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Universal Credit claimants with pre-settled status

10th January, 2022

Fratila v. Secretary of State for Work and Pensions [2021] UKSC 53 and CG v. Department for Communities (C-709/20)

Two recent court decisions provide guidance on the eligibility of claimants with pre-settled status to apply for Universal Credit (UC). This note explains the decisions and their consequences for UC claimants.

Eligibility for UC of EU citizens with pre-settled status

One of the basic qualifying conditions for UC is that the claimant is ‘in Northern Ireland’.

Regulation 9 Universal Credit (Northern Ireland) Regulations 2016 sets out what is meant by being ‘in Northern Ireland’. There are several ways in which an EU citizen might satisfy Regulation 9. A few such ways are that they have settled status under the EU Settlement Scheme, they are a worker or a self-employed person or they are a family member of a worker or self-employed person.

According to Regulation 9(3)(d)(i), however, if an EU citizen’s only right to reside in Northern Ireland is that they have been granted pre-settled status under the EU Settlement Scheme, they will not satisfy Regulation 9 and are not eligible for UC.

Fratila and another v. Secretary of State for Work and Pensions [2020] EWCA Civ 1741

Fratila challenged the ineligibility of EU citizens to UC if their right to reside in the UK is based on pre-settled status alone.

The case concerns the GB equivalent of the UC (NI) Regulations 2016: the UC Regulations 2013. The claimants in Fratila were EU citizens with pre-settled status who had no other right to reside in the UK. Their claims for UC were refused by the Department for Work and Pensions on the basis of Regulation 9.

The claimants challenged the Department’s decision by way of judicial review. Their case went to the Court of Appeal, which found in their favour. The Court of Appeal decided that the claimants’ ineligibility for UC discriminated against them on the basis of their nationality and was contrary to EU law.

This was not the end of the matter, however, as the UK Government sought leave to appeal to the Supreme Court (see below). 

CG v. Department for Communities (C-709/20)

In the meantime, a case with similar facts to Fratila arose in Northern Ireland: CG v. Department for Communities. CG was also an EU citizen whose only right to reside in Northern Ireland was her pre-settled status. She was also refused UC and, with the assistance of Law Centre NI, appealed to the Appeal Tribunal.

Realising that CG’s case raised a point of EU law, the Appeal Tribunal made a preliminary reference to the Court of Justice of the European Union (CJEU). The Appeal Tribunal asked whether the UC (NI) Regulations 2016, in excluding CG from eligibility to UC, were discriminatory and in breach of EU law.

The Supreme Court decided to stay its decision in Fratila, pending the outcome of the CJEU’s decision in CG.

The CJEU gave judgment in July 2021. It decided that an EU citizen can only claim equal treatment in relation to access to social assistance, such as UC, if their residence in a Member State complies with the conditions of Directive 2004/38/EC (the Citizens’ Rights Directive). One of the conditions of the Directive is that economically inactive citizens have sufficient resources for themselves and their family. The CJEU decided that EU law did not, therefore, prevent the UK from refusing UC to claimants who were economically inactive, not self-sufficient and whose only right of residence was based on their pre-settled status.

The CJEU did say, however, that before denying such claimants, a Member State must make sure that their rights under the Charter of Fundamental Rights of the European Union (‘the Charter’) are protected and that they are able to live in dignified conditions. The Court made particular reference to Article 1 (human dignity),[1] Article 7 (respect for private and family life)[2] and Article 24 (rights of the child)[3] of the Charter.

The Court acknowledged that in assessing whether a claimant can live in dignified conditions, a Member State is entitled to take into account other forms of support it gives to the claimant. 

The Supreme Court’s decision in Fratila

The Supreme Court finally gave its decision in Fratila and another v. Secretary of State for Work and Pensions [2021] UKSC 53 on 1 December 2021.

The Supreme Court decided, in keeping with the CJEU’s decision in CG, that an EU citizen can only claim equal treatment in respect of social assistance such as UC, if their residence complies with the Citizens’ Rights Directive. As the Fratila claimants’ right to reside did not comply with the Directive, the UK’s decision to refuse their claims to UC was not a breach of EU law.

The Supreme Court acknowledged that the claimants, drawing on the CJEU’s decision in CG, had tried to raise arguments about the Charter of Fundamental Rights. However, it decided that as an appellate court, it would be inappropriate for it to consider new arguments which raised previously undetermined questions of fact.

Lord Lloyd-Jones, delivering the judgment of the Court, stated that the claimants in Fratila were in a ‘materially different’ situation to CG. He suggested that it was the particular financial circumstances of CG which prompted the CJEU to draw attention to the relevance of the Charter in her case.

What does the case law mean for UC claimants with pre-settled status?

In Fratila, the Supreme Court applied the CJEU’s decision in CG, as it was bound to do. It is therefore to CG that we look for guidance and in particular the relevance of the Charter.

CG’s case will return to the Appeal Tribunal in the coming months On the basis of the CJEU’s decision, Law Centre NI will argue that before refusing a claim for UC on the basis of Regulation 9(3)(d)(i), the decision maker must make sure that the claimant would otherwise be able to live in dignified conditions and that their rights under the Charter are upheld.

In making this assessment, the decision maker can take into account other sources of state support to the claimant. This includes the duty under Article 18 Children’s (NI) Order 1995 to provide assistance to children in need and their families.

Arguably, if in spite of alternative state support, the claimant is unable to live in dignified conditions without UC, they should be awarded the benefit.

Cases with similar facts to CG which are currently subject to appeal:

Any appeals involving claimants in a similar position to CG have been stayed pending the outcome Fratila. Law Centre NI understands that the Department will soon issue updated guidance on such cases. Law Centre NI will provide further guidance to Social Security Advisers once Departmental guidance has been published.

Claimants in CG’s position whose claim has been refused by the Department:

Claims for UC by claimants in CG’s position should have been stayed pending the outcome in Fratila.

However, if you have a client in CG’s position who has been refused UC, we advise you to assist them in submitting a request for mandatory reconsideration and appeal. In your notice of appeal, you can make the following arguments:

  • · In CG v. Department for Communities (C-709/20), the Court of Justice of the European Union decided that before refusing a claimant UC on the basis that their only right to reside is pre-settled status, the decision maker must ensure that:
    • The claimant will still be able to live in dignified conditions without UC and
    • Their rights under the Charter of Fundamental Rights of the EU are upheld.
  • The Department has not adequately assessed those factors in my client’s case.
  • Refusal of UC in my client’s case will result in them being unable to live in dignified conditions and fails to have regard to their Charter rights.

Arguably, there is a distinction between cases such as CG’s, that arose before the Brexit transition period ended, and cases arising after 31 December 2020. However, it is Law Centre NI’s position that the Charter continues to apply in Northern Ireland to this day, and that Departmental decision makers should continue to have regard to the Charter before refusing claims for UC. Law Centre NI will provide guidance to Social Security Advisers on this and arguments to make at an appeal hearing, once the outcome of CG’s appeal is known.

EU citizens with pre-settled status considering applying for UC:

If your client has not yet applied for UC, you should consider whether they can rely on another right to reside other than their pre-settled status. This may be that they are a worker, self-employed person, a family member of a worker or self-employed person, a frontier worker or a refugee. If you are unsure if they have an alternative right to reside, contact our Social Security legal team on 028 90244401 or benefitsadvice@lawcentreni.org

If an alternative right to reside is not available to your client, they can still apply for UC. Their case is likely to be stayed, pending updated guidance from the Department following Fratila. If and when the Department refuses their claim, your client can seek a mandatory reconsideration and appeal.

Your client may be entitled to an alternative benefit, so it is worthwhile undertaking a benefit check to see what other forms of support they can access.

The impact of Fratila and CG will be addressed at Law Centre NI’s Adviser Network meeting on 14 January 2021. You can register for the meeting by following this link: Social Security Adviser Network Meeting Tickets, Fri 14 Jan 2022 at 11:00 | Eventbrite

Contact our Social Security legal team on 028 90244401 or benefitsadvice@lawcentreni.org for further advice and assistance on the issues covered in this note.

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[1] Article 1: Human dignity ‘Human dignity is inviolable. It must be respected and protected’.

[2] Article 7: Respect for private and family life ‘Everyone has the right to respect for his or her private and family life, home and communications’.

[3] Article 24: The rights of the child ‘(1) Children shall have the right to such protection and care as is necessary for their well-being. They may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity. (2) In all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration. (3) Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests.’