The court of appeal has ruled that EU nationals holding the right to residence in the UK cannot be excluded from claiming means-tested benefits.
This decision by three senior judges strengthens the rights of the estimated 1.8 million people in the UK holding “pre-settled status” under the EU settlement scheme. It enables them to access benefits on the same basis as British citizens.
By a majority, the court also found that the refusal to prevent two Romanian citizens – a severely disabled man and his carer – from claiming universal credit amounted to discrimination on the grounds of nationality.
The test case was brought by Child Poverty Action Group (CPAG) on behalf of two Romanian nationals who came to the UK in 2019 and 2014.
In 2019 they were granted limited leave to remain in the UK under the EU settlement scheme but were refused universal credit on the grounds that their pre-settled status was not a sufficient right to grant them access to means-tested benefits.
Mr Justice McCombe, delivering the judgement said: “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 Department for Work and Pensions (DWP) intends to appeal against the ruling. It was granted a stay until 26th February 2021 during which time the department does not have to implement the judgement.
An order handed down by the court noted that “the legal landscape changes on 1st January 2021” and it should be left to the supreme court to decide whether it wants to hear an appeal.
CPAG estimates that more than 50,000 households have been refused benefits which they were entitled to since November 2019 as a result of the DWP’s policy.
Martin Williams, CPAG’s welfare rights adviser, welcoming the ruling, said: “This confirms that the EU nationals with pre-settled status in the UK cannot lawfully be treated less favourably than British nationals in respect of their entitlement to means tested benefits”.
“We are pleased that the court of appeal has recognised that the denial of the support to EU citizens whose homes and lives are in the UK is discriminatory and unlawful. The judgement will bring justice and protection to thousands of EU citizens who have made Britain their home whilst the UK was still part of the EU, or during the transition period, and are on the path to settled status in the UK”.
“The Coronavirus pandemic has graphically illustrated how anyone can suddenly find they need help from the benefit system to get by. We have seen EU citizens and their children left destitute by this discriminatory rule through no fault of their own”.
“Vulnerable groups such as women and children who may have, for example, previously had support from a British partner or father until a relationship breakdown, have been left without access to a vital safety net. We hope that the UK government will now take steps to ensure that this group continues to be supported after the transition period ends”.
A government spokesperson said: “Applying to the EU Settlement Scheme means EEA citizens and their family members in the UK will be able to access benefits on the same basis as they do now. We are disappointed with this judgement and are considering our next steps”.