EU nationals with 'pre-settled status' have been given new hope of being eligible for UK state support if they fall on hard times, following a favourable opinion from Luxembourg last week.
A formal ruling by the Court of Justice of the European Union (CJEU) will be delivered on 15 July 2021.
The Advocate General's opinion, published on 24 June 2021, concludes that the UK government's policy of denying some EU citizens with pre-settled status access to the welfare safety net arguably discriminates on grounds of nationality and cannot be justified because it does not take into account an individual’s circumstances.
If the CJEU agrees, the onus will be on the UK government to provide legal justification for the discrimination or adopt a policy which allows for individual circumstances to be taken into account. This would include the individual’s level of poverty, their right to respect for family life and the best interests of their children.
The CJEU was asked to rule following an appeal to the Northern Ireland Social Security Tribunal by Law Centre NI, on behalf of a destitute mother of two small children who was refused Universal Credit.
The mother represented by Law Centre NI is an EU national and has been living in the UK since 2019, which is where both her children were born. She was granted pre-settled status in June 2020 and has been unable to claim Universal Credit which would help with childcare costs. She is a victim of domestic violence and is known in the case only as 'CG'.
In June 2020, CG's application for Universal Credit was rejected by the Department for Communities (DfC) - Northern Ireland's equivalent of the Department for Work and Pensions. DfC argues CG is not entitled to UC because the Universal Credit (Northern Ireland) Regulations 2016 (Regulation 9) exclude from eligibility anyone whose right to live in the UK is based solely on the grant of pre-settled status. (EU citizens with pre-settled status who have additional rights to reside in the UK - such as also being a worker - can already meet the criteria for benefit eligibility.)
When CG challenged DfC's decision, the appeals tribunal concluded her case raises a point of European law, and referred the issue to CJEU for clarification*. In February 2021, the President of the NI Appeals Tribunal described CG as 'destitute and in dire financial straits'.
Solicitor at Law Centre NI, Samantha Park, says that without access to state support, her client will continue to be trapped in poverty and unable to take paid employment:
'Here is a mother of two pre-school age children, who is desperate to work and use her skills in Northern Ireland, to make a better life for her family. By denying her any state support, she is trapped in destitution. She is currently living on food vouchers, electricity tokens and £5 a week in cash.’
CG has rent arrears of over £2,000, and is fearful of losing the roof over her family's head.
'I want to work so badly, but I can't because I have no childcare. If my appeal succeeds, it would be life-changing for me and my kids. The way we live at the moment is not normal. We are in survival mode. We cannot afford healthy food, which affects you emotionally, as well as physically. I cannot even give my child an apple, which hurts me very much.'
Up to 2.25 million people, including almost 40,000 in Northern Ireland, who were living in the UK before 31 December 2020 have pre-settled status.
A ruling in CG's favour will mean that those who need it will be able to claim vital state support if they are unable to work, say, because of illness or caring responsibilities.
In December 2020, the Court of Appeal in England and Wales in Fratila v. Secretary of State for Work and Pensions  EWCA Civ 1741 made a decision in the Appellants’ favour in a case which is very similar to CG’s. The UK Government has appealed the Court of Appeal’s decision to the Supreme Court. The appeal was due to be heard in May 2021, but has been stayed (paused) pending the decision of the CJEU in CG’s case.
*Although the Brexit transition period ended on 31 December 2020, EU law still applies in this case because CG made her claim for UC before this date.) The case was referred to CJEU by the First Tier Social Security Tribunal in Northern Ireland, under the 'preliminary reference' procedure, where courts in Member States can ask for a CJEU ruling to ensure they are interpreting and applying EU law correctly in their own jurisdictions. Under the process, the Advocate General gives an initial opinion on the legal issues before the decision is given by the full Court. Advocate General opinions are not binding on the Court, but they are often persuasive. In most cases, the Court follows the steer given by the Advocate General, but it is not bound to do so, and can come to a different decision, which then must be followed by domestic courts when they apply EU law.
Law Centre NI has produced a case note on CG v. Department for Communities, which you can access here.