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

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We’ve flagged up this thread in our rightsnet news on the ADM Memo to highlight concerns about the legitimacy of DWP’s approach to post 1 January 2021 cases.

Timothy Seaside
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Elliot Kent - 02 March 2021 12:06 PM
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.

I didn’t notice any concessions about the situation post transition period - there is McCombe LJ’s (obiter) comment at 26, but it’s not argued. Dingemans LJ makes another (obiter) point about whether the discrimination could have been lawful if pre-settled status had been created after 31/01/2020 which just highlights for me that the effect of the Withdrawal Agreement just wasn’t argued or considered - which is correct because it’s not relevant to the points on appeal. It’s not a binding part of the judgment but if it was it could be ignored because it was decided without considering the Withdrawal Agreement - for latin legal fans it’s kind of like obiter dictum meets per incuriam so it’s misleading for the DWP to be relying on it in the ADM. But yes, that absolutely means it hasn’t been decided and probably won’t be and so any further unlawful regulations would need a new JR.


Allan Ramsay
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Given the concerns about the legitimacy of the DWPs approach to claims made after 31.12.20, I’m interested to know if other WR colleagues are actively encouraging clients to dispute decisions in the usual way?

My own stance is to play it safe and to submit MRs, revisions and appeals (in event that the approach by the DWP is eventually challenged and proved wrong). 

Thoughts welcome

Elliot Kent
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I don’t think there is any change from Martin’s advice.

If possible, look for an argument which does not depend on the SSWP appeal failing because this will allow for quicker resolution. Otherwise, refusal of benefit to people with pre-settled status only should be challenged awaiting the decision of the Supreme Court.

In the absence of any new regulations, I can’t see that it matters whether the case is before or after the end of the transitional period.


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The Supreme Court hearing in Fratila and referral to the CJEU by a Northern Ireland first-tier Tribunal on the same point - rights of those with pre-settled status - have both been expedited and are due to be heard in May 2021

CJEU scheduled for 4 May 2021 and Supreme Court for 18/19 May 2021

Excellent article by Professor Charlotte O’Brien - Fratila - Race to judgment! Supreme Court AND the Court of Justice of the EU expedite parallel cases

[ Edited: 9 Mar 2021 at 11:45 am by Daphne ]
shawn mach

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From Professor Charlotte O’Brien over on Twitter:

For those following the Fratila pre-settled status/access to benefits saga - the CJEU has officially published the questions referred in the parallel case C-709/20; this will affect the interpretation of equal treatment & EU citizenship in *ALL* of the EU:;=&occ=first&part=1&cid=5215418