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On appeal from [2020] EWCA Civ 1741

The Respondents are Romanian nationals residing in the UK. They both made applications for universal credit in June 2019. At the time of their applications, the Respondents’ right to reside in the UK arose solely from their pre-settled status under the EU Settlement Scheme. The Respondents’ applications were refused because the Universal Credit Regulations 2013, as amended by the Social Security (Income Related Benefits) (Updating and Amendment) (EU exit) Regulations 2019 (the “2019 Regulations”) do not permit universal credit to be granted solely on the basis of an individual’s pre–settled status.

The Respondents challenged the refusals of their applications for universal credit by way of judicial review. They argued that the 2019 Regulations should be quashed as contrary to the prohibition on discrimination on the grounds of nationality in Article 18 of the Treaty on the Functioning of the European Union (“article 18 TFEU”). In the High Court, Swift J dismissed the Respondents’ claim. However, the Court of Appeal (McCombe and Moylan LJJ, Dingemans LJ dissenting) allowed the Respondents’ appeal. The Appellant then appealed to the Supreme Court.

 

HELD – The Supreme Court unanimously allows the appeal. The Respondents’ challenge to the 2019 Regulations therefore fails. Lord Lloyd-Jones gives the Court’s judgment.

 

The Court of Justice of the European Union delivered its judgment in Case C-709/20 CG v The Department for Communities in Northern Ireland. The CJEU held that article 18 TFEU has no application to the Universal Credit Regulations (Northern Ireland) 2016, as amended by the Social Security (Income-related Benefits) (Updating and Amendment) (EU Exit) Regulations (Northern Ireland) 2019 (which are materially similar to the Universal Credit Regulations 2013, as amended by the 2019 Regulations). The CJEU’s judgment is binding because this case concerns the application of EU law during the transition period following the UK’s withdrawal from the EU. In accordance with the CJEU’s judgment in CG, the Respondents are therefore not entitled to rely on article 18 TFEU.

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