The Baroque vs the Rococo

Fertre v Vale of White Horse DC
10 Jul 2024

Housing, Local Government, Public Law and Judicial Review

In Fertre v Vale of White Horse DC, the High Court had the unenviable task of determining whether a European national who moved to the UK before Brexit, and has pre-settled status, but is economically inactive is eligible for housing assistance. Vale had determined that Ms Fertré was not eligible. This was challenged by an appeal which was transferred to the High Court for determination and came before Jay J.

The position under domestic law was set out in the rather Baroque regulations which have been amended and re-amended so often as to be often opaque. The Code of Guidance reflects the understood legal position arising out of them. It was not argued that Vale had got the domestic law wrong. However the appellant argued that the Brexit Withdrawal Agreement had the effect of guaranteeing her equal treatment with British citizens. She argued that the mere fact that she had PSS therefore meant that she was entitled to housing assistance. Her arguments relied on a rococo interweaving of the provisions of European law and the Brexit treaties.

She relied primarily on Article 23(1) of the Withdrawal Agreement, which has direct effect by virtue of the operation of section 7A of the European Union (Withdrawal) Act 2018 and which provides that

In accordance with Article 24 of Directive 2004/38/EC, subject to the specific provisions provided for in this Title and Titles I and IV of this Part, all Union citizens or United Kingdom nationals residing on the basis of this Agreement in the territory of the host State shall enjoy equal treatment with the nationals of that State within the scope of this Part.

The question, therefore, was whether she was residing in the UK on the basis of the Withdrawal Agreement.

Jay J. heard submissions not only from the parties but from several intervenors. These included the Secretary of State for Levelling Up, Housing and Communities, as it then was, the Independent Monitoring Authority for the Citizens’ Rights Agreements, the 3Million, a campaign group, and Shelter.

He dismissed the appeal. This means that the domestic law, as understood by the reviewing officer, was upheld. In terms of international law, the Appellant was not residing in the UK “on the basis of” the WA.

The Appellant sought, and was refused permission to appeal. However, she is likely to renew – even though she is not, now, homeless.

Catherine Rowlands was instructed by the Vale of White Horse District Council in the appeal.