Fratila & Tanase) v SSWP

The Court of Appeal is this week hearing an appeal from two EU citizens who have 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 removes the ability of those with pre-settled status to claim social assistance payments in the form of Universal Credit.

The Claimants’ argument is that it is 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. The Claimants were granted permission to appeal and the Secretary of State cross-appealed on the Trojani issue.

The hearing is listed for two days.

Yaaser Vanderman is appearing on behalf of the AIRE Centre, instructed by Andrew Lidbetter and Jasveer Randhawa at Herbert Smith Freehills.

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