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Thomas de la Mare Profile picture
@thebrieftweet
Feb 19, 2020 • 5 tweets • 2 min read • Read on X
We have just been arguing about that in Court today. EU SS has a different scope to Art 15 WA right of permanent residence (which is modelled on Art 16/17 of the Citizen's Rights Directive) - it is in fact more generous because there is no need to "legally reside" 1/2
Legal residence under Art 16/17 means "residence in accordance with the CRD" i.e. exercising EU free movement rights. EU SS as a domestic right is available for simple continuous residence (whether exercising EU rights or not). And anyone with EU SS gets social assistance 2/3
Even if they would not be eligible under EU law. Govt has accepted c.5,000 people now qualify via EU SS who would have no EU entitlement. It is PSS that is excluded from benefits. PSS also more generous (in terms of right to reside) than EU law, but no social assistance. 3/4
And it that exclusion from social assistance for those with a domestic right to reside under PSS that is being challenged in the Fratila case brought by CPAG, supported by AIRE Centre. The case turns on a CJEU decision called Trojani. Swift J has reserved judgment. END!
Headline is - if you have (or entitled) EU permanent residence you are protected by the WA; but if you have domestic EU SS (a form of indefinite leave to remain) you are currently entitled to benefits even if you have no relevant EU free movement rights.

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More from @thebrieftweet

Thomas de la Mare Profile picture
Dec 7, 2023
I have now read the Safety of Rwanda Bill, an extraordinary document. What makes it so is the combination of 2 factors: the use of conclusive legislative fictions ousting Cts; and the requirement to act even though it will or may breach PIL designed to protect fundamental rights.
Legal fictions - including ones that oust the adjudicative function of the court - are not per se unacceptable from a RoL perspective, though always deserving of close scrutiny and narrow construction: it all depends upon context and unproblematic uses abound (eg in tax).
However, where the use is conclusively to determine fundamental rights contrary to the basic scheme of such rights the context is obviously hugely problematic. Such problem is amplified where the effect is to reverse a recent determination of the very issue by our highest Court.
Read 19 tweets
Thomas de la Mare Profile picture
Mar 24, 2023
I remain convinced that the Cab Rank Rule is entirely the wrong target and a counter-productive one at that for people rightly concerned about how legal experts (in energy, water, planning, in farming or industry, PPPs) use (or don’t use) their expertise.
theguardian.com/environment/20…
The concern of a gross mismatch of expertise and resource is real, make no mistake and this is a particular problem in the field of climate change amongst others (benefits law, consumer law, regulatory law).
A large multinational turning over £bns with an in-house legal team & seasoned external advisors (solicitors barristers with high levels of expertise) will overmatch with external funding many times over a small claimant, an NGO, even an experienced claimant/class claim firm.
Read 17 tweets
Thomas de la Mare Profile picture
Mar 22, 2023
Given all this insistence on the pro Boris camp about complete simulation of court norms, we must assume BJo has not been coached (beyond his opening statement) by his lawyers. For instance, rC9.4 prohibits it in all settings for barristers.
But he will like many witnesses in big litigation have gone through “witness familiarisation” courses - effectively role play to teach how to give evidence, not what evidence to give.
He is now running the classic “how big must be the conspiracy?” line, a key assumption of which is that he was entitled to rely exclusively on advice and had no obligation to question it.
Read 6 tweets
Thomas de la Mare Profile picture
Jul 23, 2022
So, as a barrister specialising in EU law disputes for nearly 30 years in a very wide area of application here is my hot-take on this.Truss vows to scrap remaining EU laws by end of 2023 risking ‘bonfire of rights’ theguardian.com/politics/2022/…
Let's start with the obvious point: it is undeliverable, unless is a sleight of hand (like pretending to repeal the ECA during the transition period and then immediately re-enacting it via EUWA). There are c. 100+ Acts of Parliament and thousands of SIs affected by this.
Some of it is in dry, recondite areas like product or health and safety standards but even here the material can be immensely complex and deciding what to keep, what to amend, what to introduce is a massive issue for affected businesses which make 3, 5, 10 year plans.
Read 19 tweets
Thomas de la Mare Profile picture
Nov 10, 2021
The decision in #LloydvGoogle, and the sole speech of Lord Leggatt, is hugely important for effective access to justice for: (i) mass consumer claims, whether privacy-based or not; (ii) against big tech or other similarly scaled Defendants. These are my takeaways 1/
First, the speech is realistic about the practical impossibility of “opt in” GLO proceedings for modest sums (two figure or low three figure damages): see [25]-[28]; and identifies that the “opt out” CPO model in competition law is designed to address those flaws: [29]-[32] 2/
Second, the speech is open, after an exhaustive historical and comparative review of authority, to the purposive interpretation and reinvigoration of representative proceedings as a means to plug some of the same holes plugged by opt out CPOs. 3/
Read 18 tweets
Thomas de la Mare Profile picture
Nov 4, 2021
OK, having now read the Parliamentary Commissioner report on Owen Paterson, and his summary of complaints against it, I can say if were hearing a 30 min permission hearing: a. I would require a huge amount of persuasion that he had not had a full opportunity to put his case 1/
The submissions he made were obviously legally sophisticated (and pretty ambitious); the pivot of the charges was the objective analysis of his approaches, whether there was a serious wrong (in milk food etc) and whether benefit were conferred/sought for those paying him. 2/
The 17 odd witnesses statements appear likely to be wholly irrelevant to these central issues, as is the fact that his interests were registered. The whole point of the paid advocacy rules is that they impose restrictions that go beyond mere declaration/registration 3/
Read 10 tweets

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