The Advocate General of the Court of Justice of the European Union (CJEU) will tomorrow (24 June) give a legal opinion* on whether EU nationals in the UK who were granted ‘pre-settled status’ before Brexit, are eligible to claim vital state support.
The issue was referred to the European Court in December 2020 by the Northern Ireland Social Security Tribunal.
The case follows the Department for Communities’ (DfC) – Northern Ireland’s equivalent of the Department for Work and Pensions – earlier denial of Universal Credit to a destitute young mother of two small children, who was granted ‘pre-settled status’ under the EU Settlement Scheme in June 2020.
The mother is an EU national, and has been living in the UK since 2019, which is where both her children were born. She was previously a victim of domestic violence by her ex-partner, also an EU national, who is her children’s father. She is referred to as CG by the court to protect her anonymity.
CG is being represented by Law Centre NI.
In February 2021, the President of the Appeals Tribunal in NI described CG as: ‘destitute and in dire financial straits’ in a letter to the CJEU. Despite this, CG has no entitlement to benefits, as her ‘pre-settled status’ under the EU Settlement Scheme, on its own, does not meet the relevant legal criteria for state support.
The outcome of the case will be of significance across the whole of the UK.
CG’s 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.‚Äô
Since January 2021, CG has been surviving on ¬£55 a week, made up of ¬£30 in food vouchers; ¬£20 tokens for electricity and gas; and ¬£5 cash. She has rent arrears of over ¬£2,000.
The hearing before the European Court was held on 4 May 2021 in Luxembourg with CG’s lawyers attending remotely. The Court was told of CG‚Äôs destitute circumstances.
If CG were entitled to state support, as well as having her rent paid, she would receive child benefit, plus over ¬£200 a week Universal Credit, and have access to the government’s new ‘Healthy Start’ food voucher scheme, which is aimed at protecting the health of very young children growing up in the poorest families. She would also be entitled to free or subsidised childcare once she is established in work.
‘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.’
DfC says 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.)
CG’s lawyers argue that this restriction breaks EU law by being unlawfully discriminatory on grounds of nationality.
Pre-settled status was given to EU citizens who have been living in the UK less than five years at time of Brexit to enable them to remain in the UK.
Up to two million people, including 25,000 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.
* 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, in this case, Advocate General de la Tour, 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.
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.
Notes for editors
- Universal Credit (Northern Ireland) Regulations 2016 (Reg 9(3)(d)(i))
- *Following a ‘preliminary reference’ by the NI social security tribunal, the CJEU’s Advocate General de la Tour will give an opinion on the case, followed by a final ruling by the CJEU.
- Department for Communities is the Northern Ireland department responsible for social security benefits (equivalent to DWP).
- Law Centre NI has produced a case note on CG v. Department for Communities, which you can access here: https://lawcentreni.s3.amazona…