Fratila v Secretary of State for Works and Pensions
| Jurisdiction | England & Wales |
| Judge | Lord Hamblen,Lord Reed,Lord Hodge,Lord Lloyd-Jones,Lord Sales |
| Judgment Date | 01 December 2021 |
| Neutral Citation | [2021] UKSC 53 |
| Court | Supreme Court |
[2021] UKSC 53
Lord Reed, President
Lord Hodge, Deputy President
Lord Lloyd-Jones
Lord Sales
Lord Hamblen
Appellant
Sir James Eadie QC
Tim Ward QC
Julia Smyth
George Molyneaux
(Instructed by The Government Legal Department)
Respondents
Richard Drabble QC
Thomas de la Mare QC
Tom Royston
Gayatri Sarathy
(Instructed by Child Poverty Action Group)
1st Intervener (The AIRE Centre)
Charles Banner QC
Yaaser Vanderman
(Instructed by Herbert Smith Freehills LLP (London))
2nd Intervener (Independent Monitoring Authority for the Citizens' Rights Agreements)
Marie Demetriou QC
Emma Mockford
(Instructed by Independent Monitoring Authority Legal Department)
( with whom Lord Reed, Lord Hodge, Lord Sales and Lord Hamblen agree)
This appeal is concerned solely with EU law as it applied in the United Kingdom while the United Kingdom was a Member State and during the transition period following the withdrawal of the United Kingdom from the European Union.
The appeal concerns the compatibility with EU law of statutory provisions governing eligibility for various non-contributory benefits which were inserted into existing Regulations by the Social Security (Income-related Benefits) (Updating and Amendment) (EU Exit) Regulations 2019 (“the 2019 Regulations”). In broad terms, the 2019 Regulations prevent leave to remain in the United Kingdom arising from pre-settled status granted under the EU Settlement Scheme (“EUSS”) from constituting a qualifying right of residence for the purposes of eligibility for the relevant benefits. The case has been argued by reference to the amendment which the 2019 Regulations made to the Universal Credit Regulations 2013, which govern eligibility for universal credit. The 2019 Regulations also made analogous amendments to six other sets of Regulations, which relate to other benefits.
The appellant, the Secretary of State for Work and Pensions, submits that article 18 TFEU, which prohibits, within the scope of application of the EU Treaties, any discrimination on grounds of nationality, is inapplicable and that in any event there is no breach of the provision. The appellant's case, in broad summary, is that a person with no EU law right of residence in the United Kingdom is not entitled to rely on article 18 TFEU to claim equal treatment in respect of the relevant benefits and, in any event, that any nationality discrimination to which the 2019 Regulations give rise is indirect and justified.
The respondents are both Romanian nationals who are present in the United Kingdom and who made applications for Universal Credit which were refused. At the time of the relevant applications the respective right of each of them to reside in the United Kingdom arose solely from their pre-settled status. They submit that once an EU citizen is lawfully resident in a member state, whether by virtue of an EU law right of residence or, as in the present case, a purely domestic law right of residence, they are within the scope of article 18 TFEU and any refusal of social assistance to them by reference to an eligibility criterion not applied to a UK national is discrimination prohibited by article 18 TFEU.
The respondents challenged by way of judicial review the refusals of their applications for universal credit, contending that the 2019 Regulations should be quashed as contrary to the prohibition on nationality discrimination in article 18 TFEU. On 27 April 2020 Swift J dismissed the claim ( [2020] EWHC 998 (Admin); [2020] PTSR 1424). He held that the respondents were entitled to rely on article 18 to assert a claim of discrimination on the grounds of EU nationality, but he further held that the 2019 Regulations did not breach article 18 because:
(i) they gave rise only to indirect, not direct, discrimination (applying the decision of the Supreme Court in Patmalniece v Secretary of State for Work and Pensions (AIRE Centre intervening) [2011] UKSC 11; [2011] 1 WLR 783, itself applying the decision of the Court of Justice of the European Union (“CJEU”) in Bressol v Gouvernement de la Communauté française (Case C-73/08) [2010] ECR I-2735; [2010] 3 CMLR 20, paras 24–29; and
(ii) the indirect discrimination in question was justified, since the 2019 Regulations served to maintain the status quo prior to the introduction of pre-settled status and protected the social security system from claims by persons who were not sufficiently economically integrated into, or insufficiently closely connected with the United Kingdom (at paras 31–32).
On appeal, the Court of Appeal ( [2020] EWCA Civ 1741; [2021] PTSR 764) (McCombe, Moylan and Dingemans LJJ) allowed the appeal (Dingemans LJ dissenting). The Court of Appeal concluded, unanimously, that the respondents were entitled to rely on article 18 TFEU for the reasons given by Swift J. McCombe LJ, with whom Moylan LJ concurred, concluded that on the...
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