Opinion of the Advocate General — ECLI:EU:C:2021:515
Date: 2021-06-24
Language of the case: English
Subject matter: Anti-discrimination;Non-discrimination on grounds of nationality
Procedure: Reference for a preliminary ruling;Reference for a preliminary ruling - inadmissible
Origin: United Kingdom

summary of the stages of the withdrawal of the United Kingdom available at the following Internet address: https://eur-lex.europa.eu/content/news/Brexit-UK-withdrawal-from-the-eu.html?locale=en. 7 https://www.gov.uk/guidance/immigration-rules/immigration-rules-appendix-eu. 8 This is the same deadline as that for applications submitted under Article 18(1)(b) of the Agreement on the withdrawal of the United Kingdom, with effect from 1 January 2021. See also footnote 29 to this Opinion. 9 The United Kingdom refers to the judgment of 21 December 2011, Ziolkowski and Szeja (C‑424/10 and C‑425/10, EU:C:2011:866; ‘the judgment in Ziolkowski and Szeja’). 10 ‘The 2019 Social Security Regulations’. 11 Together, ‘the 2016 Universal Credit Regulations’. 12 See the Explanatory Memorandum to the 2016 Universal Credit Regulations, available at: https://www.legislation.gov.uk/nisr/2016/216/pdfs/nisrem_20160216_en.pdf. 13 What are essentially the same provisions apply in the rest of the United Kingdom, the reference territory being Great Britain, in accordance with section 4(1)(c) of the Welfare Reform Act 2012 and the 2019 Social Security Regulations. 14 ‘The EEA Regulations’. That regulation covers the initial right of residence and deals with residence of less than three months. 15 This regulation refers to the extended right of residence, corresponding to the right of residence referred to in Article 7 of Directive 2004/38. 16 That is to say, a person who is the primary carer of a British citizen. 17 Emphasis added. This is the amendment resulting from the 2019 Social Security Regulations that forms the basis of the request for a preliminary ruling. In its written observations, the Department for Communities in Northern Ireland states that the reference in the referring court’s first and second questions to Regulation 9(3)(c)(i) is to the provision applicable in Great Britain. Consequently, for the purposes of the present reference for a preliminary ruling, which comes from Northern Ireland, the questions should be taken to refer to Regulation 9(3)(d)(i) of the 2016 Universal Credit Regulations, which is the equivalent provision for Northern Ireland. 18 It is stated in the order for reference that, according to the Universal Credit service, the definition of ‘family member who has retained the right of residence’ mirrors that set out in regulation 10 of the EEA Regulations and that CG cannot claim such status as she has not demonstrated that she was married or was still in a durable relationship with her partner, an EU citizen. 19 According to the documents in the file, the two children were born in the United Kingdom, on 1 March 2019 and in 2020, respectively. The elder child is under school age. The Appeal Tribunal for Northern Ireland (United Kingdom), the referring court, stated in answer to the questions put by the Court concerning the request for an expedited procedure that, according to CG, the two children are the subject of Social Services Supervision Orders. 20 CG states that she arrived in the United Kingdom ‘in late 2018 or early 2019’, so that her partner could take up an offer of employment. The European Commission takes the date to be 21 January 2019. 21 According to CG’s observations, after moving back and forth several times between the residence which she shared with her violent partner and that refuge, she definitively settled in the refuge in early 2020. In its answer to the question put by the Court concerning the request for an expedited procedure, the referring court informed the Court that CG’s accommodation in a refuge cannot be regarded as settled accommodation. In her written observations, CG stated that she moved to self-contained accommodation provided by social services in January 2021. 22 See point 12 of this Opinion. 23 In her written observations, CG stated, first, that for the first three months of her residence in the United Kingdom, she had the right to reside there without conditions or formalities, in accordance with Article 6 of Directive 2004/38. Upon expiry of that three-month period, she was not asked by the United Kingdom authorities to prove a continuing right of residence. She was not asked or required to leave the United Kingdom. CG and her first child left the United Kingdom temporarily for the Netherlands, between October 2019 and January 2020, to stay with her parents, and they then returned to the United Kingdom. She emphasises that she has spent the whole of her residence in Northern Ireland. Second, she states that she is not eligible for permission for indefinite leave to remain as a victim of domestic violence. Her application in that regard, submitted on 11 November 2020, was refused on 3 March 2021. See, for the conditions for obtaining such leave, footnote 18 to this Opinion. 24 The European Communities Act 1972 is the law on the accession of the United Kingdom to the European Union. 25 C‑456/02, EU:C:2004:488; ‘the judgment in Trojani’. 26 In her written observations, CG stated that, in the case of Fratila v Secretary of State for Work and Pensions [2020] EWCA Civ 1741, provisions analogous to those being challenged in the present case, covering Great Britain, were held to be unlawful as discriminatory on the ground of nationality, contrary to Article 18 TFEU, by decision of 18 December 2020 of the Court of Appeal (United Kingdom). That decision was the subject of an appeal by the Secretary of State for Work and Pensions (United Kingdom) before the Supreme Court, with the hearing set for 18 and 19 May 2021. CG states that that procedure concerns two Romanian nationals, Ms Fratila, who came to the United Kingdom, worked for just under a year and then lost worker status. She claimed and was refused Universal Credit. Shortly beforehand, she had been granted pre-settled status. At that time, she had been in the United Kingdom for almost five years. She was subsequently granted settled status and awarded Universal Credit. The other person involved, Mr Tanase, has life-long disabilities and uses a wheelchair. He came to the United Kingdom to receive care from Ms Fratila. He receives various benefits from Romania, including a disability pension, a basic retirement pension and an allowance for costs of care. He was also refused Universal Credit shortly after being granted pre-settled status. He had been resident in the United Kingdom for five months. See paragraphs 13 and 14 of the decision available at: https://files.gcnchambers.co.uk/wp-content/uploads/2020/12/18111043/Fratila-v-Secretary-of-State-for-Work-and-Pensions-2020-EWCA-1741-18-December-2020.pdf. 27 See point 12 of this Opinion. 28 On that date, the new residence status, established in Article 18 of the Agreement on the withdrawal of the United Kingdom, could not be granted. Although, under Article 19 of that agreement, during the transition period, applications for residence status may be made in advance, decisions accepting or refusing such applications took effect only on 1 January 2021. In addition, applicants must satisfy conditions equivalent to those set out in Directive 2004/38. 29 The position would be different, in application of the second subparagraph of Article 158(1) of the Agreement on the withdrawal of the United Kingdom, only if the procedure, initiated after 1 February 2020, or during the transition period, had had as its subject matter a decision on an application made pursuant to Article 19 of that agreement, which provides for the possibility of applying for a new residence status or residence document as provided for in Article 18 of that agreement (paragraphs 1 and 4). 30 See, in particular, judgment of 15 September 2015, Alimanovic (C‑67/14, EU:C:2015:597; ‘the judgment in Alimanovic’; paragraphs 42 to 44 and the case-law cited). 31 As to what the expression ‘Universal Credit’ covers, see point 25 of this Opinion. It serves to designate a variety of allowances, some of which may be governed by special rules of EU law. See, by way of illustration, judgment of 14 June 2016, Commission v United Kingdom (C‑308/14, EU:C:2016:436; ‘the judgment in Commission v United Kingdom’; paragraphs 27 and 55). 32 On the concept of ‘social assistance’ in Article 7(1)(b) of Directive 2004/38 and its interpretation as covering all assistance introduced by the public authorities, whether at national, regional or local level, that can be claimed by an individual who does not have resources sufficient to meet his or her own basic needs and the needs of his or her family, see judgment of 19 September 2013, Brey (C‑140/12, EU:C:2013:565; ‘the judgment in Brey’; paragraphs 60 and 61). 33 See judgment of 6 October 2020, Jobcenter Krefeld (C‑181/19, EU:C:2020:794; ‘the judgment in Jobcenter Krefeld’; paragraph 57 and the case-law cited). 34 See judgment of 11 November 2014, Dano (C‑333/13, EU:C:2014:2358; ‘the judgment in Dano’; paragraph 59). 35 See, in particular, the judgment in Jobcenter Krefeld (paragraph 78 and the case-law cited). 36 See, in particular, the judgment in Dano (paragraphs 59 to 61). I note that in Part Two of the Agreement on the withdrawal of the United Kingdom (see point 8 of this Opinion), Article 18 TFEU is reproduced in Article 12, and its more specific expression, namely Article 24 of Directive 2004/38, is reproduced in Article 23 of that agreement. On the case-law preceding the entry into force of that directive, see point 54 of this Opinion. See also the analysis by Robin-Olivier, S., ‘Les droits sociaux des “étrangers communautaires”’, L’Avenir de l’État de Droit Social en Europe, Julia Iliopoulos-Strangas (ed.), Nomos Verlagsgesellschaft, Baden-Baden, 2015, pp. 217-246, especially pp. 221 and 228. See, to the same effect, Rondu, J., ‘Chapitre 2 – L’individu relevant du seul droit national, résultante du caractère partiel de l’intégration’, L’individu, sujet du droit de l’Union européenne, Bruylant, Brussels, 2020, pp. 683-756, especially p. 711, paragraph 898. That author considers that Article 18 TFEU no longer applies, since the lex specialis of Article 24 of Directive 2004/38 replaces the lex generalis of the principle of equal treatment in the Treaties. 37 It is stated in CG’s written observations that she cited the judgment in Trojani in support of her claim, in order to rely on the application of Article 18 TFEU. 38 See, in particular, the judgment in Brey (paragraph 44 and the case-law cited). 39 In that regard, I note that at the hearing the Commission initially adopted that line of reasoning, which appeared in its written observations, without however relying on the judgments cited there, but then reformulated it subsequently in answer to a question from the Court relating to the applicability of the Charter. In that regard, see point 81 of this Opinion. 40 See the judgment in Brey (paragraph 31). 41 See judgment of 20 September 2001, Grzelczyk (C‑184/99, EU:C:2001:458; ‘the judgment in Grzelczyk’; paragraphs 32, 33 and 35), and the judgment in Trojani (paragraphs 37 and 40). 42 See the judgments in Brey (paragraph 18), Dano (paragraph 36), and Alimanovic (paragraph 27). According to settled case-law, the grant of a residence permit does not confer rights, but has only a declaratory effect. It does not confer a right of residence (see, in particular, judgment of 14 September 2017, Petrea (C‑184/16, EU:C:2017:684, paragraphs 32 and 33)). Conversely, that qualification does not exclude an EU citizen who was resident in the host Member State before the entry into force of the directive, but was legally resident on the basis of another instrument of EU law (judgment of 7 October 2010, Lassal (C‑162/09, EU:C:2010:592)). 43 See the judgment in Dano (paragraphs 65 and 66). 44 See paragraph 80 of that judgment. 45 See the judgment in Dano (paragraph 66). 46 See the judgment in Dano (paragraphs 61 and 64). 47 In that regard, see Martin, D., ‘Article 24 – Égalité de traitement’, Directive 2004/38 relative au droit de séjour des citoyens de l’Union européenne et des membres de leur famille, Bruylant, Brussels, 2020, pp. 373-396, especially. p. 380, paragraph 16, where the author asks, ‘since the European legislature did not intend, in Article 24 of the directive, to place restrictions on the right to non-discrimination established in paragraph 1, other than those set out in paragraph 2, was the Court of Justice still entitled to interpret paragraph 1 as implicitly including a condition of integration?’ 48 In its judgment in Commission v United Kingdom, the Court confirmed the meaning of its case-law (paragraphs 66 to 69). See also point 77 of this Opinion, concerning the judgment in Alimanovic and the judgment of 25 February 2016, García-Nieto and Others (C‑299/14, EU:C:2016:114; ‘the judgment in García-Nieto and Others’), delivered subsequently, concerning the conditions laid down, respectively, in Article 14(4)(b) and Article 6(1) of that directive. Furthermore, as regards the importance of those decisions in the context of the main proceedings, I refer to the observation of Iliopoulou-Penot, A., ‘Chapitre 11 – Citoyenneté de l’Union et accès des inactifs aux prestations sociales dans l’État d’accueil’, Le rôle politique de la Cour de justice de l’Union européenne, Clément-Wilz, L. (ed.), Bruylant, Brussels, 2018, pp. 315-334, especially p. 318, according to which ‘the political agreement which the European Council [had] reached on 19 February 2016, in a vain attempt to avoid Brexit, reproduce[d] word for word the solutions adopted in the judgments in Dano and Alimanovic, thus emphasising their importance in the discussion of the United Kingdom’s “new place” in the Union’. See also, concerning the positions adopted by the United Kingdom in 2017, footnote 55 to this Opinion. 49 See, in that regard, the judgment in Jobcenter Krefeld (paragraph 62). 50 See the judgment in Jobcenter Krefeld (paragraph 66). 51 See paragraphs 36 and 37 of that judgment. 52 On the autonomous application, by comparison with provisions of EU law, such as those of Directive 2004/38, of Article 10 of the Regulation of the European Parliament and of the Council of 5 April 2011 on freedom of movement for workers within the Union (OJ 2011 L 141, p. 1), which allows the children of a national of a Member State who works or has worked in the host Member State, together with the parent who is their primary carer, to rely on that provision without being required to satisfy the ‘sufficient resources’ and ‘comprehensive sickness insurance cover’ conditions, see the judgment in Jobcenter Krefeld (paragraphs 38 and 39 and the case-law cited). 53 See the judgment in Jobcenter Krefeld (paragraph 69). 54 See the judgment in Jobcenter Krefeld (paragraph 87). 55 See, in that regard, judgment in Jobcenter Krefeld (paragraph 62). As regards the United Kingdom’s decision not to create any new entitlement to benefits for persons having limited right to remain, the United Kingdom explained, in its written observations, that that decision is consistent with its public statements which were published in June 2017 in a document entitled Safeguarding the Position of EU Citizens Living in the UK and UK Nationals Living in the EU (see, more specifically, paragraph 41). 56 See O’Brien, C., ‘Between the devil and the deep blue sea: vulnerable EU citizens cast adrift in the UK post-Brexit’, Common Market Law Review, vol. 58, 2021, Kluwer Law International, Alphen-sur-le-Rhin, 2021, pp. 431-470, especially pp. 456-457. The United Kingdom’s decision to create an unconditional right to reside for Union citizens in the context of the withdrawal of the United Kingdom from the European Union, namely pre-settled status, instead of simply making a right to reside conditional on meeting the requirements of Directive 2004/38, or creating only a declaratory status (that did not confer rights), was coupled in 2019 with an explicit exclusion of that particular right to reside from social benefits, unless citizens prove that they come within the conditions of Directive 2004/38, under the 2016 Universal Credit Regulations. According to that author, the United Kingdom’s decision to do so was influenced by the excessive administrative burden that would have been placed on the authorities if the right to reside post-Brexit for EU citizens had been made conditional on meeting the criteria in Article 7 of Directive 2004/38. 57 The judgment in Ziolkowski and Szeja (paragraph 49). 58 The judgment in Ziolkowski and Szeja (paragraph 50). 59 See paragraph 51 of that judgment. The Court thus held that residence, under a right consistent with the law of a Member State, but not satisfying the conditions laid down in EU law, cannot be considered legal residence, within the meaning of Article 16(1) of Directive 2004/38, for the purpose of acquiring a right of permanent residence. See, also, judgment of 2 May 2018, K. and H. F. (Right of residence and allegations of war crimes) (C‑331/16 and C‑366/16, EU:C:2018:296, paragraph 74). 60 The judgment in Ziolkowski and Szeja (paragraphs 18 and 19). 61 In that regard, it is pointed out that, in the judgment in Grzelczyk, in paragraph 31, the Court held that ‘Union citizenship is destined to be the fundamental status of nationals of the Member States, enabling those who find themselves in the same situation to enjoy the same treatment in law irrespective of their nationality, subject to such exceptions as are expressly provided for’. See, also, judgment of 17 September 2002, Baumbast and R (C‑413/99, EU:C:2002:493, paragraph 83). 62 It should be noted that I take the expression ‘right to reside lawfully’ from the judgment in Commission v United Kingdom, used in some cases on the basis of provisions transposing Article 7 of Directive 2004/38, but also to express more generally the condition of lawfulness of residence (see paragraphs 72, 80 and 81). Verschueren, H., ‘The right to reside and to social benefits for economically inactive EU migrants: how to balance freedom of movement and solidarity?’, La libre circulation sous pression; Régulation et dérégulation des mobilités dans l’Union européenne, Damay, L. et al. (eds), Bruylant, Brussels, 2018, pp. 33-51, especially p. 45, derives from the finding of the use of the expression ‘lawful residence’, without always referring to Directive 2004/38, the argument that such residence may be based on another provision of EU law, which was confirmed in the judgment in Jobcenter Krefeld, but also on a more favourable provision of national law, as in, in particular, the judgment in Trojani. 63 See paragraph 60 of that judgment. 64 See paragraphs 67, 68 and 87 of that judgment. 65 It is pointed out in paragraphs 67 and 87 of that judgment that those cases concerned citizens who had, respectively, a right of residence based solely on Article 14(4)(b) of Directive 2004/38, on the ground that the citizen concerned was seeking employment, or a right of residence for a period of no more than three months on the basis of Article 6(1) of that directive. 66 In paragraph 68 of that judgment, it is stated that that case concerned nationals of a Member State who were economically inactive and who had exercised their freedom of movement with the sole aim of receiving social assistance from another Member State and who had no right of residence in the host Member State based on Directive 2004/38 or an any other provision of EU law. 67 See the judgment in Brey (paragraph 71 and the case-law cited). See also, concerning the consequences as regards protection against removal that should be taken into consideration, the judgments in Grzelczyk (paragraph 43), and Trojani (paragraph 45), and also the analysis by Rondu, J., op. cit., especially p. 714, paragraph 902, which refers to the judgment of 13 September 2016, CS (C‑304/14, EU:C:2016:674, paragraph 42). See, in particular, page 717, paragraph 907, footnotes 157 and 158. 68 See the judgment in Dano (paragraphs 87, 90 and 91). The Court held that, since the conditions for the grant of special non-contributory cash benefits result neither from Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems (OJ 2004 L 166, p. 1) nor from Directive 2004/38 or from any other acts of EU secondary law, the Member States are competent to determine the conditions for granting it and its scope and that, consequently, they are not implementing EU law for the purposes of Article 51(1) of the Charter and that the Charter is not applicable. 69 See paragraph 65 of that judgment. 70 See the judgment in Dano (paragraph 69). 71 See the judgments in Brey (paragraphs 77 and 80), and also in Jobcenter Krefeld (paragraph 79). 72 See, in that regard, the facts of the case pending in the United Kingdom referred to by CG, which are described in footnote 26 to this Opinion. 73 See the judgment in Brey (paragraphs 72 and 77). 74 See, in particular, judgment of 13 April 2010, Bressol and Others (C‑73/08, EU:C:2010:181 paragraph 41). 75 See point 27 of this Opinion. 76 That condition may not be satisfied by certain United Kingdom nationals who, for example, have lived abroad. See, concerning national legislation which does not make an exception for such a situation, judgment of 4 May 1999, Sürül (C‑262/96, EU:C:1999:228, paragraphs 102 and 104). 77 See, by analogy, the judgment in Commission v United Kingdom (paragraph 78 and the case-law cited). 78 See the judgment in Commission v United Kingdom (paragraph 79 and the case-law cited). 79 See the judgment in Commission v United Kingdom (paragraph 80). 80 See the judgment in Brey (paragraph 78). 81 See the judgment in Commission v United Kingdom (paragraph 65 and the case-law cited). 82 See the judgment in Commission v United Kingdom (paragraph 81). See also the judgment in Brey (paragraph 77). 83 See paragraph 78 of that judgment. See also judgment of 17 September 2002, Baumbast and R (C‑413/99, EU:C:2002:493, paragraphs 91 and 92). 84 I recall that it follows from the judgment in Dano (paragraph 81) that the Court did not consider it necessary to limit the situations in which an individual examination must be carried out. 85 In that regard, I share the view expressed by the Commission that automatic exclusion from social assistance is particularly inappropriate in a case of residence for a relatively long period. See, by way of illustration, the situation of Ms Fratila described in footnote 26 to this Opinion. 86 See the judgment in Brey (paragraph 72 and the case-law cited). 87 According to CG’s representative, this refers to third-country nationals whose right of residence was subject to the condition laid down in section 3(1)(c)(ii) of the Immigration Act 1971 that they will not have recourse to public funds when they apply to have that condition lifted when they consider that they are at risk of imminent destitution without recourse to public funds. Her written observations include references to the following two documents: ‘Family life (as a partner or parent), private life and exceptional circumstances’, Home Office (version 13.0, 1 February 2021), p. 88, and ‘Immigration rules, Appendix FM: family members’, GEN.1.11A. to the United Kingdom Immigration Rules. 88 See point 81 of this Opinion. 89 See the judgment in Jobcenter Krefeld (paragraph 57). In that regard, apart from Article 1 of the Charter, Article 34(2) deserves special attention, since it establishes a link between the principles of freedom of movement and equal treatment in social assistance matters and is based, in particular, on Article 13 of the European Social Charter, signed in Turin on 18 October 1961, which the United Kingdom has accepted. Thus, I do not preclude that that provision may be of practical effect in a review of the lawfulness of the national measures that implement it or, at least, for the purpose of setting a framework for the assessment of equal treatment by the national court. See, to that effect, judgment of 24 April 2012, Kamberaj (C‑571/10, EU:C:2012:233, paragraphs 80 and 92). 90 In her written observations, CG stated that her children have Netherlands nationality. CG’s family situation is therefore comparable, in particular, to that of Ms H.C. Chavez-Vilchez, described in the judgment of 10 May 2017, Chavez-Vilchez and Others (C‑133/15, EU:C:2017:354; ‘the judgment in Chavez-Vilchez and Others’; paragraphs 21 and 22). 91 See the judgment in Chavez-Vilchez and Others (paragraph 64). 92 See the judgment in Chavez-Vilchez and Others (paragraph 59). 93 See the judgment in Chavez-Vilchez and Others (paragraph 69 and the case-law cited). 94 See the judgment in Chavez-Vilchez and Others (paragraph 70). 95 See the judgment in Chavez-Vilchez and Others ( paragraph 71).