Court of Appeal rules pre-settled status holders are not automatically eligible for housing assistance

The Court of Appeal has handed down the judgment in Fertre v Vale of White Horse District Council, finding that EU citizens with pre-settled status who cannot meet the right to reside test are not eligible for housing assistance on the same basis as British citizens. 

the3million intervened in the case, arguing that everyone with status under the EU Settlement Scheme is a beneficiary of the Withdrawal Agreement, and should be treated accordingly, benefiting from the access to welfare protection as British citizens.

We are disappointed in the outcome of this crucial case, which had the potential to ensure that EU citizens and family members with pre-settled status would automatically be able to access welfare support, if they needed it. 

During the proceedings, we also argued the case should be referred to the European Court of Justice, as the matter at hand is equally important to both EU citizens in the UK and British citizens in EU Member States. Unfortunately the judges did not agree with this position. 

The appellant may still make an application to appeal to the Supreme Court.

Other interveners in this significant case included Shelter, the AIRE Centre, the Independent Monitoring Authority and the Secretary of State for Housing Communities and Local Government.

What is next?

When a matter of law has been determined by a higher court like the Court of Appeal, other courts are required to follow such decisions. Because of this principle, we think it is unlikely that new cases will be brought raising the same legal arguments we had intervened to support. 

Unless this case is heard by the Supreme Court, it is unlikely that legal action alone will be sufficient to overturn these unfair policies. However, our work through campaigning and advocacy continues to make significant progress in advancing welfare justice.

Progress through advocacy

Thanks to sustained pressure and engagement, we’ve achieved key policy changes:

• From July 2025, the absence policy for pre-settled status holders has changed. Under the new rules, people with pre-settled status only have to provide evidence of 30 months of UK residence in the last 60 months to qualify for settled status. This will allow many more people to become eligible for settled status - a status that grants access to welfare benefits on the same basis as British citizens.
   
• The government has introduced Clause 42 to the Border Security, Asylum and Immigration Bill. The aim of this clause is to remove the distinction between the “true” and “extra” cohorts of EU citizens with rights under the Withdrawal Agreement. It sets out a way in UK legislation to remove the difference between those with status under the EU Settlement Scheme who were working, self-employed or self-sufficient on 31st December 2020, and those who were not.
   
• While Clause 42 does not remove the right to reside test, it represents progress. People who otherwise cannot live in dignity will be able to rely on the EU Charter to access welfare, without having to prove they were a worker, self-sufficient or a student at the end of December 2020. 

Thank you!

Although this particular case has had a disappointing result, we are proud of the representations we presented - made possible only with your continued support. Thank you for standing up for dignity and justice! 

We are deeply grateful to our excellent legal team: our solicitor Aoife O’Reilly at Public Law Project, an independent national legal charity representing marginalised communities, and our barristers Tom Royston and Charles Bishop, for their outstanding representation. 

This isn’t the end of the road in challenging welfare injustice. We will continue to campaign, advocate and fight for a fair system that recognises the rights of all EU citizens to live with dignity in the UK.