Restrictions to benefit: ‘pre-settled status’

CPAG is looking to challenge the amended right to reside tests for benefit and child tax credit claimants with ‘pre-settled status’. Martin Williams explains.

From 7 May amendments to the right to reside tests for benefits and child tax credit provide that a right of residence in the form of ‘pre-settled status’ under the European Union (EU) Settlement Scheme is not sufficient for benefit or child tax credit entitlement.

CPAG believes that, applying relevant caselaw, these amendments may not be lawful when applied to EU nationals. C-456/02 Michel Trojani v Centre public d’aide sociale de Bruxelles (CPAS) [2004] ECR I-07573, as interpreted by the British Courts (eg, see Lady Hale at paragraph 106 of Patmalniece (FC) (Appellant) v SSWP (Respondent) [2011] UKSC 11), establishes that if an EU national has a right of residence under domestic law then s/he cannot be treated differently to a UK national in terms of access to benefits. Such regulations can simply be disapplied by any decision maker, tribunal or court to ensure compatibility with EU law.

CPAG is keen to seek to challenge the amending regulations. Please contact testcases@cpag.org.uk if you are advising a claimant who has:

•been refused universal credit on grounds they do not have any (or any sufficient) right of residence; and

•had at the date of that decision, been granted pre-settled status by the Home Office.

Note that the arguments against the lawfulness of these regulations relate to EU nationals – for third-country national family members or nationals of Iceland, Liechtenstein, Norway or Switzerland, it is harder to rely on EU anti-nationality discrimination provisions.