The Court of Justice of the European Union (CJEU) has upheld a UK rule that bars some EU citizens in the United Kingdom (UK) from accessing benefits, implying that UK may be able to discriminate against EU nationals who have been granted the right to live and work in the UK after Brexit
Specifically, the rule applies to those who have “pre-settled status”, which is one of two new statuses created under the EU Settlement Scheme allowing EU/EEA nationals (and their family members) to remain in the UK post-Brexit.
The latest court decision has huge implications for millions of EU nationals in the UK, some of whom have been resident and working in the UK for years.
According to legal experts, the ruling also raises questions about the meaning of equal treatment throughout the EU.
Broadly, those who can show they had lived the UK for five years or more are entitled to settled status, while those with a shorter period of residence get pre-settled status.
A news report by EIN News indicated that so far, over 2.3 million people had been granted pre-settled status.
The rights of each status are largely the same, but with one vital difference. In 2019, the UK government introduced regulations requiring those with pre-settled status to show another “right to reside” (typically meaning they are in work) before they can claim welfare benefits.
The news report further expatiated: “The case in question concerns CG, an EU national woman with pre-settled status, who came to Northern Ireland in 2018. She subsequently fled a domestic violence situation and has been living in a refuge with her two children. She applied for – and was refused – universal credit on the grounds that her pre-settled status did not entitle her to access benefits in the UK.
“Law Centre Northern Ireland persuaded a first-tier benefit tribunal to take the unusual step of referring the case to the CJEU, to ask whether this restriction was discriminatory, and whether EU nationals with pre-settled status should therefore have the same access to benefits as UK nationals.
“Without much explanation, the court ruled that people in the UK with pre-settled status cannot rely on the right – enshrined in the treaty on the functioning of the EU – to equal treatment on the grounds of nationality. The court also considered whether EU nationals could challenge being denied benefits as discriminatory within the meaning of the Free Movement Directive, which lays down residence rights and conditions for some EU migrants. The view was that these people first had to meet certain conditions, usually being in work.
“However, the court suggested that while the UK was entitled to withhold benefits from CG, it must check whether doing so would violate her fundamental rights as contained in the Charter of Fundamental Rights of the EU. These include the right to live in dignity, the right to private and family life, and the best interests of the child”, EIN News added.
According to the online news medium, what is particularly interesting about this case ”is CG’s position as a woman and a mother. The Free Movement Directive, like other EU free movement laws, is biased in favour of men – taking no account of periods of childcare, care for disabled or elderly relatives, or of periods of instability caused by fleeing from domestic abuse. These social-security risks all disproportionately affect women.
“The court of appeal of England and Wales faced exactly the same questions in the case of Fratila in October 2020, but reached a dramatically different conclusion. It ruled that people with pre-settled status were entitled to the protection of EU law from discrimination on the ground of nationality, and should be entitled to claim benefits in the UK.
“The UK government appealed to the supreme court, but the case was put on hold pending the CJEU’s judgment in the case of CG. As the CJEU’s ruling has not unequivocally endorsed or prohibited the UK rules, it seems likely that there will now be further hearings. Many claims will be put on hold while we wait for these cases to be resolved”, the news medium added.
