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The Great EU Citizenship Illusion Exposed: equal treatment rights evaporate for the vulnerable

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JournalEuropean law review
DateAccepted/In press - 6 Oct 2021
Original languageEnglish

Abstract

EU nationals in the UK are going through an unprecedented shift of status. In order to retain their right to reside, they have had to apply to the UK’s EU Settled Status Scheme, to obtain either settled or pre-settled status – reflecting the distinction between permanent and temporary residence rights under the EU/UK Withdrawal Agreement. But the UK government has decided that pre-settled status does not entail equal treatment rights when it comes to accessing social assistance. In a dramatic turn of litigation events, this decision has been challenged in twin, parallel cases. In the first, Fratila, the Court of Appeal of England and Wales quashed the regulations, as contrary to the landmark Trojani ruling that an EU citizen with a right to reside is entitled to benefit from equal treatment rights as an EU citizen. But that reasoning has been – rather startlingly – upended in this case. The CJEU ignore Trojani completely, drawing from Dano a sweeping exclusion from equal treatment rights for those not in work and without sufficient resources. The only effect of having a domestic right to reside, according to the Court, is the opportunity to invoke the Charter of Fundamental Rights as a last resort. This judgment will have ramifications for EU migrants in the whole of the EU, casting aside the primary law right to non-discrimination and exposing EU citizenship’s great illusion of social solidarity.

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