Blog post by Georgie Rea of the Garden Court Chambers Community Care Team.
Following the Court of Appeal’s ruling in SSWP v AT [2023] EWCA Civ 1307, EU citizens with Pre-settled Status (“PSS”) facing destitution are able to seek access to Universal Credit (“UC”) by relying on the EU Charter of Fundamental Rights (“the Charter”).
This blog explores the reasons for the decision and how the principle may also apply in the context of housing allocation and homelessness applications to local authorities.
(1) Access to the Charter of Fundamental Rights through the Withdrawal Agreement
AT, a Romanian national who had been granted PSS under the EU Settlement Scheme (“EUSS”) applied to the Department for Work and Pensions (“DWP”) for UC when she was rendered destitute after escaping domestic violence with her child.
Under the Welfare Reform Act 2012, UC is only available to those who are “in Great Britain” (s 4(1)(c)). Holders of PSS are, for these purposes, treated as not being “in” Great Britain (reg. 9(1), (2) and (3)(c)(i) of the Universal Credit Regulations 2013 SI 2013/376 (“the UC Regulations”)). Therefore, the DWP refused AT’s application for UC, stating that she was ineligible for support.
AT brought an appeal before the First-tier Tribunal (“FTT”), challenging the eligibility criteria for UC. The FTT found in her favour and the Upper Tribunal (“UT”) dismissed the Secretary of State for Work and Pension’s (“SSWP”) appeal. The Court of Appeal dismissed an appeal against that decision on 8 November 2023, in their decision SSWP v AT [2023] EWCA Civ 1307, and the Supreme Court refused an application for permission to appeal on 7 February 2024, meaning that the Court of Appeal’s decision represents the final legal position.
In her appeal, AT argued, inter alia, that individuals with PSS should be entitled to rely on the Charter even after the end of the Brexit “transition period” (i.e., after 31 December 2020), in an individual assessment of whether UC was necessary to avoid a risk of a violation of Charter rights.
The FTT, relying on Case C-709/20 CG v Department of Communities for Northern Ireland [2022] 1 CMLR 26, to which it was bound by virtue of s5(5) of the European Union (Withdrawal) Act 2018, disapplied reg 9(3)(c)(i) of the UC Regulations. FtJ Newman, therefore, allowed the appeal and set aside the SSWP’s decision, substituting it for a decision that AT was entitled to UC.
The UT, in its decision SSWP v AT (AIRE Centre and IMA Intervening) [2022] UKUT 330 (AAC), dismissed the SSWP’s appeal, confirming that those residing in accordance with EU law before the end of the transition period will fall within the personal scope of the Withdrawal Agreement (“WA”) under Article 10(1)(a), as recognised by the grant of PSS (at [70]). Through this gateway, they maintain their full rights under EU law and are entitled to assert their Charter rights as well as fundamental rights as general principles of EU law. For these people, the Charter passes into domestic law through the “conduit pipe” of the WA (UT decision at [68] and CoA decision at [104]).
In this way, the right to "dignity" under Article 1 of the Charter continues to apply to ensure that a person with a subsisting right of residence can enjoy that right in a manner that is dignified. The UT agreed with the FTT that, where a refusal of UC would mean such a person was exposed to an actual and current risk that they (and any relevant child could) not live in the UK in dignified conditions (without, even for a temporary period, sufficient resources to have adequate food, clothing and accommodation), then the SSWP should award UC.
Further still, once the EU citizen is within personal scope of the WA by way of the PSS, they can rely on the prohibition in Article 12 WA of discrimination on grounds of nationality within the meaning of Article 18 TFEU (at [60]).
The Court of Appeal, in SSWP v AT [2023] EWCA Civ 1307, dismissed the SSWP’s appeal against the decision of the UT, holding that:
- The Charter continues to apply after the end of the transition period (at [113]);
- An individual assessment is required in all cases where a person covered by the WA would otherwise be refused UC on the ground that they do not have a right to reside. (at [149])
- It was open to the FTT to hold that the decision of the SSWP represented a breach of Article 1 and Article 4 of the Charter of fundamental rights in AT’s case (at [175]).
Once an applicant with PSS demonstrates that they are not only within personal scope, but also material scope of the WA (Article 13 WA) and Article 21 TFEU (which is made applicable by cross-reference), they can benefit from the principles of equality and non-discrimination in Article 23 WA. However, access to Article 12 WA is much broader as it applies to all citizens inside personal scope, not just those within material scope of the WA through the exercise of treaty rights. Following SSWP v AT [2023] EWCA Civ 1307, anyone who holds PSS falls within Article 10 WA, the portal through which an individual can get within personal scope of the WA.
In respect of conducting an individual Charter assessment, the Court of appeal was clear that “there is no need for the SSWP to consider the position of every person with PSS. The relevant cohort which defines the scope of the duty are those with PSS who have applied for support, i.e. those at risk of not being able to reside in dignified circumstances” (at [145]). In short, as the principle applies to holders of PSS as a class of persons, anyone with PSS who advances positive facts that they are destitute is entitled to an individual Charter assessment.
By extension, the principle in SSWP v AT, highlighting the gateway to Article 12 for holders of PSS through Article 10, should even extend to those who are not exercising treaty rights, for example, those who obtained PSS as the primary carer of British children (“Zambrano” right to reside), as any person who falls within the personal scope of the WA (Article 10) ought to be able to rely on the WA’s non-discrimination provision.
(2) Application to Housing and Homelessness Assistance
Although SSWP v AT was concerned with the rights of those with PSS accessing welfare benefits, i.e. a cash benefit, the principle should apply in the housing and homelessness context regarding eligibility for housing support under the Housing Act 1996 (HA 1996) i.e. benefits in kind. SSWP v AT highlighted the breadth of personal scope, which should translate to the housing support eligibility criteria outlined in s185 of the HA 1996. Under the HA 1996, eligibility for homelessness assistance and housing support involves a consideration of an individual's right to reside in the UK under domestic law. As set out in s 185(2), those subject to immigration control are ineligible for support, as defined in s115 of the Immigration and Asylum Act 1999.
The point is presently being litigated in C v Oldham Council, which was heard over two days in Manchester County Court in February 2024, with Adrian Berry and Desmond Rutledge of Garden Court appearing for the Appellant, on instruction from Shelter. The judgement will determine the applicability of SSWP v AT to homeless applicants.
Drawing parallels from the SSWP v AT decision, individuals granted PSS under the EUSS could argue that they have a right to an individual Charter assessment, or better still, can rely on Article 12 WA to argue that their exclusion is prohibited discrimination of PSS holders within personal scope of the WA (Article 10 WA) for the purposes of accessing homelessness assistance under the HA 1996.
This notwithstanding, local authorities should not be alarmed by this development, as those with PSS are a declining population; the deadline for applications to the EUSS having passed and fewer people being able to demonstrate a “reasonable ground” for not applying within the deadline, and current holders of PSS becoming settled after five years. Pleading the applicable principles in SSWP v AT when presenting as homelessness should ensure that individuals with PSS are not unfairly excluded from accessing essential housing assistance based on their immigration status.
