“(c) a person having been granted limited leave to enter, or remain in, the United Kingdom under theImmigration Act 1971 by virtue of – (i) Appendix EU to the immigration rules made under section 3(2) of that Act; …”
“Within the scope of application of the Treaties, and without prejudice to any special provisions contained therein any discrimination on grounds of nationality shall be prohibited. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may adopt rules designed to prohibit such discrimination.”
“Equal Treatment 1. Subject to such specific provisions as are expressly provided for in the Treaty and secondary law, all Union citizens residing on the basis of this Directive in the territory of the host Member State shall enjoy equal treatment with nationals of that Member State within the scope of the Treaty. The benefit of this right shall be extended to family members who are not nationals of a Member State and who have the right of residence or permanent residence. 2. By way of derogation from paragraph 1, the host Member State shall not be obliged to confer entitlement to social assistance during the first three months of residence or, where appropriate the longer period provided for in Article 14(4)(b), nor shall it be obliged, prior to acquisition of the right of permanent residence, to grant maintenance aid for studies, including vocational training, consisting in student grants or student loans to persons other than workers, selfemployed persons, persons who retain such status and members of their families.”
“I do not accept the submission that the reasoning in Grzelczyk and Trojani is no longer good law. I accept that when the CJEU decides to reverse away from reasoning it has deployed, or conclusions reached in earlier cases it does not always say that is what it is doing. However, I do not consider this is one of those occasions. Occam’s razor applies. The more likely explanation of the lack of reference to claims based on Article 18 TFEU in either Dano’s case or Alimanovic’s case is that neither case was argued on the basis that either claimant had a right of residence other than a right arising under the Citizen’s Rights Directive (or more specifically, the German Law on Freedom of Movement which implemented that Directive).”
“Turning to the present case, the pre-settled status available under the provisions of Appendix EU is a right of residence that exists apart from anything available under the Citizens’ Rights Directive (as transposed into English law by the EEA Regulations). It has a distinct legal basis (rules made under theImmigration Act 1971 ), and for that matter also, is apt to cover a wider class of persons than the “extended right of residence” available under regulation 14 of the EEA Regulations because of the scope of the definition of “relevant EEA citizen” in Appendix EU when set against the notion of “qualified person”, defined in regulation 6 and then applied in regulation 14 of the EEA Regulations.”
“60. It should, however, be pointed out that, in a case such as the present, it is not necessary to examine whether the person concerned can rely on Article 8a of the Treaty in order to obtain recognition of a new right to reside in the territory of the Member State concerned, since it is common ground that she has already been authorised to reside there, although she has been refused issue of a residence permit. 61. As a national of a Member State lawfully residing in the territory of another Member State, the appellant in the main proceedings comes within the scope ratione personae of the provisions of the Treaty on European citizenship. 62. Article 8(2) of the Treaty attaches to the status of citizen of the Union the rights and duties laid down by the Treaty, including the right, laid down in Article 6 of the Treaty, not to suffer discrimination on grounds of nationality within the scope of application ratione materiae of the Treaty. 63. It follows that a citizen of the European Union, such as the appellant in the main proceedings, lawfully resident in the territory of the host Member State, can rely on Article 6 of the Treaty in all situations which fall within the scope ratione materiae of Community law, including the situation where that Member State delays or refuses to grant to that claimant a benefit that is provided to all persons lawfully resident in the territory of that State on the ground that the claimant is not in possession of a document which nationals of that same State are not required to have and the issue of which may be delayed or refused by the authorities of that State. 64. Since the unequal treatment in question thus comes within the scope of the Treaty, it cannot be considered to be justified: it is discrimination directly based on the appellant's nationality and, in any event, nothing to justify such unequal treatment has been put before the Court. 65. The answer to the fourth question must therefore be that Community law precludes a Member State from requiring nationals of other Member States authorised to reside in its territory to produce a formal residence permit issued by the national authorities in order to receive a child-raising allowance, whereas that Member State's own nationals are only required to be permanently or ordinarily resident in that Member State.”
“39. In the context of the present case, it should be examined more particularly whether, despite the conclusion in para. [36] above, a citizen of the Union in a situation such as that of the claimant in the main proceedings may rely on Art.12 EC, under which, within the scope of application of the Treaty and without prejudice to any special provisions contained therein, all discrimination on grounds of nationality is prohibited. 40. In the present case, it must be stated that, while the Member States may make residence of a citizen of the Union who is not economically active, conditional on his having sufficient resources, that does not mean that such a person cannot, during his lawful residence in the host Member State, benefit from the fundamental principle of equal treatment as laid down in Art.12 EC. 41. In that connection three points should be made. 42. First, as the Court has held, a social assistance benefit such as the minimex falls within the scope of the Treaty. 43. Secondly, with regard to such benefits, a citizen of the Union who is not economically active may rely on Art.12 EC where he has been lawfully resident in the host Member State for a certain time or possesses a residence permit. 44. Thirdly, national legislation such as that at issue in the main proceedings, in so far as it does not grant the social assistance benefit to citizens of the European Union, non-nationals of the Member State, who reside there lawfully even though they satisfy the conditions required of nationals of that Member State, constitutes discrimination on grounds of nationality prohibited by Art.12 EC.”
“Consequently, the answer to the second question must be that a citizen of the Union who does not enjoy a right of residence in the host Member State under Arts 39 EC, 43 EC or 49 EC may, simply as a citizen of the Union, enjoy a right of residence there by direct application of Art.18(1) EC. The exercise of that right is subject to the limitations and conditions referred to in that provision, but the competent authorities must ensure that those limitations and conditions are applied in compliance with the general principles of Community law, in particular the principle of proportionality. However, once it is ascertained that a person in a situation such as that of the claimant in the main proceedings is in possession of a residence permit, he may rely on Art.12 EC in order to be granted a social assistance benefit such as the minimex.”
“56. By its second and third questions, which it is appropriate to examine together, the referring court asks, in essence, whether article 18FEU, article 20(2)FEU, article 24(2) of Directive 2004/38 and article 4 of Regulation No 883/2004 must be interpreted as precluding legislation of a member state under which nationals of other member states who are not economically active are excluded, in full or in part, from entitlement to certain special non-contributory cash benefits within the meaning of Regulation No 883/2004 although those benefits are granted to nationals of the member state concerned who are in the same situation.”
“61. Thus, the principle of non-discrimination, laid down generally in article 18FEU, is given more specific expression in article 24 of Directive 2004/38 in relation to Union citizens who, like the applicants in the main proceedings, exercise their right to move and reside within the territory of the member states. That principle is also given more specific expression in article 4 of Regulation No 883/2004 in relation to Union citizens, such as the applicants in the main proceedings, who invoke in the host member state the benefits referred to in article 70(2) of the Regulation. 62. Accordingly, the court should interpret article 24 of Directive 2004/38 and article 4 of Regulation No 883/2004. Whether the single sentence of para. 62 contains a main verb or not in this English version is perhaps moot. The German version is “Daher sind Art. 24 der Richtlinie 2004/38 und Art. 4 der Verordnung Nr. 883/2004 auszulegen“. Possibly the sentence might be read as: “Accordingly, the court should [in the sense of “has to”] interpret [i.e. consider/apply] article 24 of Directive 2004/38 and article 4 of Regulation 883/2004”
“64. That having been said, it must be pointed out that, whilst article 24(1) of Directive 2004/38 and article 4 of Regulation No 883/2004 reiterate the prohibition of discrimination on grounds of nationality, article 24(2) of that Directive contains a derogation from the principle of non-discrimination. 65. Under article 24(2) of Directive 2004/38, the host member state is not obliged to confer entitlement to social assistance during the first three months of residence or, where appropriate, the period of seeking employment, referred to in article 14(4)(b) of the Directive, that extends beyond that first period, nor is it obliged, prior to acquisition of the right of permanent residence, to grant maintenance aid for studies to persons other than workers, self-employed persons, persons who retain such status and members of their families. 66. It is apparent from the documents before the court that Ms Dano has been residing in Germany for more than three months, that she is not seeking employment and that she did not enter Germany in order to work. She therefore does not fall within the scope ratione personae of article 24(2) of Directive 2004/38. 67. In those circumstances, it must be established whether article 24(1) of Directive 2004/38 and article 4 of Regulation No 883/2004 preclude refusal to grant social benefits in a situation such as that at issue in the main proceedings. 68. Article 24(1) of Directive 2004/38 provides that all Union citizens residing on the basis of the Directive in the territory of the host member state are to enjoy equal treatment with the nationals of that member state within the scope of the Treaty. 69. It follows that, so far as concerns access to social benefits, such as those at issue in the main proceedings, a Union citizen can claim equal treatment with nationals of the host member state only if his residence in the territory of the host member state complies with the conditions of Directive 2004/38.”
“44. I accept Mr Sales’s proposition that the European cases show that, in this area, the scope of application of the Treaty, for the purposes of article 12EC, includes both cases where a right of residence arises directly under the Treaty and those where it arises separately under the law of the member state. It does not extend to cases where no right of residence exists under either the Treaty or the relevant domestic law.” (Emphasis added)
“105. … The SSWP understandably places weight on the observation of Advocate General Geelhoed, at para 70 (opinion) of the Trojani case: “The basic principle of Community law is that persons who depend upon social assistance will be taken care of in their own member state”
“8. Furthermore, it is worth noting that the Respondent’s submissions before the Supreme Court in Patmalniece flatly contradict what she is now arguing. In her written case in Patmalniece, she submitted that: “60. The ECJ [in Trojani] agreed that the claimant had no EU law right of residence, on account of his lack of resources and limitations and conditions which attached to that EU law right. It thereby endorsed the conclusions which the Advocate General had expressed regarding the EU law obligations of Belgium to provide social assistance to Mr Trojani. However, it attached importance to the Belgiandomestic law right of residence which had in the meantimebeen granted to the claimant, by which Belgium hadundertaken obligations to Mr Trojani without being requiredto do so by EU law. This brought him within the scope ofEU law and enabled to him to complain under Article 12 ECabout the conditions for grant of the minimex which weredirectly discriminatory on grounds of nationality. … “60. The ECJ [in Trojani] agreed that the claimant had no EU law right of residence, on account of his lack of resources and limitations and conditions which attached to that EU law right. It thereby endorsed the conclusions which the Advocate General had expressed regarding the EU law obligations of Belgium to provide social assistance to Mr Trojani. However, it attached importance to the Belgiandomestic law right of residence which had in the meantimebeen granted to the claimant, by which Belgium hadundertaken obligations to Mr Trojani without being requiredto do so by EU law. This brought him within the scope ofEU law and enabled to him to complain under Article 12 ECabout the conditions for grant of the minimex which weredirectly discriminatory on grounds of nationality. … 62. In other words, the ECJ considered that where a person had no right to reside under EU law or national law, he would not be entitled to claim entitlement to the minimex. But where the EU national had acquired a right of residence under domestic law, then he was entitled to be assimilated tothe position of a national in the host Member State and couldrely on the prohibition on discrimination on grounds ofnationality in Article 12 EC Treaty. That emerges from §46 of the judgment of the ECJ and the last sentence in particular. The judgment is – correctly in the Respondent’s submission – analysed by the Court of Appeal in Abdirahman v SSWP for Work and Pensions[2008] 1 WLR 254 , at §32(iv) and Kaczmarek v SSWP for Work and Pensions[2008] EWCA Civ 1310 , §§2 and 16.” (Emphasis as in the Intervener’s skeleton argument).
“The children of a national of a Member State who is or has been employed in the territory of another Member State shall be admitted to that State’s general educational, apprenticeship and vocational training courses under the same conditions as the nationals of that State, if such children are residing in its territory. Member States shall encourage all efforts to enable such children to attend these courses under the best possible conditions.”
“80. Finally, as I have taken the view that the questions raised by the referring court may be resolved by interpreting Regulation No 492/2011, which contains a precise breakdown of the principle of nondiscrimination [sic], which is enshrined as a general principle in Article 18 TFEU, I do not consider it necessary to carry out an independent analysis of the latter provision.”
“What is more, the national court did not refer any questions which relate solely to Article 18 TFEU. Such an analysis would be necessary only if the Court were to take the view that JD does not fall within the scope of Article 24 of Directive 2004/38, cannot benefit from the principle of equal treatment under Article 7(2) of Regulation No 492/2011 because he does not have the status of worker and does not enjoy direct or indirect protection against discrimination when accessing basic social security benefits under Article 10 of Regulation No 492/2011. JD could then rely only on his status as an economically inactive Union citizen, who is legally resident in the host Member State and claiming entitlement to a basic social security benefit. Such a situation would then be similar to that in the case which gave rise to the judgment of7 September 2004 , Trojani (C-456/02, EU:C:2004:488).”
“58. The Court also held, in margin no. 57 and 58 of its ruling of15 September 2015 , Alimanovic (C-67/14, EU: C: 2015: 597), that the host Member State may rely on the derogation provided for in Article 24(2) of Directive 2004/38 in order to refuse to grant social assistance benefits, such as the maintenance benefits at issue in the main proceedings, to a Union citizen who has a right of residence solely on the basis of Article 14(4)(b) of that directive. 59. However, as is apparent from margin no. 40 of that ruling, the Court proceeded on the basis of the national court’s finding that the persons concerned only enjoyed a right of residence as job-seekers [sic] under Article 14(4)(b) of Directive 2004/38. It did not express a view on the situation in which, as in the present case, the persons concerned have a right of residence under Article 10 of Regulation No 492/2011. 60. In relation to such a situation, it should be noted, first, that the Court has already held on several occasions that Article 24(2) of Directive 2004/38, as an exception to the principle of equal treatment laid down in Article 18(1) TFEU, which is merely a specific expression of Article 24(1) of Directive 2004/38, must be interpreted strictly and in accordance with the provisions of the Treaty, including those relating to citizenship of the Union and the free movement of workers (ruling of21 February 2013 , N., C.-46/12, EU: C: 2013: 97, margin no. 33).”
“63. Secondly, it is clear from the regulatory context of this provision that, although Directive 2004/38 was adopted in order, as the Union legislature stated in recitals 3 and 4 in its preamble, to codify and revise “the existing [Union law] instruments”, which treat separately employed and selfemployed persons and students and other unemployed persons, with a view to simplifying and strengthening the right to move and reside freely for all Union citizens, and overcoming the previous sectoral and fragmented approaches. 64. However, this codification was not exhaustive. When Directive 2004/38 was adopted, Article 12 of Regulation No. 1612/68, the content of which was incorporated in Article 10 of Regulation No. 492/2011, was neither repealed nor amended. On the contrary, that directive was drafted in such a way as to comply with Article 12 of Regulation No 1612/68 and with the case law interpreting it. Consequently, Directive 2004/38 cannot, as such, call into question the autonomy of the laws based on Article 10 of Regulation No. 492/2011 or alter their scope (cf. in this sense ruling of23 February 2010 , Teixeira, C- 480/08, EU: C: 2010: 83, margin nos. 54 and 56 to 58).”
“68. The facts of the present case also differ from those of the case in which the ruling of11 November 2014 , Dano (C333/13, EU:C:2014:2358), was given. The latter concerned unemployed nationals of a Member State who had exercised their freedom of movement for the sole purpose of receiving social assistance in another Member State and who did not enjoy a right of residence in the host Member State under Directive 2004/38 or any other provision of Union law. In those circumstances, the Court held that it would be contrary to the purpose referred to in paragraph 66 of the present ruling to grant those persons entitlement to social assistance benefits under the same conditions as nationals. 69. Moreover, although persons such as JD and his daughters also fall within the scope of Article 24 of Directive 2004/38, including the exception in its paragraph 2, since they enjoy a right of residence under Article 14(4)(b) of that directive, they are not covered by that provision. However, that exception cannot be relied on against them, since they may also rely on an independent right of residence under Article 10 of Regulation No. 492/2011.”
“106. I take that to mean that, even where a national of another member state does not have the right to reside in the host country under European Union law, if he has the right to reside under the national law of the host country, he is also entitled to claim these benefits on the same terms as nationals of the host country. I do not find anything in the Trojani case to suggest that mere presence, without any right to reside in the host country, is sufficient. All the emphasis in the relevant paras 40—45 is on residence and not presence and moreover on formally approved residence. The court’s answer to the question posed concludes, at para 46: “However, once it is ascertained that a person in a situation such as that of the claimant in the main proceedings is in possession of a residence permit, he may rely on article 12EC in order to be granted a social assistance benefit such as the minimex.”
“29 …On its own terms, the restriction imposed by regulation 9(3)(c)(i) does not give rise to direct discrimination. The question must be whether the exclusion of pre-settled status gives rise to a situation in which all non-United Kingdom EU nationals are excluded from making claims for Universal Credit. A rule that pre-settled status is a right of residence that does not count for the purpose of establishing habitual residence does not have that effect: it excludes only some members of the class of non-United Kingdom EU nationals. Other members of the class are able to satisfy the conditions to obtain Universal Credit: see for example, the effect of regulation 9(4), and the limitation on the exclusion at regulation 9(3)(aa). As such, the discrimination that arises by reason of regulation 9(3)(c)(i) is indirect discrimination, which will be unlawful only if not objectively justified.”
“… [I]t cannot be a requirement of direct discrimination that all the people who share a particular protected characteristic must suffer the less favourable treatment complained of. It is not necessary, for example, that an employer always discriminates against women: it is enough to show that he did so in this case.”
“32. …For so long as the transition period continues and the EEA Regulations remain in force, the rights of residence available under the EEA Regulations will continue to exist side by side with those newly available under Appendix EU. Thus, for the purpose of the operation of regulation 9 of the Universal Credit Regulations the only persons advantaged by a grant of presettled status are those whose position under the EEA Regulations would not permit them to meet the requirements of regulation 9 as they stood prior to the amendment made by the 2019 Social Security Regulations. In this way the amendment made by those Regulations does, as the SSWP submits, maintain the status quo. More significantly for the purposes of the justification argument the restriction that applies to presettled status serves to maintain the prior rationale for the regulation 9 habitual residence requirement, as explained in Mr Malcolm’s witness statement. These reasons come to the same thing as the reasons accepted by the Supreme Court in Patmalniece as justifying the habitual residence test that is part of theState Pension Credit Regulations 2002 .”
“52. …[t]he SSWP’s purpose was to protect the resources of the United Kingdom against resort to benefit or social tourism by persons who are not economically or socially integrated with this country. This is not because of their nationality or because of where they have come from. It is because of the principle that only those who are economical or socially integrated with the host member state should have access to its social assistance system. The principle, which I take from the decision in the Trojani case, is that it is open to member states to say that economical or social integration is required. A person’s nationality does, of course, have a bearing on whether that test can be satisfied. But the justification itself is blind to the person’s nationality. The requirement that there must be a right to reside here applies to everyone, irrespective of their nationality.”
“a. In the Department for Exiting the European Union’s policy paper, “Citizens’ Rights – EU citizens in the UK and UK nationals in the EU” (December 2018), it was stated that: “4… We have been clear: EU citizens are our friends, our neighbours, our colleagues, and we want them to stay… … 7. We have always been clear that we highly value the contributions EU citizens make to the social, economic and cultural fabric of the UK and that we want them to stay in the UK… … UK nationals who went to the EU and EU citizens who came to the UK before the UK’s exit from the EU did so on the basis that they would be able to settle permanently and build a life here, or in the EU. That is why the UK has taken steps to remove any ambiguity and provide complete reassurance for EU citizens in the UK. We ask that the EU and Member States do the same for our nationals.”
“If conditions of entitlement to benefits within the scope of 1408/71 make an express and disadvantageous distinction between the nationals of one member state and the nationals of other member states, they are proscribed by Article 3. Discrimination based on nationality is forbidden.”
“I conclude that the conditions for entitlement to State Pension Credit are not overtly based upon the nationality of the claimant. The fact that nationals from other Member States may qualify, whether as workers, members of the same family, or for other reasons, precludes such a conclusion.”
“[40] In that regard, it must be noted that the principle of equal treatment, as laid down in Article 4 of Regulation No 883/2004, prohibits not only overt discrimination based on the nationality of the beneficiaries of social security schemes but also all covert forms of discrimination which, through the application of other distinguishing criteria, lead in fact to the same result (see, by analogy, judgment of22 June 2011 , Landtová, C-399/09, EU:C:2011:415, paragraph 44 and the case-law cited). [41] Accordingly, conditions imposed by national law must be regarded as indirectly discriminatory where, although applicable irrespective of nationality, they affect essentially migrant workers or the great majority of those affected are migrant workers, where they are applicable without distinction but can more easily be satisfied by national workers than by migrant workers, or where there is a risk that they may operate to the particular detriment of the latter (judgment of22 June 2011 , Landtová, C-399/09, EU:C:2011:415, paragraph 45 and the case-law cited).”
“But I think that Mr Lewis identified the issue in this case correctly when he said that the key question on the discrimination issue is whether the conditions for entitlement to state pension credit are formulated in terms of the nationality of the claimants, or in terms of criteria other than nationality.”
“The effect of regulation 2(2) of the 2002 Regulations must, however, be looked at in the context of section 1(2)(a) of the 2002 Act and regulation 2 as a whole”
“[40] It should be recalled that the principle of nondiscrimination prohibits not only direct discrimination on grounds of nationality but also all indirect forms of discrimination which, by the application of other criteria of differentiation, lead in fact to the same result (see, to that effect, Hartmann v Freistaat Bayern (C-212/05)[2007] ECR I-6303 , paragraph 29). [41] Unless objectively justified and proportionate to the aim pursued, a provision of national law must be regarded as indirectly discriminatory if it is intrinsically liable to affect nationals of other Member States more than nationals of the host State and there is a consequent risk that it will place the former at a particular disadvantage (see, to that effect, Case C195/98 Österreichischer Gewerkschaftsbund (Gewerkschaft öffentlicher Dienst) v Austria [2000] ECR 1-10497, paragraph 40, and Hartmann, paragraph 30).”