Unexpected court of appeals ruling: EU citizens with pre-settled status are eligible for benefits

The Court of Appeal has handed down a ruling that should, if not successfully appealed, make it easier for millions of EU citizens with pre-settled status to claim benefits. The case is Fratila and Tanase v Secretary of State for Work and Pensions [2020] EWCA Civ 1741.

Ms Fratila and Mr Tanase argued that this was unlawful discrimination against them on the ground of nationality, contrary to EU law. In their favour was a line of decisions from the Court of Justice of the European Union on discrimination in benefits laws, including C-181/19 Jobcenter Krefeld v JD. That case was handed down so recently that the court had trouble getting its hands on an English translation — Lord Justice McCombe even flirts with the German text in the footnotes — but it seems to have been crucial.

The gist of that line of cases, the claimants argued, is that “once an EU citizen is granted a right of residence in another member state, under the provisions of that state’s law, he/she is entitled to the same benefits as those to which a national of that state, also having such right of residence, would be entitled”.

It was however a split decision: Lord Justice Dingemans dissented. He would have found, like the High Court, that this is mere indirect discrimination that could be justified. The split decision means that the Supreme Court may take up the case. Garden Court North Chambers, which was involved in the case, says that “the effect of today’s decision has been temporarily stayed while that is considered”. So in the short term there will be no change to benefits rules for EU citizens.

Over 1.8 million people in the UK have pre-settled status.

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