Fertre v Vale of White Horse District Council

Factual and Procedural Background

The case concerns an EU national ("Appellant") living in the UK holding pre-settled status ("PSS") granted under Article 18 of the Withdrawal Agreement (WA). The Appellant’s claim for homelessness support under the Housing Act 1996 was refused by the local authority ("Respondent") on the basis that she was a "person from abroad" not entitled to such support. After an unsuccessful review by the Respondent, the Appellant appealed to the County Court, and the case was transferred to the High Court. Mr Justice Jay dismissed the appeal, and the Appellant now appeals that decision.

The Appellant is not currently homeless, having been provided accommodation by Oxfordshire County Council. The appeal was deemed not academic because homelessness might arise in the future while holding PSS.

The Appellant arrived in the UK in November 2020, is a French national with two children who have medical conditions. She was granted PSS expiring in November 2025 but was refused local authority housing assistance due to no recourse to public funds and lack of economic activity. Following statutory reviews and appeals, the case reached the High Court.

The case engages the interpretation of the Withdrawal Agreement, the EU Settlement Scheme (EUSS), and domestic housing assistance eligibility rules, particularly focusing on whether PSS holders have residence rights under the Withdrawal Agreement that entitle them to homelessness support.

Legal Issues Presented

1. Whether the Appellant, holding PSS under Article 18 of the Withdrawal Agreement, resides in the UK "on the basis of" the Withdrawal Agreement for the purposes of protection against discrimination under Article 23.
2. If so, whether the refusal of homelessness support constituted unlawful direct discrimination on grounds of nationality.
3. Alternately, if the discrimination was indirect, whether it was capable of objective justification.

Arguments of the Parties

Appellant's Arguments

• The Appellant contends that she resides in the UK on the basis of the Withdrawal Agreement and is thus protected by its equal treatment provisions.
• She argues that the judge erred in concluding the discrimination was indirect rather than direct.
• She submits that any indirect discrimination is not objectively justifiable.
• The Appellant relies on Article 13(4) of the Withdrawal Agreement as conferring an unconditional right of residence on PSS holders, extending beyond the conditions in Article 13(1).
• She asserts Article 18 elevates PSS from a domestic law status to a right under the Withdrawal Agreement.
• She urges a reference to the Court of Justice of the European Union (CJEU) arguing the issue is not acte claire and that there is uncertainty about rights under the Withdrawal Agreement.

Secretary of State and Respondent's Arguments

• They argue that the Appellant does not reside in the UK on the basis of the Withdrawal Agreement.
• The grant of PSS arises solely from domestic law and is more generous than EU law requires but does not confer rights under the Withdrawal Agreement.
• Article 13(1) sets the rule for residence rights, and Article 13(4) provides a limited administrative discretion, not a power to expand rights broadly.
• Article 18 is an administrative provision conferring a residence status that serves as a gateway or badge of entitlement to rights under the Withdrawal Agreement, not the rights themselves.
• Article 23 mirrors Article 24 of the Citizens’ Rights Directive (CRD) and limits equal treatment protection to those with rights under the CRD preserved by the Withdrawal Agreement.
• There is no need for a CJEU reference as the issues are acte claire.

Interveners' Positions

• The Independent Monitoring Authority (IMA) supports the Secretary of State’s position that the Appellant has no residence rights under the Withdrawal Agreement but raises a minor non-material dispute.
• The3million Ltd (T3M) and Shelter broadly support the Appellant’s case that she has residence rights under the Withdrawal Agreement and advocate for a CJEU reference.
• The AIRE Centre supports the Appellant’s discrimination arguments, asserting the discrimination is direct and unjustifiable.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court applied the principles of treaty interpretation under the Vienna Convention, focusing on the ordinary meaning of the Withdrawal Agreement’s terms, its context, object, and purpose. The Court emphasized that the Withdrawal Agreement intended to preserve existing EU law rights and ensure reciprocity, not to broaden rights to social benefits for economically inactive EU nationals beyond the pre-Brexit status quo.

The Court distinguished between EU law residence rights under the Citizens’ Rights Directive (CRD) and domestic law rights such as PSS. It held that PSS is a domestic law status granted under the EU Settlement Scheme (EUSS), which is more generous than the CRD but does not create EU law rights or extend the scope of the Withdrawal Agreement.

Regarding Article 13, the Court found that Article 13(1) sets the general rule that residence rights correspond to the conditions in the CRD, while Article 13(4) provides a limited administrative discretion to waive certain conditions only in favor of the individual, not a broad power to expand rights. The Appellant’s interpretation that Article 13(4) confers an unconditional right of residence to all PSS holders was rejected as inconsistent with the treaty’s text and purpose.

Article 18 was interpreted as an administrative provision establishing a "new residence status" that acts as a gateway or badge of entitlement to rights under the Withdrawal Agreement, rather than conferring rights itself. The Court relied heavily on the Independent Monitoring Authority case, which confirmed this interpretation and was supported by the UK Government and the EU Commission.

Article 23 was held to mirror Article 24 of the CRD, limiting equal treatment protections to those with residence rights under the CRD preserved by the Withdrawal Agreement. The Court rejected the Appellant’s argument that Article 23 extended protection to all persons residing under the Withdrawal Agreement, including those with only PSS.

The Court also addressed ancillary arguments, including the Secretary of State’s Respondent’s Notice, concluding that PSS is a purely domestic law right permitted by Article 38 of the Withdrawal Agreement and does not expand the scope of Article 13(1).

On the question of referring the matter to the CJEU, the Court found the issue to be acte claire, with a clear answer provided by existing case law and treaty interpretation, and therefore declined to make a reference.

Ground 2, concerning whether the discrimination was direct or indirect, was not addressed substantively because the Appellant failed on Ground 1. The Court noted the complexity and differing views on this issue and preferred to leave it unresolved.

Holding and Implications

The Court’s final decision is to DISMISS THE APPEAL.

The holding is that the Appellant does not reside in the UK "on the basis of" the Withdrawal Agreement and therefore is not entitled to protection under Article 23 against discrimination in relation to homelessness support. The Court confirms that PSS is a domestic law right that does not confer EU law residence rights preserved by the Withdrawal Agreement.

The direct effect of this decision is that the Appellant remains ineligible for homelessness assistance under domestic law as applied by the Respondent. No new precedent is established beyond affirming the distinction between domestic law rights and EU law rights preserved by the Withdrawal Agreement. The Court declined to refer the matter to the CJEU, finding the legal position clear.