Mr Justice Swift said that although the Social Security (Income-related Benefits) (Updating & Amendment) (EU Exit) Regulations of 2019 are not directly discriminatory on the grounds of nationality, they do amount to indirect discrimination. He held that this discrimination could be justified, and was therefore not unlawful.
The applications are EU citizens living in the UK who were refused Universal Credit. One partner obtained full settled status and was eligible to claim benefits, but the case proceeded with the second person like the claimant.
He suffers from health problems and came to the UK to be cared for by his friend. Several months after arriving here, he applied for pre-settled status – which was granted. He applied for Universal Credit but his application was refused. The grounds were that he did not have a right to reside in the UK so could not meet the “habitual residence” requirements.
Habitual residence and right to reside
People are only entitled to claim Universal Credit if they are “in Great Britain”. The Universal Credit Regulations 2013 specify who can and can’t be considered to be in Great Britain. A person must be “habitually resident” here. A condition of being habitually resident is the “right to reside” here. There are some categories of immigration status that will allow the holder to skip this test.
Discrimination
The claimants said that excluding pre-settled status from the right to reside test was discrimination against their nationality. The judge found there was “no coherent basis” for direct discrimination. But because the regulations are more likely to affect non-British EU nationals, he held that this was indirect discrimination.
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