Earlier this month, judgment was handed down in the High Court case of Fertre v Vale of White Horse District Council. 

The council had decided that Ms Fertre was not eligible for homelessness assistance based on her pre-settled status alone. The judge has decided that the council was correct in this decision. The judgment says a grant of status under the EU Settlement Scheme is a ‘gateway status’ giving the holder conditional rights only. Whether someone enjoys these conditional rights, such as the right to equal treatment in Article 23 of the Withdrawal Agreement, would depend on whether they are satisfying further conditions. 

This is a different conclusion to the one reached by the Central London County Court in Hynek v Islington, which we also intervened in. That judgment was handed down at the end of May. 

the3million is disappointed with the High Court judgment, but we were glad to have been able to support the Appellant’s arguments. The judge stated that he was grateful for all submissions, and that the intervenors’ submissions were helpful and had been “studied with considerable care”.

While the judge felt able to come to a clear conclusion on the outcome, he did acknowledge the complexity of the appeal, and accepted that the issues raised were not entirely straightforward. 

The full judgment can be accessed here.

The Guardian has recently written about this important issue, covering the three cases that we have intervened in. The article highlights the impacts people are suffering, and the lack of certainty around rights that will continue far into the future. Professor Charlotte O’Brien says:

“It could mean that years and decades from now, people with settled status under the EUSS [EU settlement scheme] may find they have no proof that they ever had withdrawal agreement-based rights.”

Ms Fertre has applied for permission to appeal. If this is granted, the3million is very hopeful that it will be able to continue to be involved at the Court of Appeal stage. We must continue the fight to establish the crucial principle that status under the EU Settlement Scheme is a complete and straightforward conferral of all rights under the Withdrawal Agreement, without further conditions needing to be satisfied.

We need your donations to be able to do so. Please give generously, so that our extremely talented legal team can continue this intervention at the Court of Appeal, and so that we can continue to explore other interventions in support of securing EU citizens’ Withdrawal Agreement rights. 

Can people with pre-settled status rely on their status to get homelessness assistance?  

This week we were in the High Court for two full days, as an intervener in the case of Fertre v Vale of White Horse District Council, an appeal against a decision by the local authority that Ms Fertre was not eligible for homelessness assistance based on her pre-settled status alone.

We want status under the EU Settlement Scheme to be recognised as proof of rights under the Withdrawal Agreement, which includes the right to equal treatment. We argue this would mean that people with pre-settled status can access benefits and homelessness assistance on exactly the same basis as British citizens, without the extra burdensome and complicated hurdle of a ‘right to reside’ test.

The High Court appeal this week is very important, because it is the first time a judge of the High Court has been asked to consider whether pre-settled status holders enjoy equal treatment rights under the Withdrawal Agreement, and should therefore be eligible for homelessness assistance on the same basis as British citizens. At the moment, the legislation excludes them from accessing support unless they pass the ‘right to reside’ test.  

Because of the significance of this case, there were other interveners alongside us: 

Those arguing that pre-settled status should not mean automatic rights to equal treatment:

• the Secretary of State for the Department of Levelling Up, Housing and Communities

• the Independent Monitoring Authority.

Those arguing that pre-settled status is sufficient to access equal treatment rights under the Withdrawal Agreement:

• the3million 

• Shelter

We will of course let you know about the outcome as soon as the judgment is handed down.

Our intervention in Hynek v Islington has helped in getting a positive result for Mr Hynek in his case against Islington Council.

The judge has ruled that people with pre-settled status within the personal scope of the Withdrawal Agreement are entitled to equal treatment rights under it. This means that Mr Hynek is eligible for the homelessness assistance that he applied for in 2023. The full judgment can be found here.

Mr Hynek, a Slovakian citizen, was granted pre-settled status in 2019. He was working as a software engineer until May 2020, and then struggled to find another job during the Covid pandemic. In 2021 he applied for homelessness assistance, as he found himself between sofa surfing and having to sleep outside at times. He was refused because Islington Council said he did not pass the ‘right to reside test’, and that his pre-settled status alone was not enough for him to be eligible for homelessness assistance.

The judge however has agreed with our fundamental argument that people who get pre-settled status under the EU Settlement Scheme are conferred with rights under the Withdrawal Agreement if they are within its personal scope.

The UK chose to implement a Withdrawal Agreement scheme that compels people to make an application for status, and the logical consequence of that is that they then acquire all the rights under the Withdrawal Agreement.

The judge also agreed with us that pre-settled status holders enjoy the rights and protections set out in the Withdrawal Agreement, including, importantly, equal treatment rights. This means being able to apply for homelessness assistance on the same basis as a British citizen, without the extra hurdle of a complex additional ‘right to reside’ test. We believe the same interpretation should now apply for welfare benefits, including Universal Credit and housing benefit.

This County Court judgment is not binding, however, and this is why we will continue to make interventions on this very important legal point until the legal position is confirmed. 

We are pleased to update that the first housing case we intervened in has been successful. C, who is a family member of an EU citizen, has won the case, with the court finding her eligible for housing assistance. 

Our intervention was appreciated by the judge, who agreed with our argument that the rights of family members who were dependants of EU citizens before the end of the transition period continue after they are no longer dependent on their EU sponsor.  

Please support us on our journey to make really important interventions in legal cases that affect marginalised and vulnerable EU citizens and family members. We want to carry on doing this until the Government changes the law. But we can only do this if we continue raising funds to be able to pay our legal team.

Background to the case

In February, we intervened in a case where Oldham Council formed the view that it must deny homelessness assistance to C, due to the way they interpret the law for those with pre-settled status.

We were granted permission to intervene in this case (kindly funded by ILPA’s Strategic Legal Fund), to set out our view that anyone with status under the EU Settlement Scheme is entitled to equal treatment rights. This includes therefore that anyone with pre-settled status should be considered for welfare and homelessness assistance on the same basis as a British citizen. Our arguments are set out in this legal note.

During the course of the intervention, the3million’s legal team brought an additional point to the court’s attention that had not been considered by the other parties. This was related to Article 17(2) of the Withdrawal Agreement, which says that rights of family members who were dependants of EU citizens before the end of the transition period continue even after they are no longer dependent on their EU sponsor.

The judge agreed that Oldham Council had made a mistake when assessing whether C was dependent on her EU sponsors at the point in time it was carrying out the review of her homelessness application in 2022, as under Article 17(2), she continued to enjoy rights under the Withdrawal Agreement, even if she was no longer dependent. 

We are really pleased that the judge agreed that C should have equal treatment rights on the basis of this Article 17(2) argument. Our intervention means that C should now be treated as being eligible for housing assistance.

The full judgement can be found here. The crucial value of our intervention is recognised by the judge where he states “The final issue [that of the effect of Article 17(2)], which is of some real importance, arose late. It was first raised by T3M the day before the hearing through the provision of a short note.”

The judge did not agree with our broader argument that everyone with pre-settled status has equal treatment rights. However, his comments on this are not binding on other judges and did not ultimately decide the appeal. This is why we continue to make interventions on this very important legal point and we await the outcomes of those cases.

The judgment is also important because the judge also found that C, as a pre-settled status holder, was entitled to rely on important rights set out in the Charter of Fundamental Rights of the European Union, and that the local authority was under an obligation to consider her Charter rights. It had been established in AT v Secretary of State for Work and Pensions [2023] EWCA Civ 1307 that DWP had to consider these obligations when assessing applications for Universal Credit. The judge agreed that this duty also applied in the context of applications for homelessness assistance. 

Other cases

As we set out in our previous update, these arguments were also heard in the case of J v Islington on 23 April, on which we are waiting for the judgment. 

Since pre-settled status is quite literally the proof that the Home Office has given someone the right to reside in the UK, it is unacceptable that when it comes to receiving help from the state, this status is considered not to be a right to reside. It’s nonsensical.

The very fact that a judge is required to work out whether or not someone with pre-settled status is entitled to help from the state proves how complex the eligibility criteria are. This is a waste of time for councils, for the judiciary, and above all for the vulnerable individuals at the heart of each case who are left destitute for months or years on end as the legal process drags on. 

As very similar cases continue to come up, of different councils all over the country refusing homeless assistance to people with pre-settled status, we will continue to seek to intervene.

In some local authorities in the UK, EU citizens now make up 60-70% of people with no recourse to public funds appealing to their local council for help.

Please support us to fund these interventions 

We can only do this with your help, so please consider whether you can make a donation no matter how small. Everything adds up and together we can do this. 

Together we will build our intervention fighting fund, to put this strategic litigation on a sustainable footing, and ensure that our dedicated legal teams can be paid.

Your donations will help us be agile and to intervene quickly in cases so that we can try to influence the legal precedent being set, and to put an end to the restrictions of rights of marginalised EU citizens and their family members.

Today we can announce that we have been granted permission to intervene in a third important legal case, that of Ms Fertre v Vale of White Horse District Council. Ms Fertre was denied homeless assistance and a place on the housing register in 2021. 

The case will be heard in the High Court on 11th and 12th June.

The judge who granted us permission stated that he was “in no doubt that, given the nature and importance of the issue, efficient written and brief oral intervention by each of the three interveners from their different areas of expertise and experience will be of considerable assistance to the Court”.

This case was transferred from the County Court to the High Court in recognition of the importance of the questions it throws up on rights under the Withdrawal Agreement.

The local authority wanted the case to be struck out, and it also opposed our application to intervene. There was therefore a court hearing last week, where a judge had to decide on these matters. The judgment of that hearing can be read here.

What did the judgment of that hearing say?

There will be three intervenors in the case:

• the3million

• The Secretary of State for Levelling Up, Housing & Communities (DLUHC)

• The Independent Monitoring Authority (IMA)

The judge did not agree that the appeal should be struck out, as he accepted there was a real benefit to Ms Fertre in her appeal continuing, even if she is not currently homelessness. His judgment makes several very important findings:

• Even if a person with pre-settled status is not currently homeless, it can still make a big difference if the judge ultimately finds on appeal that the council was wrong to refuse them homelessness assistance in the past on the basis that they were not eligible.
  
  Firstly, if someone is made homeless again in the future, they will find it easier to prove their eligibility for homelessness assistance if they have a judgment confirming they are eligible.
  
  Secondly, if they had applied to go on the housing register, such a finding would mean that their place on the housing register could be backdated to the original date. This can make a huge difference since there are long waiting lists for social housing, and some pre-settled status holders will have (in our view incorrectly) had their applications refused on the basis that they are not eligible.
  
  

• The judge considers that the case raises issues of "considerable public importance". He also recognises that the current system requires local authorities and courts to keep making and reviewing decisions on very similar cases, with many going to Court, and that the financial burden caused by this uncertainty “is being multiplied throughout England and Wales” and “falling on the public purse”.

The UK has legislated that people with pre-settled status do not have a ‘right to reside’ for welfare and benefits purposes. But since pre-settled status is quite literally the proof that the Home Office has given someone the right to reside in the UK, it is nonsensical that when it comes to receiving help from the state, this status is considered not to be a right to reside. 

The3million’s view is that this approach is a fundamental breach of the Withdrawal Agreement, and that everyone with status under the EU Settlement Scheme is entitled to equal treatment rights. This includes therefore that anyone with pre-settled status should be considered for welfare and homelessness assistance on the same basis as a British citizen. Our arguments are set out in this legal note.

In some local authorities in the UK, EU citizens now make up 60-70% of people with no recourse to public funds appealing to their local council for help.

Please continue to support us to fund these interventions by donating and sharing our crowdfunder!

Two weeks ago we were able to tell you that we had been granted permission to intervene in a County Court case called J v London Borough of Islington. That case is being heard today, and we wanted to explain a little more about how our intervention fits into this case.

What is the case about?

This case is being brought by J, a Slovakian citizen who was denied homelessness assistance by the London Borough of Islington. J has had pre-settled status since December 2019, and worked as a software engineer until the Covid pandemic. The extent to which he was able to work was limited by his health problems, with his situation becoming increasingly precarious. In the end he applied for homelessness assistance. However, Islington Council formed the view that it had to refuse him this help, because of the way they interpret the legislation for those with pre-settled status.

On what grounds is the refusal for homelessness assistance being challenged?

With legal challenges, it is possible to argue more than one ground. J’s lawyers are challenging this refusal on three grounds. 

The first is that anyone with pre-settled status under the EU Settlement Scheme has the right to equal treatment. This means that people with pre-settled status should be treated in the same way as British citizens, including when it comes to welfare benefits and homelessness assistance.

Current legislation says that someone with pre-settled status needs to satisfy an additional hurdle, the so-called ‘Right to Reside’ test. This is a hurdle that many vulnerable and marginalised people struggle to satisfy, or to evidence even if they do satisfy it. J’s lawyers will argue that it is wrong to subject pre-settled status holders to that additional test.

The second ground is related to the application of the Charter of Fundamental Rights, which has been the subject of a high profile court case AT, see here for more information on that case.

And the final ground is to argue that in any case, even if the first two grounds fail, J should be eligible because he is still self-employed and thereby satisfies that extra ‘Right to Reside’ test.

What is the3million’s intervention about?

Our intervention is entirely focused on the first of the three legal grounds described above. 

The Withdrawal Agreement promises equal treatment rights - which means anyone with status under the EU Settlement Scheme should be considered for welfare and homelessness assistance on the same basis as a British citizen. 

There are always eligibility criteria around welfare, but the point is that if a British citizen in the exact same situation would be eligible for help from the state, then so should a person with pre-settled status. 

We think the Government legislation which imposes the extra ‘right to reside’ hurdle is unlawful.

Since pre-settled status is quite literally the proof that the Home Office has given someone the right to reside in the UK, it is unacceptable that when it comes to receiving help from the state, this status is considered not to be a right to reside in itself. It’s nonsensical.

Our intervention will be based on the arguments we ran in a previous intervention (see our legal note). 

What type of intervention - written or oral?

When intervening in a case, it is possible to do so in one of two ways.

Our lawyers can request permission to send written submissions to the Court, in which we set out all our arguments. 

Alternatively, it is possible to ask for permission to make oral submissions. This involves our barrister sending written arguments to the Court in advance of the hearing, and on the day of the hearing also being  allocated time to fully set out the reasoning behind those arguments, and to answer any questions from the judge/s.

The decision on whether to make written or oral submissions depends on various factors, one of which is how much time there is available in the hearing. As a responsible intervener, we generally do not want to disrupt the timetable that was set before we become involved in the case.

For this case today, we have made written submissions. This means our barrister won’t be speaking at the court hearing. However, a representative from the3million will be attending the hearing, as it is very important not only to hear all the arguments from the appellant, the respondent and any other interveners, but also to hear the questions that the judge has for the various legal teams. The judge/s will have already read the legal arguments set out in our written intervention and will be required to take note of them when reaching a decision on the case.

When will we know the outcome?

In general, the judge does not hand down judgment on the day of the hearing. It can take some weeks, or sometimes longer, to receive the court’s decision.

We will of course continue to keep you updated, and in the meantime we hope you will continue to support us by donating and sharing our crowdfunder!

Since the launch of our crowdfunder three weeks ago, we have been granted permission to intervene in one legal case, and applied for permission to intervene in another. 

Permission granted to intervene in County Court case: J v London Borough of Islington 

Last week, we were granted permission by the court to intervene in a case brought by J, a Slovakian citizen who was denied homelessness assistance.

J was granted pre-settled status in December 2019. Although he worked for a time as a software developer and web designer, he had health problems and struggled during the Covid years. He applied for homelessness assistance, but Islington Council formed the view that it had to turn him down. He has been sofa-surfing with kind friends ever since.

Islington Council thinks it has to apply the ‘Right to Reside’ test, an additional hurdle put in front of people with pre-settled status which many vulnerable and marginalised people struggle to satisfy.

The Withdrawal Agreement promises equal treatment rights - which means anyone with status under the EU Settlement Scheme should be considered for welfare and homelessness assistance on the same basis as a British citizen. We therefore think the Government legislation which imposes this extra ‘right to reside’ hurdle is unlawful.

Since pre-settled status is quite literally the proof that the Home Office has given someone the right to reside in the UK, it is unacceptable that when it comes to receiving help from the state, this status is considered not to be a right to reside. It’s nonsensical.

We are delighted that we have been granted permission to intervene. Our intervention will be based on the arguments we ran in a previous intervention (see our legal note). 

Applied for permission to intervene in High Court case: EU citizen vs a Local Authority

Earlier this week, we applied for permission to intervene in another similar case, where an EU citizen with pre-settled status was denied homelessness assistance because the Local Authority thinks it must apply the ‘Right to Reside’ test which does not accept pre-settled status as a ‘right to reside’.

This case has been transferred from the County Court to the High Court, in recognition of the importance of the questions it throws up on rights under the Withdrawal Agreement.

Please support us by donating and sharing this fundraiser far and wide

Your donations will help us be agile and to intervene quickly in cases so that we can try to influence the legal precedent being set, and to put an end to the restrictions of rights of marginalised EU citizens and their family members.