Fratila and Tanase v SSWP & AIRE Centre [2020]

Court of Appeal Rules EU Nationals with Pre-Settled Status Can Claim Means-Tested Benefits

By Katherine Magee

On 18th December 2020, the Court of Appeal ruled that preventing reliance on pre-settled status in order to claim means-tested benefits amounted to unlawful discrimination on the grounds of nationality.

The case of Fratila and Tanase v SSWP & AIRE Centre, where the ruling was made, concerned the Social Security (Income Related Benefits) (Updating and Amendment) (EU exit) Regulations 2019, which prevent reliance upon pre-settled status to claim means-tested benefits. Instead, those with pre-settled status must also demonstrate a further ‘qualifying right to reside’ in the UK, for example by being a ‘worker’, ‘self-employed person’ etc.

The case was brought by Child Poverty Action Group (CPAG) on behalf of two Romanian nationals, Ms Fratila and Mr Tanase. The claimants were granted leave to remain in the UK in 2019, but were denied universal credit as their pre-settled status was not a sufficient right to grant them access to means-tested benefits.

A majority of the Court found that the exclusion of pre-settled status as a sufficient ground to claim means-tested benefits was directly discriminatory on the grounds of nationality under Article 18 TFEU.

In his leading judgment, Mr Justice McCombe stated that: “It is perhaps not surprising that EU law should, in principle, allow EU nationals to take benefit from particular national laws of individual states if they lawfully reside in the state in question, without discrimination on the basis of nationality. Such entitlement would be entirely consonant with the aims and objects of the union.”

The ruling in Fratila and Tanase v SSWP & AIRE Centre quashes the legislation which prevents the possession of a pre-settled status from being a sufficient ground to access means-tested benefits. The Court issued a short stay until the 26th February 2021, during which time the judgment does not have to be implemented. Once this stay is lifted, however, anyone with pre-settled status can access means-tested benefits.

The judgment is welcomed by thousands of EU citizens who have made the UK their home up until the end of the transition period, as they will eventually be granted the settled status. Access to benefits is particularly important to vulnerable groups, such as women and children, who may otherwise have no access to a safety net after a relationship with a UK national breaks down and they lose their rights, for instance. The coronavirus pandemic has been a powerful reminder that anyone can suddenly find themselves having to rely on benefits to help get by, and it is thus obvious that easy access to the benefit system is extremely important.


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