Court of Appeal rules on eligibility for housing assistance of economically inactive EU nationals with pre-settled status

In a case that began in 2022, Gwladys Fertré argued Vale of White Horse District Council unlawfully discriminated against her when her claim to homelessness support under the Housing Act 1996 was refused on grounds that she was a person from abroad who was not entitled to such state support.

Catherine Rowlands of Cornerstone Barristers, who acted for the council, said the judgment by Lady Justice Whipple confirmed “the understood position under domestic law which is reflected in the Homelessness Code of Guidance”. 

Ms Fertré argued that the UK-EU Withdrawal Agreement had created a new right of residence guaranteeing her equal treatment with British citizens and so she was entitled to housing assistance.  

She relied primarily on Article 13(4) of the Withdrawal Agreement, which states: “There shall be no discretion in applying the limitations and conditions provided for in this title, other than in favour of the person concerned.”   

Ms Fertré argued that pre-settled status was the exercise of a discretion in her favour, and she was therefore residing in the UK on the basis of the Withdrawal Agreement.   

Whipple LJ dismissed this saying Ms Fertré’s case amounted to an argument that the Withdrawal Agreement, despite being silent on this point, created a right to assistance that did not exist before the agreement.

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Ms Rowlands said: “This appeal is academic for the appellant, in any event, as she is no longer homeless; by November she will have settled status and if she becomes homeless again, she will be entitled to assistance on the same basis as a UK national.” 

Whipple LJ said in her judgment that Mr Justice Jay had dismissed Ms Fertré’s case and she now argued that he had been wrong in concluding that she was not residing in the UK on the basis of the Withdrawal Agreement and in concluding that the discrimination she suffered was indirect as opposed to direct.

The Secretary of State for Housing Communities and Local Government then intervened in the case, arguing Jay J was right to dismiss the appeal and there was no merit to her case.

Whipple LJ said: “I am persuaded, by a healthy margin, that the Secretary of State offers the better arguments in response to Ground 1.

"The Withdrawal Agreement was intended only to preserve existing EU law rights. That the UK granted pre-settled status to EU nationals, regardless of whether they were complying with the limitations and conditions of the Citizens' Rights Directive, was more generous than required by EU law; to the extent that it resulted in rights and permissions to remain in the UK which existed independently of rights and permission in EU law, those were rights and permissions in domestic law only.

“The appellant has no EU law right (as preserved by the Withdrawal Agreement) to reside in the UK. She may yet come into an EU law right, depending on her personal circumstances. As matters stand, her right of residence is not protected by the Withdrawal Agreement.”

Lord Justice Newey and Lord Justice Underhill both agreed.

Mark Smulian