Fertre v Vale of White Horse District Council  (2025) EWCA Civ 1057

Yes, I am very late to this one, but doing a note for the sake of completeness.

The Court of Appeal held that Pre-Settled Status (PSS) under Article 18 of the Agreement on the Withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (the “Withdrawal Agreement”), did not in itself confer access to housing services, including Part VII homelesness support under Housing Act 1996.

What mattered was the basis of the right to reside on which PSS was granted as of 31 December 2020, or that existed at the time of an application as homeless, and the rights conferred by that status.

Ms F came to the UK in November 2020. She was not subsequently economically active, in part due to caring responsibilities for two disabled children. She had made a homeless application in October 2021, which was refused on the basis that she was not working and her visa stated no recourse to public funds. (She has since obtained private sector accommodation.)

The Court of Appeal held that a person with PSS who would have had an enforceable EU residence right at the time of a homeless application would be eligible under domestic law. But Ms F did not have such a right at the time of her application, because her right to residence was the three months for those economically inactive. This was underway at 31 December 2020. She therefore gained 5 years leave to remain, but

at the end of the initial three month period (expiring on 4 February 2021) the Appellant no longer had what would, under EU law, have been an enforceable EU law right to reside in the UK. Her initial right to reside under Article 6 CRD had expired, and she was not complying with the conditions of Article 7 CRD.

So, at the time of the application, Ms F had PSS status (and leave to remain for 5 years) in domestic law, but no remaining EU right to reside.

It follows, as a matter of logic, that some individuals with PSS on 1 January 2021 would have come into possession of a right of residence, previously held as a matter of EU law and now preserved by the Withdrawal Agreement. Such rights would correctly be categorised as held “on the basis of the Withdrawal Agreement” for Article 23 purposes. Typically, these would be EU citizens who had exercised their right to free movement to come to the UK and were either still within their first three months (Article 6 CRD) or remained economically active or retained sufficient resources to be self-sufficient (Article 7 CRD) (preserved by Article 13(1) of the Withdrawal Agreement). Indeed, if I have my dates right, the Appellant was within this group for a brief time because she arrived in the UK in November 2020. However, there was another group, into which the Appellant moved from February 2021 onwards, which comprised members with no EU right of residence and in consequence no right to reside on the basis of the Withdrawal Agreement; members of the latter group only have a domestic law right to remain in the UK. Thus it can be said that PSS is a single immigration status, conferring limited leave to remain in the UK, but that those with PSS will have differing rights of residence, depending on personal circumstances, and their entitlements and protections under the Withdrawal Agreement differ accordingly.

I conclude that the “new residence status which confers the rights under this Title” in Article 18(1) means only that it is a status (or badge) which confers (in the sense of giving access to or providing a gateway to) such rights as may have accrued, or yet accrue, under Title II of Part Two. At the time of the decision under appeal, the Appellant had no rights of residence under Title II of Part Two. She did have rights under the Charter, but those are not in issue in this appeal.

Appeal dismissed.