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Permission granted in judicial review against rules providing pre-settled status not a sufficient right of residence for UC etc.

Martin Williams
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Welfare rights advisor - CPAG, London

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Total Posts: 769

Joined: 16 June 2010

Today the High Court has granted two claimants, permission to bring judicial review proceedings against the 07/05/2019 amendments which provide that pre-settled status is not a sufficient right of residence to obtain UC and other benefits to which the right to reside test applies:

https://cpag.org.uk/welfare-rights/legal-test-cases/current-test-cases/eu-pre-settled-status

Other EEA national claimants with pre-settled status who are refused UC (or other benefits to which the right to reside test applies) should probably:

1. Seek to challenge at MR and/or appeal any such decision on the grounds of any alternative rights of residence they have.

2. Additionally (or alternatively if no other residence rights they can rely on) argue that the 2019 amendments are unlawful for the reasons argued in the judicial review case.

3. If there are no other residence rights and the issue is urgent for the claimant, attempt to persuade the FTT not to stay proceedings pending the JR on the basis the argument is clear and the FTT has a duty to set-aside provisions of national law which conflict with EU law (Simmenthal etc) and that the delay for the JR would not be consistent with the overriding objective given potential effect on client (losing home or whatever facts are….)- I would emphasize such arguments should be reserved for cases where the consequences of a stay would really be terrible for the claimant.

4. If the issue is less urgent and no other residence rights probably accept a stay.

5. If client has other residence rights then decide whether they can allow client to win as preliminary issue and if not then see 3 and 4 above.

Martin.

Martin Williams
forum member

Welfare rights advisor - CPAG, London

Send message

Total Posts: 769

Joined: 16 June 2010

This case is listed for 18th and 19th of February.

Martin.