Geanina Mirela Fratila v Secretary of State for Work and Pensions
| Jurisdiction | England & Wales |
| Judge | Mr Justice Swift |
| Judgment Date | 27 April 2020 |
| Neutral Citation | [2020] EWHC 998 (Admin) |
| Docket Number | Case No: CO/3632/2019 |
| Date | 27 April 2020 |
| Court | Queen's Bench Division (Administrative Court) |
[2020] EWHC 998 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr. Justice Swift
Case No: CO/3632/2019
The Queen on the application of
and
Thomas de la Mare QC and Tom Royston (instructed by Child Poverty Action Group) for the Claimant
Sir James Eadie QC, Julie Anderson and George Molyneaux (instructed by Government Legal Department) for the Defendant
Charles Banner QC and Yaaser Vanderman (instructed by Herbert Smith Freehills LLP) for the Intervener
Hearing dates: 18 th and 19 th February 2020
Judgment approved by the court
A. Introduction
This claim concerns the legality of social security rules made to govern whether persons holding pre-settled status under the Immigration Rules may qualify to claim various social welfare benefits. Pre-settled status is one of two statuses permitting residence in the United Kingdom, established by the Home Secretary under the Immigration Rules. Each is intended to protect the position of foreign EU nationals living in the United Kingdom, following the United Kingdom's departure from the European Union. The relevant social security rules were introduced by the Social Security (Income-related Benefits) (Updating and Amendment) (EU exit) Regulations 2019 (“the 2019 Social Security Regulations”), which were laid by the Secretary of State for Work and Pensions. These Regulations have the effect of preventing reliance on pre-settled status to meet the residence tests which are a condition of entitlement to a range of social welfare benefits. In some, but not all of the welfare benefit schemes that test is put in terms of whether the claimant is “in Great Britain”. The 2019 Social Security Regulations amend a number of different sets of rules: the Income Support (General) Regulations 1987; the Jobseeker's Allowance Regulations 1996; the State Pension Credit Regulations 2002; the Housing Benefit Regulations 2006; the Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations 2006; the Employment and Support Allowance Regulations 2008; and the Universal Credit Regulations 2013. The case raised by the Claimants is that the change introduced by the 2019 Social Security Regulations which prevents reliance on pre-settled status, comprises unlawful discrimination on grounds of nationality, contrary to EU law.
(1) The 2019 Social Security Regulations, and Universal Credit
Although the 2019 Social Security Regulations amend each of the seven sets of Regulations listed above, the argument in this case has focussed on the amendment to regulation 9 of the Universal Credit Regulations 2013 (“the Universal Credit Regulations”). As amended, regulation 9 is as follows.
“ 9. — Persons treated as not being in Great Britain
(1) For the purposes of determining whether a person meets the basic condition to be in Great Britain, except where a person falls within paragraph (4), a person is to be treated as not being in Great Britain if the person is not habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland.
(2) A person must not be treated as habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland unless the person has a right to reside in one of those places.
(3) For the purposes of paragraph (2), a right to reside does not include a right which exists by virtue of, or in accordance with—
(a) regulation 13 of the EEA Regulations or Article 6 of Council Directive No. 2004/38/EC;
(aa) regulation 14 of the EEA Regulations, but only in cases where the right exists under that regulation because the person is–
(i) a qualified person for the purposes of regulation 6(1) of those Regulations as a jobseeker; or
(ii) a family member (within the meaning of regulation 7 of those Regulations) of such a jobseeker;
(b) regulation 16 of the EEA Regulations, but only in cases where the right exists under that regulation because the person satisfies the criteria in regulation 16(5) of those Regulations or article 20 of the Treaty on the Functioning of the European Union (in a case where the right to reside arises because a British citizen would otherwise be deprived of the genuine enjoyment of their rights as a European citizen); or
(c) a person having been granted limited leave to enter, or remain in, the United Kingdom under the Immigration Act 1971 by virtue of—
(i) Appendix EU to the immigration rules made under section 3(2) of that Act; or
(ii) being a person with a Zambrano right to reside as defined in Annex 1 of Appendix EU to the immigration rules made under section 3(2) of that Act.
(4) A person falls within this paragraph if the person is—
(a) a qualified person for the purposes of regulation 6 of the EEA Regulations as a worker or a self-employed person;
(b) a family member of a person referred to in sub-paragraph (a) within the meaning of regulation 7(1)(a), (b), or (c) of the EEA Regulations;
(c) a person who has a right to reside permanently in the United Kingdom by virtue of regulation 15(1)(c), (d) or (e) of the EEA Regulations;
(d) a refugee within the definition in Article 1 of the Convention relating to the Status of Refugees done at Geneva on 28th July 1951, as extended by Article 1(2) of the Protocol relating to the Status of Refugees done at New York on 31st January 1967;
(e) a person who has been granted, or who is deemed to have been granted, leave outside the rules made under section 3(2) of the Immigration Act 1971 where that leave is—
(i) discretionary leave to enter or remain in the United Kingdom,
(ii) leave to remain under the Destitution Domestic Violence concession, or
(iii) leave deemed to have been granted by virtue of regulation 3 of the Displaced Persons (Temporary Protection) Regulations 2005;
(f) a person who has humanitarian protection granted under those rules; or
(g) a person who is not a person subject to immigration control within the meaning of section 115(9) of the Immigration and Asylum Act 1999 and who is in the United Kingdom as a result of their deportation, expulsion or other removal by compulsion of law from another country to the United Kingdom.”
[emphasis added]
The material amendment for the purposes of the Claimants' case is the new regulation 9(3)(c)(i), added by the 2019 Social Security Regulations, and underlined above.
The significance of this amendment is as follows. By section 3 of the Welfare Reform Act 2012 (“the 2012 Act”), claimants are entitled to Universal Credit if they meet both the “basic conditions” and the relevant “financial conditions”. Section 4(1) of the 2012 Act lists the “basic conditions”; the list includes a condition that the claimant must be “in Great Britain”. Section 4(5) of the 2012 Act provides that regulations may be made in order (among other matters) to “… specify circumstances in which a person is to be treated as being or not being in Great Britain”. Regulation 9 of the Universal Credit Regulations is that provision. By reason of regulation 9 (as now amended), a person will not meet the conditions for entitlement to Universal Credit unless she is actually present in the United Kingdom. However, unless the person falls into any of the categories listed in regulation 9(4), she will not be able to meet the conditions for entitlement to Universal Credit unless she is habitually resident in (any of) the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland (regulation 9(1)). A condition of establishing habitual residence is that the person must have the right to reside in (at least) one of the listed parts of the British Isles, or the Republic of Ireland (regulation 9(2)). Regulation 9(3) then provides that rights to reside under specified provisions do not count for the purposes of regulation 9(2), and that one such is the limited leave to enter or remain in the United Kingdom arising under Appendix EU to the Immigration Rules (regulation 9(3)(c)(i)).
Adding a little more detail, it is important to note two matters. The first is that the classes of person who, by reason of regulation 9(4), are able to meet the condition to be “in Great Britain” without needing to show habitual residence in the United Kingdom, include those who by reason of being workers or self-employed persons are “qualified persons” for the purposes of the Immigration (European Economic Area) Regulations 2016 (“the EEA Regulations”), the family members of those persons (as defined by regulation 7 of the EEA Regulations), and retired workers and self-employed persons and their family members. The second is that prior to the amendments made to regulation 9 of the Universal Credit Regulations by the 2019 Social Security Regulations, the types of rights of residence that did not count for the purposes of establishing habitual residence included the initial 3 month right of residence available to EU nationals under regulation 13 of the EEA Regulations and also, if the person was a jobseeker or family member of a jobseeker as defined in the EEA Regulations, the extended right of residence under regulation 14 of the EEA Regulations (i.e. the right of residence available to EU nationals who did not meet the conditions for the permanent right of residence under regulation 15 of the EEA Regulations, which is available to, among...
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