The problems faced by pre-settled status holders who cannot show a qualifying right to reside when trying to access benefits have been dragging on for several years. Notwithstanding their lawful immigration status, the Department for Work and Pensions (DWP) Regulations treat them as a person not in the UK and therefore not eligible for most benefits (universal credit being the typical example).

The Court of Justice of the European Union ruled on the issue in C-709/20 CG v Department for Communities in Northern Ireland, which was then used by the Supreme Court in Fratila and another v Secretary of State for Work and Pensions [2021] UKSC 53, to side with the DWP. But the Supreme Court failed to engage with one of the key points made by the court in CG; that the EU Charter of Fundamental rights is in play for EU citizens resident in a member state under EU law and therefore, the denial of benefits to someone not resident under the conditions of the Citizens’ Rights Directive could be a breach of their Charter rights.

The DWP has consistently maintained the Charter has no applicability in such cases since the end of the transition period on 31 December 2020 when EU law ceased. Given this stance and the Supreme Court ruling avoiding this issue, arguments about the Charter’s relevance as set out in CG were bound to come around again, leading us to the decision of the Upper Tribunal in SSWP v AT (Aire Centre and IMA Intervening) [2022] UKUT 330 (AAC). It should be said that this case is only the first decision on this issue. The Upper Tribunal has granted permission to the DWP to appeal to the Court of Appeal, and the Court of Appeal had already agreed to consider the issue in other appeals (the appeals may now be heard together). The excellent Charlotte O’Brien has helpfully charted this history in greater detail. 

To Charter or not to Charter?

The parties agreed that AT did not have a qualifying right to reside for the purposes of accessing universal credit. The arguments turned on whether she could rely on the Charter in the same way the CJEU found that CG could. CG was in an almost identical position to AT, with the exception that CG’s universal credit refusal came before the end of the transition period.

The DWP argued that since the end of the transition period the judgment in CG had no application in terms of the Charter. CG also did not require the DWP to carry out an individual assessment of their circumstances, as a result of there being other sources of state support to which they were in principle entitled.

Given the tribunal was charged with confirming the relevance of the Charter post-transition period, the Independent Monitoring Authority (IMA) and the AIRE Centre intervened with submissions on the correct position under the Withdrawal Agreement.

AT, the IMA and the AIRE Centre submitted that the Withdrawal Agreement incorporated the Charter whereas the DWP said otherwise. The Upper Tribunal stated:  

“Article 4(3) of the [Withdrawal Agreement] provides that provisions of the [Withdrawal Agreement] “referring to Union law or to concepts or provisions thereof” are to be “interpreted and applied in accordance with the methods and general principles of Union law” and the definition of “Union law” in Article 2 includes the Charter. So, the “methods” in accordance with which the provisions of the WA are to be interpreted and applied include those of the Charter.”  

A conclusive yes, then; the Withdrawal Agreement incorporates the Charter. However, for a person to invoke the Charter then need to be resident under the Withdrawal Agreement and subject to a decision that falls within the rights protected.

Residence under the Withdrawal Agreement

Based on the reasoning in CG, the Upper Tribunal found that AT exercised her rights under to Article 21 of the Treaty on the Functioning of the European Union to move to the UK when EU law applied and was granted pre-settled status under national provisions. She was therefore a resident under the Withdrawal Agreement. Article 13 of the Withdrawal Agreement considers residence rights. This Article modified the Article 21 right to move and reside freely to just reside freely. For those exercising their right to reside freely having moved before the end of the transition period, the Withdrawal Agreement meant they can rely on the part of their Article 21 rights which entitled them to continue to reside in the UK:

“CG shows that the right continues to generate legal effects even when the residence does not comply with the conditions in the [Citizens Rights Directive], at least for those who have a right of residence granted under national law.”

With CG accepted as applying to AT’s situation, the question became whether CG required an individual assessment of a benefit claimant’s circumstances to avoid breaching their Charter rights.

Individual assessment

Looking at who might need an individual assessment, the tribunal observed that “[t]he pool of potential claimants to whom any assessment obligation might apply is a limited one and will diminish as they either progress to settled status (which carries with it an entitlement to means-tested benefits) or leave the UK”.

The tribunal looked at case law relating to Charter rights to determine what should be required by way of an assessment. Although CG does not direct how a Member State should discharge the responsibility to ensure that there is no breach of Charter rights, it is mandatory for the competent authority to carry out an assessment. Therefore the DWP assessment must be an individualised one undertaken by reference to the facts of the claimant’s case to ensure refusal of social assistance does not expose people to an “actual and current risk” of a violation of their rights.

The DWP attempted to argue the generic possibility of accessing other forms of support that were not universal credit is sufficient to guarantee that Charter rights would not be breached. They used the example of support from a local authority under Section 17 of the Children Act 1989.  But the Tribunal rejected this submission. Section 17 support is notoriously varied in its availability and such an approach would not meet the requirement of an individual assessment. CG required that alternative support is only relevant if a person “may actually and currently” benefit from them, which rules out support that requires a long application process or appeal. Whether such alternative support exists is a question of fact.

Whilst acknowledging the administrative burden an individual assessment will place on the DWP (and probably the First-tier Tribunal), the Upper Tribunal noted that there are other situations such as universal credit hardship payments, where personalised assessments are undertaken.

The Upper Tribunal dismissed the DWP’s challenge that the Charter did not apply to post-transition period benefits claims. It found that the Withdrawal Agreement maintained certain Charter rights for persons within the scope of the Agreement. The original refusal to grant universal credit based on domestic regulations was overturned.

The Child Poverty Action Group who brought the case on behalf of AT have produced a note for welfare rights advisers assisting pre-settled status holders without a qualifying right to reside. The note covers amongst other things, factors to be taken into account when considering the test for whether people are at risk of not having sufficient resources to meet their most basic needs.