“No Automatic Equality Rights for Pre-Settled Status Holders”
A Detailed Commentary on Fertre v Vale of White Horse District Council ([2025] EWCA Civ 1057)

1. Introduction

The Court of Appeal (Civil Division) has delivered an important decision clarifying the legal position of European Union (“EU”) citizens living in the United Kingdom (“UK”) with pre-settled status (PSS) under the EU Settlement Scheme (“EUSS”). The appellant, Ms Fertre, a French national who entered the UK in November 2020, challenged the refusal of homelessness assistance by Vale of White Horse District Council. She argued that the refusal amounted to unlawful discrimination contrary to Article 23 of the Withdrawal Agreement (“WA”) because, with PSS, she was allegedly residing “on the basis of” that Agreement and thus entitled to the same treatment as UK nationals.

Whipple LJ, with whom Newey LJ and Underhill LJ agreed, dismissed the appeal. The Court held that:

• PSS is a creature of domestic immigration law, not an EU-law or Withdrawal Agreement right of residence.
• Consequently, a non-economically-active PSS holder such as the appellant is not “residing on the basis of this Agreement” for the purposes of Article 23 WA and cannot invoke its equal-treatment guarantee.
• The equal-treatment clause in Article 23 WA mirrors Article 24 of the Citizens’ Rights Directive 2004/38/EC (“CRD”) and affords protection only to EU citizens whose residence rights satisfy the CRD conditions (or comparable WA provisions) – not to all PSS holders.

2. Summary of the Judgment

Ground 1 – the central dispute – concerned whether Ms Fertre possessed a WA residence right. The Court concluded she did not. Although PSS granted her five-year leave to remain under UK law, it did not convert into an international-law right under the WA. Articles 13, 18 and 23 WA were analysed in depth:

• Article 13 (Residence Rights) preserves only CRD-compliant residence rights. Article 13(4) affords a narrow administrative discretion, not a power to widen the cohort wholesale.
• Article 18 (Issuance of Residence Documents) establishes a “gateway” status enabling persons who already have WA rights to evidence them; it does not itself create such rights.
• Article 23 (Equal Treatment) mirrors Article 24 CRD and therefore protects only those whose residence is “on the basis” of CRD/WA rights, not purely domestic leave such as PSS.

Because Ms Fertre had never been economically active and fell outside the three-month initial residence window under Article 6 CRD, she no longer met CRD conditions. Her housing-assistance ineligibility therefore engaged no WA right. Grounds 2 and 3 (discrimination issues) fell away, and no reference to the Court of Justice of the European Union (“CJEU”) was necessary – the interpretation was acte clair.

3. Analysis

3.1 Precedents Cited & Their Influence

1. CG v DfC (NI) (C-709/20)
   Confirmed that PSS is a domestic immigration status and not “on the basis of” the CRD. The Court of Appeal relied heavily on this distinction.
2. Dano (C-333/13) & Alimanovic (C-67/14)
   Set out that equal treatment under Article 24 CRD applies only where the individual’s residence meets CRD conditions.
3. Ziolkowski (Joined C-424/10 & C-425/10)
   Drew the bright line between residence based on national law and residence grounded in EU law.
4. IMA v SSHD [2022] EWHC 3274
   Explained the constitutive nature of the EUSS under Article 18 WA and was treated by Whipple LJ as subsequent agreement on WA interpretation.
5. Secretary of State v AT [2023] EWCA Civ 1307
   Cited by the appellant, but distinguished: that case concerned Charter rights, not equal-treatment rights for benefits.

3.2 Court’s Legal Reasoning

1. Textual Interpretation (Vienna Convention) – Articles 13, 18 and 23 were read in their “ordinary meaning, context, object and purpose”. The Court emphasised the Withdrawal Agreement’s goal: orderly withdrawal maintaining the status quo, not enhancing benefits for economically-inactive EU citizens.
2. Article 13 Framework – The “general rule” of Article 13(1) ties residence rights to CRD conditions. Article 13(4)’s discretion is administrative and cannot override the substantive limitations.
3. Article 18 as Procedural, not Substantive – The EUSS is a mechanism (“badge”/“laissez-passer”) to evidence pre-existing WA rights. Granting PSS to persons outside CRD scope is a domestic policy choice enabled by Article 38 WA (more-favourable national rules) – but it does not enlarge WA obligations.
4. Mirroring of Article 23 and Article 24 CRD – Identical wording and cross-reference import the EU acquis limiting equal treatment to CRD-compliant residence. Extending Article 23 to all PSS holders would nullify Article 23(2)’s derogation.
5. Reciprocity & Financial Consequences – Accepting the appellant’s view would impose extensive benefit entitlements on the UK without reciprocal guarantees abroad, contradicting the Treaty’s balanced nature.

3.3 Likely Impact

• Housing & Welfare Cases: Local authorities and DWP can continue to treat non-economically-active PSS holders as ineligible for means-tested benefits unless they separately meet CRD/WA conditions (e.g., worker status or permanent residence).
• Future Litigation: Challenges will centre on whether an individual in fact meets Article 13(1) CRD conditions or possesses other WA-preserved rights (e.g., derivative Ibrahim/Teixeira rights), rather than on PSS alone.
• Policy Confirmation: Reinforces the Home Office stance post-IMA that EUSS is administrative. Social-security departments do not need to “look behind” PSS to presume WA equality rights.
• EU-UK Reciprocity: Reduces risk of asymmetrical obligations across the Channel, a key political concern during negotiations.

4. Complex Concepts Simplified

• Pre-Settled Status (PSS) – Five-year limited leave to remain granted under domestic immigration rules (Appendix EU). It signals the holder was resident in the UK before 31 Dec 2020 but does not, by itself, satisfy EU free-movement conditions.
• Citizens’ Rights Directive (CRD) Conditions – After three months, EU citizens must be workers, self-employed, job-seekers (temporarily), students or self-sufficient (with resources & health insurance) to maintain an EU right of residence.
• Withdrawal Agreement (WA) Equal Treatment – Article 23 grants anti-discrimination protection only to those whose residence is grounded in the WA (i.e., still meets CRD-style conditions or has permanent residence).
• Constitutive vs Declaratory Schemes – Under Article 18 WA, a constitutive scheme (EUSS) demands an application for documentary status; a declaratory scheme would recognise rights automatically. Either model is merely evidential – it does not create new residence rights.
• Acte Clair – A doctrine allowing domestic courts to refrain from referring to the CJEU if EU law’s answer is “so obvious as to leave no reasonable doubt”. The Court found the interpretation of Articles 13, 18 & 23 WA sufficiently clear.

5. Conclusion

Fertre provides definitive guidance that:

1. PSS holders who are not exercising CRD residence rights (worker, self-sufficient, etc.) are not “residing on the basis” of the Withdrawal Agreement.
2. PSS therefore does not automatically entitle the holder to equal access to public funds or housing assistance.
3. Article 18 WA is procedural; Article 13(1) sets the substantive threshold, and Article 23 mirrors existing EU law on equal treatment.

The decision preserves continuity with pre-Brexit EU law, curbs the expansion of welfare entitlements, and delineates a clear boundary between domestic immigration policy and international Treaty obligations. Future disputes will likely pivot on whether a claimant’s circumstances bring them within the CRD/WA framework – not on PSS status alone.