Gwladys Fertré v Vale of White Horse District Council

Holding pre-settled status under the EU Settlement Scheme does not, by itself, mean that an EU national resides in the UK on the basis of the Withdrawal Agreement. Article 13(1) preserves residence rights subject to the relevant TFEU and Citizens’ Rights Directive conditions. Article 13(4) permits a limited discretion to relax conditions in an individual’s favour; it does not authorise a wholesale extension to all pre-settled status holders. Article 18’s new residence status is an administrative gateway to rights otherwise accrued under Part Two, not an independent source of substantive residence rights. Article 23’s equal-treatment protection therefore does not extend to a person whose relevant status is domestic-law pre-settled status. The appeal was dismissed on that basis. The discrimination and justification issues were left unresolved.

The appellant, a French national, entered the UK during the transition period and was granted pre-settled status under the EU Settlement Scheme. She was economically inactive and later sought homelessness assistance under the Housing Act 1996. The local authority refused assistance on the basis that she was ineligible, and upheld that decision on statutory review.

Her appeal under section 204 of the Housing Act 1996 was transferred from the County Court to the High Court. Jay J dismissed it in [2024] EWHC 1754 (KB). The Court of Appeal considered whether pre-settled status gave her residence under the Withdrawal Agreement, whether any discrimination was direct or indirect, and whether any indirect discrimination could be justified. It decided the first issue against her and did not determine the remaining issues.

Appeal dismissed unanimously. Lady Justice Whipple gave the leading judgment, with Lord Justice Newey and Lord Justice Underhill agreeing.

1. The Withdrawal Agreement is an international treaty. It must be interpreted objectively, by reference to ordinary meaning, context, object and purpose, and relevant subsequent agreement or practice. The Court applied the approach explained in Revenue and Customs Commissioners v Anson [2015] UKSC 44.
2. Article 13(1) preserves residence rights subject to the specified TFEU and Citizens’ Rights Directive conditions. Article 13(4) permits a limited discretion to disapply conditions in an individual’s favour, particularly in borderline cases. It does not permit the United Kingdom unilaterally to expand Article 13(1) to every person within Article 10 or every holder of pre-settled status.
3. Article 18 is an administrative or constitutive residence-status mechanism. The status evidenced by pre-settled status is a gateway or badge of entitlement to rights otherwise accrued under Part Two. It does not itself confer substantive residence rights or elevate domestic-law rights into Withdrawal Agreement rights. The Court accepted the analysis in R (Independent Monitoring Authority) v Secretary of State for the Home Department [2022] EWHC 3274 (Admin).
4. Article 23 mirrors Article 24 of the Citizens’ Rights Directive. Equal treatment applies to persons residing on the basis of residence rights preserved by the Withdrawal Agreement, not merely to persons holding domestic-law pre-settled status. The appellant’s initial three-month residence right expired, and she did not satisfy the Article 7 conditions thereafter. She therefore had no relevant Withdrawal Agreement residence right when assistance was refused.
5. The appellant might have Charter protection, but that issue was not raised as a basis for the appeal. The Court rejected a reference to the CJEU because the answer was acte claire. Ground 2 was left unresolved, and Ground 3 was not argued because both depended on success on Ground 1.

• Court of Appeal (Civil Division): in [2025] EWCA Civ 1057, dismissed the appeal on Ground 1 and declined a reference to the CJEU. Grounds 2 and 3 were not determined.
• High Court, King’s Bench Division: Mr Justice Jay dismissed the transferred appeal in [2024] EWHC 1754 (KB).
• County Court: the appellant’s appeal under section 204 of the Housing Act 1996 was transferred to the High Court. No citation is stated in the judgment.