LUXEMBOURG (CN) — The United Kingdom's denial of social support to a European Union citizen is unlawful discrimination, a magistrate for the bloc's top court said Thursday.
"The legislation seems to me to affect nationals of other member states more than ‘home’ nationals and may therefore disadvantage the former more particularly. Thus, that legislation creates, in my view, indirect discrimination on the ground of nationality," Advocate General Jean Richard de la Tour wrote in a nonbinding opinion for the European Court of Justice.
The French magistrate was referring to legislation implementing a number of changes to the British social security system following Brexit, the United Kingdom’s withdrawal from the European Union.
The case was referred to the EU's highest court by the Appeal Tribunal in Northern Ireland after a Dutch-Croatian woman who lives in Northern Ireland was denied universal credit, a government payment for people over 18 but under retirement age who are out of work and on low income. The Department for Communities, the office which administers social assistance programs, denied her request based on her lack of British nationality. Northern Ireland is a part of the U.K.
The woman, identified as CG in court documents, had been granted pre-settled status in the United Kingdom under the EU Settlement Scheme, the process by which EU citizens living in the U.K. prior to Brexit could remain after it left the union. Further complicating matters, CG, who moved to Northern Ireland with her Dutch husband and had a child, is a U.K. national.
When it was a member of the EU, the U.K. was required to treat EU citizens the same as its own nationals. After Brexit, there is no longer a reciprocal right to live and work in the U.K. and EU. Both British citizens in the EU and EU citizens living in the U.K. have scrambled to sort out residency since the withdrawal.
In his advisory opinion Thursday, de la Tour said it isn’t that all EU citizens are entitled to social benefits, but U.K. authorities cannot automatically deny benefits on that basis.
“I am of the view that by not providing that the competent authorities must carry out an assessment of all of the individual circumstances that characterize the situation of extreme poverty of the person concerned and of the consequences of a refusal of his or her application in consideration, according to his or her situation, of the right to respect for family life and of the best interests of the child, the national legislation goes beyond what is necessary to maintain the equilibrium of the social assistance scheme of the host member state," he wrote.
The magistrate added that people living in the U.K. “without lawful residence” could be excluded from the universal credit program.
Moreover, de la Tour said denying CG’s benefits likely has a domino effect for her child, who is a British citizen. Previous court case law established that "the relationship of dependency between the third-country national parent and the child had to be assessed in a way that took into account, in the best interests of the child concerned, all the specific circumstances.”
A final ruling on the case is expected later this year. While the Court of Justice isn’t obligated to follow de la Tour’s opinion, decisions follow the legal reasons in about 80% of cases.
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