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Supreme Court allows DWP’s appeal over universal credit

By Sam Tobin >>

(1 December 2021)

The Supreme Court has allowed the government’s appeal in a case about the right of EU nationals with pre-settled status to claim universal credit, holding that a Court of Justice of the European Union ruling has ‘binding force in its entirety on and in the United Kingdom’.

The Department for Work and Pensions’ appeal was unanimously allowed by the UK’s highest court today without a hearing, as a CJEU ruling in July ‘definitively’ answered the case.

In Fratila and another v Secretary of State for Work and Pensions, the court considered an appeal ‘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’.

Two Romanian nationals brought a judicial review over regulations which prevent leave to remain arising from pre-settled status under the EU settlement scheme from ‘constituting a qualifying right of residence’ for certain benefits, including universal credit.

Their claim was dismissed but the Court of Appeal held by a 2-1 majority that the regulations amounted to discrimination on the grounds of nationality, as prohibited by Article 18 of the Treaty on the Functioning of the European Union. 

The DWP was given permission to appeal and a Supreme Court hearing listed for May was vacated pending the CJEU’s ruling in a similar case concerning ‘materially indistinguishable’ regulations, CG v Department for Communities in Northern Ireland.

In CG, the CJEU held that the question of whether an EU national faces discrimination on grounds of nationality falls to be assessed by reference to an EU directive in relation to EU citizens who exercise their right to move and reside within the territory of the member states, ‘not by the independent application of Article 18’.

In lead judgment, Lord Lloyd-Jones said that, ‘as a result, the first issue in this appeal has been answered by the CJEU definitively in favour of the appellant’. The issue of whether the regulations amounted to direct or indirect discrimination and, if so, whether it could be justified therefore ‘does not arise’, Lloyd-Jones added.

After the CJEU’s ruling in CG, the respondents wrote to the Supreme Court and argued that, since EU citizens who are lawfully resident in the UK on the basis of pre-settled status are within the scope of EU law, they were entitled to rely on the EU’s Charter of Fundamental Rights.

However, Lloyd-Jones said it would ‘clearly be inappropriate’ to allow the respondents ‘an entirely new case’, which would raise undetermined issues of fact.

(Courtesy: The Law Society Gazette)