Supreme Court allows appeal clarifying scope of application of EU non-discrimination law

06 Dec 2021
Tim Ward KC

The Supreme Court has allowed the Secretary of State’s appeal in R(Fratila) v Secretary of State for Work and Pensions. The judgment can be found here.

The case concerned the scope of application of Article 18 TFEU, which prohibits discrimination on grounds of nationality. The applicants had obtained “pre-settled status” under the UK’s EU Settlement Scheme. Those rules created new domestic rights of residence for certain EU citizens in the UK prior to IP Completion Day, in preparation for Brexit. Those who satisfied the rules but had not yet completed five years of lawful presence in the UK were granted “pre-settled status”. Legislation provided that pre-settled status did not itself satisfy the requirement to have a “right to reside” in order to claim Universal Credit (and certain other benefits).

The facts of the case concerned the position prior to IP Completion Day.

The applicants argued that this gave rise to direct discrimination on grounds of nationality, contrary to Article 18 TFEU, in reliance on a line of cases including C-456/02 Trojani. They argued that once a citizen is granted a right of residence in another Member State under the provisions of domestic law, they are entitled to the same benefits as a national of that state also having a right of residence. The Court of Appeal accepted this argument, and the majority concluded the rules were directly discriminatory and could not be justified. The Secretary of State appealed to the Supreme Court.

In July 2021 in Case C-709/20 CG, the CJEU ruled that an EU citizen could only rely upon Article 18 TFEU if their residence in a host Member State complied with the conditions laid down in Directive 2004/38 EC, the Citizenship Directive.

As the applicants in the Fratila case had not complied with those conditions, the Supreme Court ruled that they could not rely on the EU principle of non-discrimination to claim a right equal treatment in respect of entitlement to Universal Credit, and allowed the appeal.

The case is of importance in establishing that rights of residence in domestic law do not give rise to a right of equal treatment under Article 18 TFEU in EU law.

Tim Ward QC acted for the Secretary of State