The Court of Appeal has dismissed the government’s appeal in Secretary of State for Work and Pensions v AT (AIRE Centre and Independent Monitoring Authority intervening) [2023] EWCA Civ 1307, meaning that people with pre settled status under Appendix EU are able to access universal credit in circumstances where they do not also have a qualifying EU right to reside. We covered the Upper Tribunal (Administrative Appeals Chamber)’s decision which was under appeal here.

The grounds of appeal to the Court of Appeal

The Secretary of State argued that the Charter of Fundamental Rights of the European Union does not apply under the Withdrawal Agreement and that it does not therefore flow into domestic law. The court rejected this, stating at [113]:

The Charter applies to Article 13 of the Agreement and to Article 21 TFEU which is made applicable by cross-reference. Those rights are directly effective. Both must be construed by reference to the Charter. Both have become part of domestic law through section 7A EU(W)A 2018 and this includes their application in conjunction with the Charter. The relevant provision of the Charter is Article 1 as it applies to AT (in conjunction with Articles 7 and 24 as it applies to her and her child). Article 1 is not legally coextensive with Article 4 (and Article 3 ECHR), albeit that in some and possibly many cases there will be a significant evidential overlap. The benchmark determining whether there is a breach of Article 1 (alone and/or in conjunction with Articles 7 and 24) is the approach taken by the CJEU in CG.

The second and third grounds of appeal focussed on different aspects of the duty to provide protection. The Secretary of State argued that compliance with the Charter was achieved by the UK setting up a “in principle” framework of support (including the existence of section 17 support under the Children Act 1989) that could be available for a person with pre settled status. The court also rejected these arguments, at [123]:

There are a number of answers to the SSWP’s “in principle” or “statutory framework” submission. First, it is inconsistent with the judgment of the CJEU in CG. Secondly, it is inconsistent with Article 4(1) of the Withdrawal Agreement. Thirdly, it is inconsistent with principles governing how fundamental rights are required to be protected. Fourthly, the system as presented by the SSWP does not seem even in principle to be capable of protecting a person such as AT. 

The fourth ground of appeal was regarding the threshold for triggering the duty of protection. The Secretary of State argued that there is a high threshold that must be met in order for a breach to be found and that the threshold had not been met in AT’s case. The Court of Appeal dismissed this point, stating “I do not consider that this complaint is arguable” and there was no error of approach in the tribunals’ approach.

Conclusion

This case may yet make its way to the Supreme Court. In the meantime, Child Poverty Action Group have produced a briefing on the litigation and a note on how welfare advisers can use the judgment to assist their clients.