The European Court of Justice has issued an opinion that the UK is guilty of indirect discrimination on the grounds of nationality if it refuses social assistance to an EU citizen who has been granted settled status under the post-Brexit EU Settlement Scheme.

The case relates to a Dutch-Croatian woman living in Northern Ireland whose application for Universal Credit was refused by the Department for Communities in June 2020.

The woman was granted pre-settled status in the UK on the basis of the EU Settlement Scheme.

The woman claimed that the refusal to award social assistance, despite the fact that she was granted a right of residence under the EU Settlement Scheme, constituted different treatment compared to British citizens, and therefore discrimination on the grounds of nationality.

The Appeal Tribunal in Northern Ireland referred the case to the ECJ to determine if it amounted to direct, or indirect, discrimination under Article 18 of the EU treaty, on the basis that EU citizens residing in the UK may be prevented from receiving social benefits due to the legal nature of their right of residence.

In an opinion, Advocate General Jean Richard de la Tour, said that since all of the aspects of the case related to a period either before or during the Brexit transition period, the ECJ was entitled to issue a ruling on the basis of the Withdrawal Agreement.

The case was submitted to the ECJ on December 20 last year, just 11 days before the transition period ended.

The Advocate General said that EU law meant that EU citizens had the right to move and reside freely within member states.

That right should be interpreted as meaning that even an economically inactive person could not be deprived of social assistance, simply on the basis of the legal nature of that person's right of residence.

This would constitute indirect discrimination on the grounds of nationality if it had a greater effect on EU nationals than on UK nationals, the Advocate General said.

It would go "beyond what is necessary to maintain the equilibrium of the social assistance system of the host Member State if the refusal of such assistance has a greater effect on, or affects a greater number of, the nationals of other Member States than those of the host State."

The court held that it would be up to the referring court to decide if the refusal of social assistance had more of an impact on non-nationals, compared to, in this case, British nationals.

The full ECJ judgment will be delivered in several month's time.

In 80% of cases, the final judgment concurs with the Advocate General's opinion.