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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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mycatismo
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Greeny - 17 February 2021 01:42 PM
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.

 

Is there a chance he retained his worker status as voluntarily unemployed hence did have a right to reside?

Pete at CAB
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Elliot Kent
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Pete at CAB - 19 February 2021 11:42 AM

A colleague has just sent me this- looks like the SoS might be going to the Supreme Court


https://www.gardencourtchambers.co.uk/news/social-welfare-updates/social-welfare-update-court-of-appeal-rules-that-the-exclusion-of-eea-citizens-with-pre-settled-status-from-accessing-universal-credit-is-unlawful

Yes, I don’t think we ought to be too surprised…

GCH Tenancy Sustainment
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Daphne - 26 January 2021 03:12 PM

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

Hi, do we know if the SoS has requested an appeal to the Supreme Court yet?

Pete at CAB
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Mike Haran
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Tom de la Mare QC (acting for Fratila and Tanase) has just told an EU webinar that the Supreme Court has given
the Secretary of State permission to appeal. In addition, a reference to the CJEU was made from Northern Ireland in late December on the same issue of Pre-Settle status).

No further information available.

Paul_Treloar_AgeUK
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Elliot Kent
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Notably the Supreme Court has extended the stay on the effect of the decision until the matter is resolved (which could easily be in 2023 given there is now an ECJ case ongoing also).

Charles
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I note the latest DWP guidance suggests that Fratila has no effect on claims for benefit made since 01/01/21 due to the grant of a stay in the execution of the quashing order. This is unlike Martin William’s advice that as the regs were quashed, they could not have effect after the transition period without being remade.

BC Welfare Rights
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Paragraph 15 of the judgement, referred to in the ADM memo, says:

The Claimants accept that the legal basis for their claim (i.e. their ability to rely on
Article 18 TFEU) will disappear with effect from the end of the implementation
period provided by section 1A of the European Union (Withdrawal) Act 2018. As
matters presently stand, the implementation period will end at 11pm on 31 December
2020 (see section 39 of the European Union (Withdrawal Agreement) Act 2020).
Thus, what is in issue in this claim is Mr Tanase’s entitlement to Universal Credit
from the date of his application to the Department for Work and Pensions in June
2019 until 31 December 2020. If this claim succeeds it will be open to all other EU
nationals entitled to pre-settled status to rely on that status for the purposes of the
habitual residence requirement for Universal Credit, and for the purposes of the
materially identical requirements in each of the other six welfare benefits affected by
the same amendment made by the 2019 Social Security Regulations (as listed above,
at paragraph 1).

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/965500/adm-02-21.pdf

Elliot Kent
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Charles - 01 March 2021 09:26 PM

I note the latest DWP guidance suggests that Fratila has no effect on claims for benefit made since 01/01/21 due to the grant of a stay in the execution of the quashing order. This is unlike Martin William’s advice that as the regs were quashed, they could not have effect after the transition period without being remade.

Yeah, the memo seems to be saying that because the Court of Appeal’s decision to quash the regulations was based on “arguments [which] turn upon the present state of EU law, as it still applies in the United Kingdom during the transition period, after formal secession from the EU and up to the end of the transition period on 31 December 2020” (para 26), that means that after the end of the transition period, those arguments don’t apply and the regulations re-appear.

I don’t think that this is right.  The court ordered that the various regulations are quashed. That was not expressed as conditional or time limited in any way. Subject to stay, appeal etc, quashing is a binary event. Once they are quashed, they are gone - even if the court’s reasons for having done so would no longer apply. New regs would then be needed.

 

BC Welfare Rights
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Sorry, I posted before finishing… i.e. the ADM memo seems to rely on the High Court decision rather than the Court of Appeal one

Timothy Seaside
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I prefer Prof Charlotte O’Brien’s opinion which says the suggestion in the judgment (para 26) that all of this only applies to claims made during transition is wrong (and it follows that the ADM would be). The withdrawal agreement guarantees non-discrimination (Art 12) for any EU national who was in the UK by 31/12/2020 (Art 10). It is the date of entry to the UK that matters, not the date of any application. Although it’s rather academic at the moment, while we wait to see what the ECJ and SC come up with.

Edit: when I say I prefer Prof O’Brien’s opinion, I don’t mean that it is opposed to the argument Elliott is putting forward. I think Elliott (and Martin) must be right too - when an SI is quashed, it is as if it had never happened; like it was just a bad dream. But I am not happy with the idea that the government can simply reinstate the restriction by making some new regs to say the same thing - I think the Withdrawal Agreement makes that impossible because it perpetuates the application of Art 18 TFEU.

[ Edited: 2 Mar 2021 at 10:56 am by Timothy Seaside ]
Elliot Kent
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Timothy Seaside - 02 March 2021 10:43 AM

But I am not happy with the idea that the government can simply reinstate the restriction by making some new regs to say the same thing - I think the Withdrawal Agreement makes that impossible because it perpetuates the application of Art 18 TFEU.

This may or may not be right but it seems unlikely that this will be ruled on by the Supreme Court given the concessions in the case so if new regulations are issued it would need to be a new JR.