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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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I think the DWP accept if the stay is lifted then they have no regulations which produce the effect they want. The revised version of their guidance indicates that (and it is also an argument they have made to the UKSC in their efforts to maintain the stay).

Elliot Kent
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Interesting that they have changed their mind - do you have the revised guidance Martin as I can’t find it?

Charles
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I assume he is referring to the change made to ADM 2/21 at para. 20 (and equivalent DMG).

Current one is here: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/988222/adm2-21.pdf

Old one is linked to here: https://webarchive.nationalarchives.gov.uk/20210510170029/https://www.gov.uk/government/publications/advice-for-decision-making-staff-guide

I saw this change at the time, and thought it might be related to this, but I couldn’t work out what the change in wording meant!

[ Edited: 18 Jun 2021 at 04:23 pm by Charles ]
Elliot Kent
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So old version is:

20. Although the decision of the Court of Appeal in Fratila quashes the amendments made to the regulations for income-related benefits by the 2019 Regulations, this only has effect up to the end of the transition period. Therefore, the grant of a stay of execution on the quashing order means that decisions from 1 January 2021 can still be made relying on the 2019 Regulations. However, if you are unsure which cohort a claimant falls into, please do not hesitate to contact DMA Leeds for guidance

and the new version is:

20. Although the decision of the Court of Appeal in Fratila quashes the amendments made to the regulations for income-related benefits by the 2019 Regulations, the judgment itself is only relevant to claims made up to the end of the transition period. Therefore, the grant of a stay of execution on the quashing order means that decisions from 1 January 2021 can still be made relying on the 2019 Regulations. However, if you are unsure which cohort a claimant falls into, please do not hesitate to contact DMA Leeds for guidance.

Aren’t they just both slightly differently wrong? Regs quashed = regs quashed. I don’t understand how they can try to argue that the regs have been quashed but that somehow there is a cohort of cases which can be determined under the quashed regs. That is just nonsense isn’t it? Even if we accept that the Court did not have a particular cohort in mind when it quashed the regs, they are still quashed (subject to the stay/appeal at least).

Elliot Kent
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I have had another look at it and maybe I get it this time?

They are not saying that the quashing order has any different effect depending on whether the case is pre- or post- transition. They are saying that the quashing order has no effect at all - due to the stay. They have then said that they will continue to deal with the post-transition cases but not the pre-transition cases.

Even though the implication of the first part of the paragraph is that the Court’s decision requires or authorises the difference of treatment, this is not really the case. They have just decided to treat the pre-transition cases and not the post-transition cases as lookalikes. So the DWP then are assuming the risk that if the quashing order is upheld (or the stay removed) the post-transition cases are likely going to need to be reviewed?

Maybe someone will put me out of my misery…

Ros
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Press release on Advocate General’s Opinion in CJEU Case C-709/20 - the case referred by the Appeal Tribunal in Northern Ireland - is out - good news -

https://curia.europa.eu/jcms/upload/docs/application/pdf/2021-06/cp210115en.pdf

According to press release, Advocate General finds that -

The grant without conditions as to resources of a right of residence by a Member State to Union citizens cannot have the effect of systematically excluding them from social assistance granted to nationals of that State without constituting discrimination based on nationality

The refusal of those benefits, in so far as it is systematic and based on the nature of the legal right of residence, even though it is justified by concern for the protection of the financial equilibrium of the financial assistance system, goes beyond what is necessary to achieve that objective

Opinion itself not published yet but sure it will be shortly…

 

[ Edited: 24 Jun 2021 at 11:21 am by Ros ]
Ros
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Martin Williams
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Update:

1. Judgment by the CJEU (Grand Chamber) in C-709/20 will be delivered on 15/07/2021.

2. The Supreme Court has indicated that once it has the judgment from CJEU it will consider the application we have made for the stay on the Court of Appeal Order to be lifted.

I have updated:

- Our website test case page .

- The advice for claimants (so link earlier in this thread will not work).

There is no difference to what people need to do to protect their rights.

Martin

[edited to fix broken link as updated due to correcting a slip with a date]

[ Edited: 1 Jul 2021 at 01:28 pm by Martin Williams ]
Ros
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Judgment in Case C‑709/20 now out -

https://curia.europa.eu/juris/document/document.jsf?text=&docid=244198&pageIndex=0&doclang=en&mode=lst&dir;=&occ=first&part=1&cid=2371865

Court rules that -

Article 24 of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC must be interpreted as not precluding the legislation of a host Member State which excludes from social assistance economically inactive Union citizens who do not have sufficient resources and to whom that State has granted a temporary right of residence, where those benefits are guaranteed to nationals of the Member State concerned who are in the same situation.

However, provided that a Union citizen resides legally, on the basis of national law, in the territory of a Member State other than that of which he or she is a national, the national authorities empowered to grant social assistance are required to check that a refusal to grant such benefits based on that legislation does not expose that citizen, and the children for which he or she is responsible, to an actual and current risk of violation of their fundamental rights, as enshrined in Articles 1, 7 and 24 of the Charter of Fundamental Rights of the European Union. Where that citizen does not have any resources to provide for his or her own needs and those of his or her children and is isolated, those authorities must ensure that, in the event of a refusal to grant social assistance, that citizen may nevertheless live with his or her children in dignified conditions. In the context of that examination, those authorities may take into account all means of assistance provided for by national law, from which the citizen concerned and her children are actually entitled to benefit.

HB Anorak
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Hmm, Zambrano and the Children Act again is it then?

Mr Jim
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“Where that citizen does not have any resources to provide for his or her own needs and those of his or her children and is isolated, those authorities must ensure that, in the event of a refusal to grant social assistance, that citizen may nevertheless live with his or her children in dignified conditions. In the context of that examination, those authorities may take into account all means of assistance provided for by national law, from which the citizen concerned and her children are actually entitled to benefit.”

I’m interpreting the above as the responsibility falling on the local authority to provide - similar to NRPF duties. What do others think?

Jim

Elliot Kent
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Mr Jim - 15 July 2021 03:58 PM

I’m interpreting the above as the responsibility falling on the local authority to provide - similar to NRPF duties. What do others think?

I have had a quick look at the decision - it still seems ambigious how exactly it operates in the national context and I think we need to wait and see what UKSC say.

Elliot Kent
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Commentary on CG

Professor Charlotte O’Brien, who knows this area better than most anyone, describes the decision as “convoluted and incoherent” in her post on the EU Rights Hub blog:
https://www.eurightshub.york.ac.uk/blog/lcspfgeqe30ogkavqd1dupc9250hfy

And Free Movement - whose founder Colin Yeo (an immigration barrister by trade) described the decision as “look[ing] like a mess and a fudge” also has a post: https://www.freemovement.org.uk/denying-benefits-to-eu-pre-settled-status-holders-justified-if-no-fundamental-rights-breached/

The general expectation was that the CJEU in CG would decisively resolve the legal issues on which this entire episode rested. Instead it has thrown a curveball by reframing those issues without fully resolving them and then it has passed the buck back to the national courts to figure out the rest. We will have to wait and see what the UKSC says in Fratila.

Carolyn Goldhill
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Any guidance on this issue would be helpful. Have a case now (UC MR refusal dated 9th July) where a single parent with pre-settled status found herself unable to work due to unexpected serious illness of her child. She is staying with distant relatives and has no means to support herself. Arrived in UK September 2020 and has never worked here.

Any advice would be welcome as to whether it is worthwhile submitting an appeal, and if so, on what grounds?

Thanks!

Elliot Kent
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Carolyn Goldhill - 20 July 2021 12:11 PM

Any guidance on this issue would be helpful. Have a case now (UC MR refusal dated 9th July) where a single parent with pre-settled status found herself unable to work due to unexpected serious illness of her child. She is staying with distant relatives and has no means to support herself. Arrived in UK September 2020 and has never worked here.

Any advice would be welcome as to whether it is worthwhile submitting an appeal, and if so, on what grounds?

Thanks!

There is practical advice on the CPAG website which should still be followed.
https://cpag.org.uk/welfare-rights/legal-test-cases/current-test-cases/eu-pre-settled-status