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Fratila and Tanase v SSWP - rights of those with pre-settled status to obtain universal credit
We’ve flagged up this thread in our rightsnet news on the ADM Memo to highlight concerns about the legitimacy of DWP’s approach to post 1 January 2021 cases.
But I am not happy with the idea that the government can simply reinstate the restriction by making some new regs to say the same thing - I think the Withdrawal Agreement makes that impossible because it perpetuates the application of Art 18 TFEU.
This may or may not be right but it seems unlikely that this will be ruled on by the Supreme Court given the concessions in the case so if new regulations are issued it would need to be a new JR.
I didn’t notice any concessions about the situation post transition period - there is McCombe LJ’s (obiter) comment at 26, but it’s not argued. Dingemans LJ makes another (obiter) point about whether the discrimination could have been lawful if pre-settled status had been created after 31/01/2020 which just highlights for me that the effect of the Withdrawal Agreement just wasn’t argued or considered - which is correct because it’s not relevant to the points on appeal. It’s not a binding part of the judgment but if it was it could be ignored because it was decided without considering the Withdrawal Agreement - for latin legal fans it’s kind of like obiter dictum meets per incuriam so it’s misleading for the DWP to be relying on it in the ADM. But yes, that absolutely means it hasn’t been decided and probably won’t be and so any further unlawful regulations would need a new JR.
Given the concerns about the legitimacy of the DWPs approach to claims made after 31.12.20, I’m interested to know if other WR colleagues are actively encouraging clients to dispute decisions in the usual way?
My own stance is to play it safe and to submit MRs, revisions and appeals (in event that the approach by the DWP is eventually challenged and proved wrong).
Thoughts welcome
I don’t think there is any change from Martin’s advice.
If possible, look for an argument which does not depend on the SSWP appeal failing because this will allow for quicker resolution. Otherwise, refusal of benefit to people with pre-settled status only should be challenged awaiting the decision of the Supreme Court.
In the absence of any new regulations, I can’t see that it matters whether the case is before or after the end of the transitional period.
The Supreme Court hearing in Fratila and referral to the CJEU by a Northern Ireland first-tier Tribunal on the same point - rights of those with pre-settled status - have both been expedited and are due to be heard in May 2021
CJEU scheduled for 4 May 2021 and Supreme Court for 18/19 May 2021
Excellent article by Professor Charlotte O’Brien - Fratila - Race to judgment! Supreme Court AND the Court of Justice of the EU expedite parallel cases
[ Edited: 9 Mar 2021 at 11:45 am by Daphne ]From Professor Charlotte O’Brien over on Twitter:
For those following the Fratila pre-settled status/access to benefits saga - the CJEU has officially published the questions referred in the parallel case C-709/20; this will affect the interpretation of equal treatment & EU citizenship in *ALL* of the EU: https://curia.europa.eu/juris/document/document.jsf?text=&docid=239465&pageIndex=0&doclang=en&mode=lst&dir;=&occ=first&part=1&cid=5215418
Update from Charlotte O’Brien at the EU Rights and Brexit Hub:
The UK has lobbed a farewell grenade at the EU: the ramifications of CG v Department for Communities
What approach are people taking to hearings that are being listed for cases that are dependent on the outcome of the Fratila case?
What approach are people taking to hearings that are being listed for cases that are dependent on the outcome of the Fratila case?
Martin Williams gives really useful advice at https://cpag.org.uk/sites/default/files/files/resource/Fratila-advice-for-claimants-08-03-21_0.pdf
The Supreme Court is now saying that -
This appeal will not now go ahead as a result of information provided to the Court.
Judgment on the CJEU case (which was heard 4 May) is expected in about July we were told at CPAG seminar a couple of weeks ago.
Are we to take it that the matter will be decided by the outcome of the CJEU case?
We are not going to have a final position on this until both the CJEU and UKSC decisions (and even then in practice there will probably be another wait for an ADM Memo). The CJEU decision is going to be an enormously important part of the UKSC proceedings but it would be naive to assume that whoever loses at CJEU will not make some attempt to argue that there is some basis on which the decision can be distinguished.
I’ve updated our website note on this case and also the advice for claimants.
For those who want a TLDR:
1. The UKSC hearing did not go ahead as parties agreed the CJEU decision in DfC will bind the parties (Advocate General in that is expected towards end of June with earliest one would expect judgment end on July and probably later) - therefore UKSC should wait before deciding on further case management.
2. CPAG have asked the UKSC to reconsider the stay on the Court of Appeal Order- our view is that such a stay is wrong. If the stay is lifted then individual claimants should be able to ask for their cases not to be stockpiled and for payment to be made. UKSC will hopefully consider this issue some time shortly after 25 May 2021.
[ Edited: 21 May 2021 at 11:06 am by Martin Williams ]What approach are people taking to hearings that are being listed for cases that are dependent on the outcome of the Fratila case?
Martin Williams gives really useful advice at https://cpag.org.uk/sites/default/files/files/resource/Fratila-advice-for-claimants-08-03-21_0.pdf
The link in this will no longer work as I’ve updated that advice - see my post immediately above.
If the stay on the Court of Appeal Order is lifted, where does that leave post 1 January 2021 cases that rely solely on Fratila? We know that DWP’s approach is that Fratila is not applicable but various arguments are made in this thread why that is wrong.
I anticipate difficulty if the stay is lifted and we are asking DWP to make payment in such a case?