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Forum Home  →  Discussion  →  Residence issues  →  Thread

Fratila and Tanase v SSWP - rights of those with pre-settled status to obtain universal credit

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Martin Williams
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Unfortunately, the High Court has dismissed the claim for Judicial Review in this case.

The Claimants will be seeking to appeal to the Court of Appeal.

I have updated the page on CPAG website  and judgment is available there.

We are particularly interested in EU nationals being refused benefits at present time (please get in touch with EWS).

Additionally, if you know of a case in the Upper Tribunal or which has lost at First-tier Tribunal where the claimant has pre-settled status at date of decision of SSWP please get in touch at the .(JavaScript must be enabled to view this email address) address.


Martin

Martin Williams
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The claimants have now made an application for permission to appeal to the Court of Appeal (the High Court having refused permission).

We have also made an application for expedition- requesting that permission is determined within 28 days and that the case is heard no later than 31 July.

Permission application issued and served today.

Martin

Ros
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Guardian reporting on letter to Michael Gove from cross-party group of MEPs arguing that -

‘While the country is facing the severe consequences of the global pandemic of Covid-19, EU citizens under pre-settled status are facing significant obstacles to access social benefits such as universal credit.

This would constitute a violation of the good implementation of the withdrawal agreement … As you are well aware, the number of EU citizens under a pre-settled status cannot be considered as marginal, as it exceeds a million individuals.

Among them, those who may be in need of assistance during the current crisis are facing undue discrimination at the worst possible moment.’

UK discriminating against EU citizens, say MEPs

Martin Williams
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Permission to appeal now granted by the Court of Appeal.

Unfortunately the Court did not grant the application for expedition - although it did say the case should be heard before the end of “Michaelmas” term if at all possible -ie sometime in the window Thursday 1 October to Monday 21 December 2020.

Martin

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mycatismo
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As the decision has been stayed does that mean that if someone with pre-settled status (and no right to reside) tried to claim UC today they would still not yet be entitled? And does this “The Court of Appeal has refused the government permission to appeal to the Supreme Court. It is not yet known whether the government intends to renew its application directly to the Supreme Court ” mean that it could still be overturned, and as the decision has been stayed, nothing changes until it has gone to the Supreme Court?

Elliot Kent
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The Court of Appeal has ordered that the Regulations are quashed but has granted a temporary stay of the effect of that order. When the order takes effect the Regulations will no longer apply and that will mean that pre-settled status is sufficient to claim benefit. This will operate retrospectively.

We will have to see if the SSWP renews the application for permission to the Supreme Court. I think it is very likely that this will happen and they will probably also get permission given particularly that this is a majority decision. The Supreme Court may or may not extend the stay.

Even if the Supreme Court does not extend the stay, this will not mean that you can unproblematically claim benefit based on pre-settled status until the appeal is finally resolved. This is because the DWP are likely to stay their own decision making until any Supreme Court appeal is resolved and they will likely require the FtT to do likewise.

In practical terms, this is a similar situation to Gubeladze in that if your client can raise an argument which does not depend on the Court of Appeal’s decision being upheld then you are going to want to ask that this is determined first.

[ Edited: 18 Dec 2020 at 12:52 pm by Elliot Kent ]
Elliot Kent
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Martin Williams
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I have done some advice on what to do now - ie what the judgment means for claimants and how advisers should assist.

Diablo
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Elliot Kent
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Diablo - 11 January 2021 01:58 PM

See https://www.freemovement.org.uk/court-of-appeal-bombshell-eu-citizens-with-pre-settled-status-can-claim-benefits/

Now what?

See Martin’s post above.

Dan Manville
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I know it’s early days but any news on the appeal to SC yet? I’m advising one of these at the moment.

Ta

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Dan Manville - 14 January 2021 10:51 AM

I know it’s early days but any news on the appeal to SC yet? I’m advising one of these at the moment.

Ta

Ever the optimist Dan! Try again in June maybe.

AndreaFB
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Have there been any development in this since Martin’s document?

I have a client now who had a negative MR decision that does not even mention Fratila. All it says is:
Pre-settled Status:
You have been granted limited leave to remain in the UK for 5 years. This is also referred to as
pre-settled status. This was granted on 15/04/2020.
Limited leave to remain in itself does not provide you with recourse to access public funds.
You are still required to exercise an EU right to reside to show a qualifying status such as
worker status, self-employed status, permanent residence or other EU Treaty Right in order to
pass the Habitual Residence Test at the date of claim.

I have not seen the client’s MR request, he did that without advice and did not know anything about the test case.  And his MR was lodged on 14 12 so I think this would have been before Fratila.

Daphne
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I don’t think anything will happen before the stay runs out on 26 February

Greeny
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Dan Manville - 14 January 2021 10:51 AM

I know it’s early days but any news on the appeal to SC yet? I’m advising one of these at the moment.

Ta

Hello. Just a quick update. I advised a gentleman from Czech Republic with pre settled status on 4 Jan 21 to submit a claim to UC. I advised him to expect it to be refused or stayed (claim is based on him being single and unemployed, no family members etc). He says he had first payment to UC on 10 Feb.