High Court rules on equal treatment provisions under the EU-UK Withdrawal Agreement

10/07/24

This week the High Court (Mr Justice Jay) handed down its decision in Fertré v Vale of White Horse District Council [2024] EWHC 1754 (KB). The Appellant, a French citizen residing in the UK with Pre-Settled Status, had been refused housing assistance by the Council pursuant to rules in domestic legislation.

The Appellant argued that the refusal of her application was contrary to the equal treatment protections in Article 23 of the EU-UK Withdrawal Agreement. Article 23(1) confers equal treatment protection to EU citizens who are residing in the UK “on the basis of” the Withdrawal Agreement. The Appellant argued that the UK’s grant of Pre-Settled Status, made pursuant to powers under Article 18(1) of the Withdrawal Agreement, was a “new residence status” created by the Withdrawal Agreement. On that reasoning, excluding the Appellant from housing assistance under the domestic legislation was discriminatory and incompatible with Article 23 of the Withdrawal Agreement.

The proper ambit of non-discrimination provisions for EU citizens in the UK after Brexit was left unanswered by the Fratila litigation in the Supreme Court and the CG litigation in the CJEU. In recognition of the public interest in the issue, the Court granted permission to four interveners: (1) the Secretary of State for Housing, (2) the3million, (3) the Independent Monitoring Authority (“IMA”), which is the monitoring body appointed under the Withdrawal Agreement, and (4) Shelter.

Mr Justice Jay heard from the parties and interveners on 11 and 12 June 2024. He ultimately dismissed the appeal and agreed with the submissions of the Secretary of State and the IMA as to the construction of the Withdrawal Agreement:

• The Court acknowledged that the interpretive question was not straightforward, and that the new residence status created by Article 18(1) of the Withdrawal Agreement was like a “quantum particle” in that it was very difficult to pin down: [74].  
• However, the proper interpretation of the Withdrawal Agreement in the light of earlier case law was that the grant of a new residence status under Article 18(1) was the “gateway” or “passport” to the inherently conditional residence rights provided by the Withdrawal Agreement: [72], [75].
• Article 23(1) was intended to protect those who reside on the basis of the Withdrawal Agreement, i.e. in compliance with its limitations and conditions: [76]. Accordingly, EU citizens with only Pre-Settled Status (and no other qualifying right of residence such as the rights of a worker) would not be entitled to avail of the protection under Article 23(1) of the Withdrawal Agreement.
• Even if the UK had granted Pre-Settled Status to a wider cohort than contemplated by the Withdrawal Agreement, that grant was under domestic law, and did not imply that the UK had waived the ongoing residence requirements in the Withdrawal Agreement: [88]-[90].

The judgment is here. The IMA’s written submissions are here.