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This week, the Supreme Court has handed down judgment allowing the Secretary of State’s appeal in the above case. 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 basis of article 18 TFEU and 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) on the authority of Trojani found that the removal of benefits was directly discriminatory and was not, therefore, capable of justification. After permission to appeal was granted by the Supreme Court, the CJEU heard a materially similar claim following a preliminary reference made by a social security tribunal in Northern Ireland in the case of CG v Department of Communities in Northern Ireland. The CJEU delivered its judgment on 15 July 2021, finding that an EU citizen can claim equal treatment in respect of social assistance only if his or her residence in the territory of a member state complied with the conditions in Directive 2004/38. There was to be no independent application of article 18 TFEU. As a result of this finding, the Supreme Court overturned the Court of Appeal’s decision, finding that the issue of whether discrimination had occurred had been answered by the CJEU in favour of the Secretary of State. This is because the Respondents had not complied with the conditions in Directive 2004/38. The judgment can be found here. Julia Smyth appeared on behalf of the Appellant, the Secretary of State for Work and Pensions. Richard Drabble QC appeared on behalf of the Respondents. Yaaser Vanderman appeared on behalf of the AIRE Centre, the First Intervener.
