Court of Appeal hearing begins on equality of welfare access for EU citizens with pre-settled status
15 May 2025
Garden Court North’s Tom Royston (pictured, middle) is representing the3million at the hearing in the Court of Appeal, London. Credit: the3million.
Yesterday (14 May 2025), a three-day hearing began in the Court of Appeal, London, examining equal access to welfare between people with pre-settled status and British citizens.
The Appellant (‘Ms Fertre’) appeals from an order made by Jay J dated 8 July 2024 dismissing her appeal under section 204 Housing Act 1996. The Appellant is a French citizen who has been granted Pre-Settled Status (‘PSS’) under the EU Settlement Scheme.
A key issue in the hearing is whether Ms Fetre can rely on rights derived from the UK’s EU Withdrawal Agreement in order to make her automatically eligible for homelessness assistance under Part 7 of the Housing Act 1996. It depends on whether the Appellant was residing on the basis of the Withdrawal Agreement at the time she applied for housing assistance, given the new residence status. The judge held that she was not so residing and dismissed her appeal.
Tom Royston of Garden Court North and Charles Bishop of Landmark Chambers are instructed by Public Law Project to represent the3million, who are interveners in the case.
the3million seeks equal treatment for all EU citizens and family members
The position of the3million is that a Union citizen who has been granted a residence status like PSS under Art.18(1) of the Withdrawal Agreement, which has not been lawfully withdrawn, is by that fact alone ‘residing on the basis of’ the Withdrawal Act for the purposes of Art.23.
Therefore, Ms Fertre enjoys the right of equal treatment under Art.23. Ms Fertre’s right does not depend on meeting the conditions which used to be applicable under Art.24 of the Citizens’ Rights Directive 2004/38/EC.
T3M have argued that the UK is an outlier in the approach it has adopted when compared with other countries that have adopted a residence scheme under Art.18(1) WA. This undermines the Secretary of State’s suggestion that the UK’s scheme’s discriminatory effect is justified.
In light of the3million’s evidence about variation in approaches across Europe, the3million will ask the Court of Appeal to request the Court of Justice of the European Union (CJEU) to give a preliminary ruling about the point of law, pursuant to Art.158(1) Withdrawal Agreement.
the3million’s arguments
- Interpretation of the Withdrawal Agreement
The Withdrawal Agreement gives signatory states a choice about whether to require applications for a residence status under Art.18(1), and a choice about whether to make the grant and/or continuation of that status subject to various conditions; a person enjoys entitlement to equal treatment where they have been conferred with the status unconditionally.
- Withdrawal Agreement implementation in the UK
The UK has chosen to require an application for a residence status under Art.18(1), and has chosen not to make the grant and/or continuation of that status subject to any relevant conditions.
- Practice in other Withdrawal Agreement signatory state
International comparisons show the UK to be anomalous in refusing equal treatment to people with an Art.18(1) residence status.
- Need for the Court of Appeal to make a CJEU reference
The Court of Appeal should make a CJEU reference because the question of whether the UK is complying with its Withdrawal Agreement obligations does not have a clear answer, is determinative of the appeal, and is important to all WA signatory states and their citizens.
Proceedings are being livestreamed on the Court of Appeal’s YouTube channel between Wednesday 14 May and Friday 16 May.
Further details about the case can be found here, by searching Fertre (appellant) v Vale of White Horse District Council & and (respondents).
Additional media
The3million – Watch the hearing in the Court of Appeal tomorrow
Court of Appeal – Tom Royston’s submission on 14 May
This piece was written by Misha Nayak-Oliver, pupil at Garden Court North Chambers.
For further information, please contact Alex Blair, Communications Manager at Garden Court North Chambers: ablair@gcnchambers.co.uk
