Destitute EU nationals with PSS can rely on EU Charter of Fundamental Rights to obtain Universal Credit
Case Name: SSWP v AT (AIRE Centre and IMA Intervening) [2022] UKUT 330 (AAC); SSWP v AT (AIRE Centre and IMA intervening) [2023] EWCA Civ 1307
Current Status: Judgment of the Upper Tribunal three judge panel dismissing the Secretary of State’s appeal against the decision of the First-tier Tribunal was given on 12 December 2022. The Secretary of State applied for permission to appeal to the Court of Appeal on 12 December 2022 and the Upper Tribunal granted permission to appeal on three grounds with the written ruling on permission to appeal issued on 13 December 2022. The case was heard in the Court of Appeal from 8 - 10 March 2023. A further hearing took place on 10 October 2023. The judgment of the Court of Appeal was handed down on 8 November 2023. 
The Court of Appeal judgment is available here.
Overview
Acting for AT, CPAG obtained a judgment from a three judge panel of the Upper Tribunal which held that AT, an EU national with pre-settled status but no qualifying EU right to reside for the purposes of universal credit, is entitled to rely upon the EU Charter of Fundamental Rights even after the end of the Brexit “transition period” (ie after 31 December 2020). The Upper Tribunal agreed with CPAG that where a refusal of universal credit would mean such a person was exposed to an actual and current risk that they and their child could not live in the UK in dignified conditions, then the Secretary of State for Work and Pensions (“SSWP”) should award universal credit. An actual risk of not being able to live in the UK in dignified conditions was held to mean a risk of being without, even for a temporary period, sufficient resources to have adequate food, clothing and accommodation (including heating for that accommodation). Furthermore, the mere theoretical availability of section 17 Children Act support did not mean such applications for universal credit could always be refused: what mattered was whether any Children Act support would actually and currently be provided at such a level so as to mitigate the risk. The claimant will need to show that they are unable to work. The Secretary of State was granted permission to appeal against the Upper Tribunal decision and the matter was heard by the Court of Appeal from 8th to 10th March 2023.
Background facts
AT’s circumstances
AT is a Romanian national. After she came to the UK in August 2016, she lived with her then partner, V, also a Romanian national. Their daughter, D, was born in the UK in February 2018. In June 2018, she returned with V to Romania for what he said was a holiday. When they got there, he cut up her passport and told her she must remain in Romania with D while he returned to the UK. AT obtained new travel documents. In October 2020, V returned to Romania and brought AT and D back to the UK with him. In December 2020, AT was granted Pre-Settled Status (“PSS”) under the EU Settlement Scheme (“EUSS”), pursuant to Appendix EU of the Immigration Rules (“Appendix EU”).
In January 2021, there was an incident at the home AT shared with V. The police were called and V was arrested, though not charged. AT and D were temporarily placed in a hotel and then went to a refuge run by a charity. In her evidence before the First-tier Tribunal (“FtT”), AT explained that she had been subjected by V to domestic violence throughout the course of their relationship, including when she had been pregnant. V had controlled all aspects of her life. After their return to the UK, he had prevented her from working by refusing to pay for childcare and had cut up AT’s and D’s passports. He had made threats to kill her, in particular if she moved back to Romania. He had also held her captive and subjected her to emotional and physical abuse.
AT left the home she shared with V with no cash at all. After arrival at the refuge, her resources comprised £200 in a bank account into which her child benefit had been paid, a £25 Tesco voucher and £15 from a fellow resident. She continued to receive child benefit (£84.20 paid every 4 weeks). This was not enough to cover her and D’s basic needs. So, she applied for universal credit (“UC”).
AT’s witness evidence to the FtT included the statement that:
“I feel like a bad mother. I love [D] very much and would do anything I could not to have to see her enduring this situation but the fact there is nothing I can do makes me feel I am failing. Not being able to provide basic necessities for my daughter, let alone anything that could be called a treat, whilst she watches what other children have and suffers from an inadequate diet, is terrible.
I often cry about the situation. My own mental health has suffered. A particular difficulty, is not knowing whether I will receive child maintenance, or whether I might be able to get a voucher. That makes it very hard to work out how to use any funds I do have at a particular point. My mood gets worse whilst waiting to see if a payment will materialise…”
AT’s UC claim and background to the appeal
On 15 February 2021, AT’s claim for UC was refused by the SSWP because AT had not demonstrated any qualifying right to reside. This was because UC is only available to those who are “in Great Britain” (s.4(1)(c) of the Welfare Reform Act 2012) and persons granted limited leave to remain (PSS) in the United Kingdom pursuant to Appendix EU are for these purposes treated as not in Great Britain (reg. 9(1), (2) and (3)(c)(i) of the Universal Credit Regulations 2013 (“the UC Regulations”: SI 2013/376)).
AT appealed to the FtT. Her appeal was heard in May 2022, by which time CPAG were instructed. FtT Judge G. Newman (“the judge”), in a decision dated 31 May 2022, allowed the appeal, concluding that, without UC, AT and D would not be able to live in dignified conditions. In the light of the judgment of the Court of Justice of the EU (“CJEU”) in Case C-709/20 CG v Department of Communities for Northern Ireland [2022] 1 CMLR 26, the judge considered himself bound by s. 5(5) of the European Union (Withdrawal) Act 2018 (“the 2018 Act”) to disapply reg. 9(3)(c)(i) of the UC Regulations. He therefore allowed the appeal and set aside SSWP’s decision, substituting a decision that AT is entitled to UC.
SSWP appealed against the judge’s decision on the ground that the judge was wrong to regard CG as applicable to those with PSS after 31 December 2020, the end of the “transition period” in the Withdrawal Agreement between the UK and EU on the UK (“the WA”) and further that CG properly understood never required an individual assessment of a claimant’s position because s.17 Children Act support would always provide protection against breach of fundamental rights.
SSWP agreed to pay AT universal credit on an ongoing basis once her appeal had been allowed by the FtT.
Judgment
The case was heard by a three judge panel of the Upper Tribunal at a two day hearing on 15 and 16 November 2022.
In a unanimous judgment, the Upper Tribunal dismissed the Secretary of State’s appeal.
The judgment is available here.
An oral application for permission to appeal was made by the Secretary of State at a hearing on 12 December 2022. Permission to appeal to the Court of Appeal was granted by the Upper Tribunal on three grounds:
Ground 1: whether the UT erred in holding that the Charter applied in AT's case by reason of the WA.
Ground 2: whether the UT erred having regard to existing caselaw of the CJEU in failing to hold that the CJEU's decision in Case-709/20 CG v DfC did not require an individualised assessment in every case, alternatively only required an assessment in respect of those considered "vulnerable"; and
Ground 3: whether the UT erred in its approach, in applying the test required by CG, to the availability of other forms of state support, in particular (though without limitation) support under Children Act 1989, s. 17.
Court of Appeal
SSWP renewed an application for permission to appeal on a fourth ground to the Court of Appeal and permission was granted on 6 February 2023. Appeal ground 4 concerns the threshold for a violation of Article 1 of the Charter and whether the FtT applied the correct threshold.
The Court of Appeal in a judgment dated 8 November 2023, dismissed the Secretary of State's appeal against the decision of the Upper Tribunal. The Court of Appeal have refused the application for permission to appeal made by the Secretary of State against its decision.
The Court of Appeal gave permission for the Secretary of State to add a fourth ground of appeal (concerning the bar for the triggering of the duty of protection and whether on the facts that threshold was met). The judgment then rejects all four of the Secretary of State's grounds of appeal against the Upper Tribunal decision, holding that:
1. Ground 1: the Charter of Fundamental Rights does apply (and continues to do so after the end of the transition period).
2. Ground 2-3: an individual assessment is required in all cases where a person covered by the Withdrawal Agreement would otherwise be refused universal credit on grounds they do not have a right to reside and the Upper Tribunal did not err in the approach it took to other forms of support potentially available to AT. In particular it was not sufficient that section 17 Children Act 1989 support was in principle available (paras 133-143).
3. Ground 4: the FTT decision on whether there was a breach of article 1 and 3 of the Charter was unimpeachable and the Upper Tribunal had been right not to disturb it.
Child Poverty Action Group represented AT before the FtT and UT, and continued to represent her before the Court of Appeal.
Tom de la Mare KC and Tom Royston were instructed by CPAG to represent AT in the Upper Tribunal and the Court of Appeal.
The Independent Monitoring Authority for the Citizens’ Rights Agreements (IMA) and the AIRE Centre were granted permission to intervene by the Upper Tribunal and were also granted permission to intervene before the Court of Appeal.
What can claimants in a similar position do?
A note for welfare rights advisers on how to use the judgment to assist their clients is available here (version 2 updated 24th January 2023). This note also explains when to use the various templates we have prepared to assist advisers in getting AT applied and getting cases decided whilst the AT appeal is pending and provides links to those templates.
Note: we have not updated this note since the Court of Appeal judgment. It is quite possible that the Secretary of State will now seek permission to appeal to the Supreme Court from that Court. if that happens then the position does not change- advisers can still argue that AT should apply pending any decision on that application and (if permission is granted) the further appeal , if not to apply AT would result in hardship.
Unfortunately CPAG cannot offer advice services to members of the public. If you are a member of the public you can contact your local Citizens Advice Bureau or Law Centre or search for an advice centre near you at Advice Local. Once you have an adviser they can contact CPAG for further advice on how best to assist you, if needed.
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