Fratila and another v Secretary of State for Work and Pensions

The general prohibition of nationality discrimination in article 18 TFEU applies independently only where EU law does not provide a specific non-discrimination rule. For EU citizens exercising rights of movement and residence, article 24 of Parliament and Council Directive 2004/38/EC supplies that specific rule.

An EU citizen may claim equal treatment in access to social assistance only where the citizen’s residence complies with the conditions of that Directive. A right to reside granted solely under domestic law does not satisfy that requirement.

An appellate court should not permit an entirely new claim to be raised where its determination would require findings of fact which have not been made below.

The respondents were Romanian nationals whose applications for universal credit were refused. At the relevant times, their sole right to reside in the United Kingdom arose from pre-settled status granted under the EU Settlement Scheme. They sought judicial review, alleging that the exclusion of pre-settled status as a qualifying right of residence unlawfully discriminated on grounds of nationality.

Swift J dismissed the claim in [2020] EWHC 998 (Admin); [2020] PTSR 1424. The Court of Appeal allowed the respondents’ appeal by a majority in [2020] EWCA Civ 1741; [2021] PTSR 764.

Following the CJEU’s judgment in CG v Department for Communities in Northern Ireland, the central issue was whether a domestic right of residence alone enabled the respondents to invoke article 18 TFEU and claim equal treatment in respect of social assistance. The respondents also sought to introduce a new claim based on rights under the Charter of Fundamental Rights of the European Union.

1. Appeal allowed unanimously. Lord Lloyd-Jones delivered the judgment, with which Lord Reed, Lord Hodge, Lord Sales and Lord Hamblen agreed. The CJEU’s judgment in CG v Department for Communities in Northern Ireland (Case C-709/20) [2021] WLR 5919 definitively resolved the first issue in favour of the Secretary of State. The second issue, concerning the character and justification of the discrimination, therefore did not arise.

2. Article 18 TFEU applies independently only to situations governed by EU law for which the TFEU contains no specific non-discrimination rule. For an EU citizen who moves to or resides in another member state, the specific rule is article 24 of Parliament and Council Directive 2004/38/EC. Any claim of nationality discrimination by such a citizen must therefore be assessed under article 24 rather than through an independent application of article 18 TFEU.

3. An EU citizen can claim equal treatment in relation to social assistance only if the citizen’s residence complies with the conditions imposed by the Directive. It was common ground that the respondents did not reside in the United Kingdom in accordance with the Directive when they claimed universal credit. Their pre-settled status supplied only a domestic law right of residence. They could not therefore invoke the EU principle of non-discrimination to claim equal treatment in entitlement to universal credit.

4. The respondents could not introduce an entirely new claim based on articles 1, 7 and 24(2) of the Charter of Fundamental Rights of the European Union. That claim had not been advanced at any earlier stage and would require findings of fact which had not been made. Although the CJEU had identified the possible relevance of the Charter in CG, the circumstances addressed there were materially different. Applying the appellate caution described in Test Claimants in the FII Group Litigation v Revenue and Customs Comrs [2020] UKSC 47, the court declined to entertain the new case.

1. United Kingdom Supreme Court: The Secretary of State’s appeal was allowed unanimously in [2021] UKSC 53. The respondents could not rely on article 18 TFEU to claim equal treatment, and their new Charter claim was not entertained.
2. Court of Appeal: The respondents’ appeal was allowed by a majority in [2020] EWCA Civ 1741; [2021] PTSR 764. The court unanimously held that article 18 TFEU was available, but divided over whether the resulting discrimination could be justified.
3. High Court: Swift J dismissed the judicial review claim in [2020] EWHC 998 (Admin); [2020] PTSR 1424. He held that article 18 TFEU was available but that the relevant provisions caused justified indirect discrimination.