‘No room for doubt’: Pre-settled status, benefits and the Charter of Fundamental Rights

In the latest twist in the epic saga of pre-settled status and benefits, a three-judge panel of the Upper Tribunal has ruled that people with pre-settled status are protected by the Charter of Fundamental Rights of the European Union.

In the SSWP v AT judgment, handed down in December 2022, the Upper Tribunal makes clear that the CJEU case C-709/20 CG does apply to cases where people claim benefits after the end of the Brexit transition period.

Where did the issue of the Charter come from?

Case C-709/20 CG, you may remember, was the case in which the Court of Justice of the EU scuppered the Fratila litigation in the UK – the Court of Appeal had found the exclusion of pre-settled status from the relevant types of right to reside for eligibility for benefits to be discriminatory on the ground of nationality. But, the CJEU came riding to the un-rescue, to announce that people with pre-settled status, before the end of the transition period, were not protected from nationality discrimination by EU law – so the question of whether the rules were discriminatory was academic. This made the conclusion of the UK Supreme Court in the Fratila appeal a foregone conclusion.

The CJEU did however toss the claimants a lifeline in the form of the Charter of Fundamental Rights; unlike previous cases where claimants had no right to reside, people with pre-settled status had a form of right to reside – not one that would entitle them to equal treatment – but one that brought them within the scope of the Charter.

As such, the Court concluded, decision makers could only refuse benefits to people with PSS ‘only after ascertaining’ that their fundamental rights were not placed at risk by such a decision.

How did the UK government implement CG?

Weeeeeeell… it didn’t. The official line of the government seemed to be that there was ‘nothing to see here’. In a memo to decision makers following the CG case, the government noted that the UK Supreme Court decided that it could not consider new arguments based upon the Charter, (which was because the arguments were not raised at an earlier point, and raised issues of fact), but made no mention of the duty created in CG for decision makers to assess the risk to Charter rights of refusing benefits to people with pre-settled status.

We raised this issue, and the Child Poverty Action Group wrote to the DWP legal team to ask for any guidance on the application of CG. The DWP responded that “the Secretary of State does not consider that this is required, either as a result of the judgment in CG or otherwise”.

So where did that leave claimants?

With a number of unanswered questions. What duties does CG create with regard to the Charter of Fundamental Rights? What is the appropriate threshold for finding an unacceptable risk to dignity? Who should undertake that assessment and when? Should it be Universal Credit decision makers, or is it within the bounds of CG to continue with automatic rejections where a person with pre-settled status but no other right to reside applies for benefits, and assume that local authorities will consider fundamental rights as and when someone applies to them for discretionary support?

Interestingly, the latest litigation focuses on the application of CG, and thus the application of the Charter, to cases where someone claims subsistence benefits after the end of the Brexit transition period – with an implied acceptance on the part of the Secretary of State, that contrary to the stance in his own guidance, CG did create obligations for pre-transition cases (‘SSWP has 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’). That said, the arguments made in AT suggest that even where the Charter was engaged, the Secretary of State rejects the idea that it actually means anything.

What was the AT case about?

AT involves a claimant who arrived in the UK before the transition period ended, so was entitled to, and received, pre-settled status. She and her daughter left their home, with no cash, as a result of domestic abuse. They came to a refuge, with £200 of child benefit in a bank account, a £25 supermarket voucher, and were given £15 by a fellow resident. The only continuing source of support they both had was Child Benefit (£84.20 every 4 weeks), and so AT applied for Universal Credit. This was refused, in accordance with the 2019 regulations which excluded pre-settled status from being a qualifying right to reside. Her appeal to the First tier Tribunal was successful, as the FtT judge found that CG did create an obligation to consider Charter rights, and that without UC, AT and her daughter would not be able to live in dignified conditions, giving detailed findings of fact to support that conclusion; the Child Poverty Action Group’s summary of the case includes excerpts from AT’s witness statement.

The Secretary of State for Work and Pensions appealed this decision to the UT on the following grounds:

That the Charter does not apply at all to cases that post-date the Brexit transition period;
That even if it did, the Charter does not require an individualised assessment – just a generic nod to the scheme of theoretically available support was enough;
And that the FtT erred in law in finding AT at risk of living in undignified conditions.

The claimants resisted all three grounds, and also raised further arguments that were treated as outstanding issues – that is, the UT deferred hearing arguments on those issues, and in the end was able to make a decision without engaging with them. Those deferred points were: (i) whether the claimants were protected by the non-discrimination provisions under the Withdrawal Agreement; (ii) whether there was discrimination contrary to Article 14 of the ECHR; and (iii) whether the UC regs were enacted outside the bounds of the Secretary of State’s powers (‘ultra vires’ under the Welfare Reform Act 2012. It remains to be seen whether these issues will resurface in the near future.

What did the Upper Tribunal say?

The three-judge panel found against the Secretary of State on all three grounds of appeal – the Charter applies; it requires an individual assessment; and there was no error of law in the FtT’s assessment of risks to dignity.

In more detail…

The Charter applies… the Charter applies because Article 13 of the Withdrawal Agreement was engaged (the provision on temporary rights to reside) by the holding of pre-settled status. The UT agreed with the respondent and the interveners (the AIRE Centre and the Independent Monitoring Authority both intervened in support of the respondent), that Article 13(1) WA made (modified versions of) certain EU provisions applicable to those who fall within the personal scope of the Withdrawal Agreement (the personal scope being defined by Article 10 WA). That included Article 21 TFEU. This has to be a modified form, as Article 21 TFEU confers a right to ‘move and reside’, whereas Article 13 is limited in scope to residence (either in the UK or the EU). ‘Nonetheless’, the tribunal decided, ‘the language of Article 13 shows that it was intended to confer on those within the personal scope of the WA a narrower and more limited form of the Article 21 TFEU right’.

That being so, the Withdrawal Agreement gives further guidance on how to interpret and apply that right - Article 4(3) WA says that where the WA refers to provisions of Union law, they should be “interpreted and applied in accordance with the methods and general principles of Union law”, and the definition of “Union law” in Article 2 WA includes the Charter. Therefore, taken together, these provisions mean that the Charter is applicable to rights contained in the WA, for people within the scope of the WA. Moreover, the tribunal noted that a Member State applying the WA to a British national, would be bound by the Charter of Fundamental Rights, and the WA establishes a principle of reciprocity.

An individualised assessment is required… The Upper Tribunal delivered a robust conclusion on this point, stating that the CJEU in CG clearly required an individualised assessment of the risks to an applicant’s dignity (rather than a reference to a general scheme of sources of support, or rather than only having to assess in cases of pre-determined-vulnerability):

“the language used by the CJEU in CG leaves no room for doubt. The references to “the citizen concerned and the children for which he or she is responsible” and “that citizen” make it clear that the exercise must be an individualised one, undertaken by reference to the facts of the claimant’s case.” [127].

‘No room for doubt’ is an unusually strong formulation in a judicial context. It would seem the tribunal was completely unpersuaded by the Secretary of State’s submissions to the contrary. Nor could the suggestion that only vulnerable applicants were entitled to a Charter assessment be supported – because one could only establish vulnerability by doing such an assessment; hence the tribunal did ‘not consider that the CJEU could have intended to use it as a gateway condition’.

In reaching this conclusion, the tribunal noted a fear of creating administrative burdens, but found that there was not a significant issue of opening the floodgates for Charter assessments because of the finite, diminishing, and temporally limited nature of the cohort affected:

“The 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.” [114].

So that leaves us so far with, people with pre-settled status and within the scope of the Withdrawal Agreement are entitled to protection from the Charter of Fundamental Rights, and that means an individualised assessment of whether refusal of benefits would jeopardise their right to live in dignified conditions. The next question is – did the Tribunal decide appropriately what constitutes a risk to that right?

The Tribunal did not err in deciding the right to dignity was at risk… The UT found that the FtT had followed case law on the threshold for finding that someone’s dignity was imperilled – essentially by looking for evidence of ‘extreme material poverty’, and whether a person could not meet their “most basic needs”. These would ‘vary from person to person, though typically they will include housing (which we take as including a basic level of heating adequate for a person’s health), food, clothing and hygiene’.

In particular, the FtT had not erred in considering other (‘non-mainstream’) sources of support the Secretary of State had argued were available, and finding that they were not actually and currently available. The Secretary of State relied heavily upon the theoretical availability of local authority support under S17 of the Children Act 1989. The UT found that the CJEU had focused on whether someone could ‘actually and currently’ benefit and so a ‘a generalised assertion as to the availability in principle of support under s.17’ was not enough. In fact, the FtT had heard evidence that AT ‘had sought and failed to obtain any ongoing support from her local authority’ [150]. AT’s support worker had challenged this, but social services had closed the case. The judge had rightly focused on the ‘concrete factual position’ and this provided a ‘complete answer to SSWP’s case that s. 17 of the Children Act 1989 ought to have provided a route by which support could be given to AT and her child’, adding in what is surely a judicial quote for the ages, ‘Legal theory had to yield to reality.’

Is there a possible loophole for the SSWP here?

Maybe. The UT proceeded on the basis that it was uncontested that the claimant was exercising her rights under the Withdrawal Agreement. She was exercising a right to reside under Article 6 Directive 2004/38 at the point that the transition period ended (an unconditional right to reside for the first three months), and clearly came within the scope of Article 10 WA. It is not clear how Article 10 WA will be interpreted in the future; SSWP may argue someone had to be exercising a Directive right at the end of the transition period, but the article does not explicitly require that – rather that someone did at some point before the end of transition exercise a Directive right. There is the possibility for broad and narrow interpretations, with the latter potentially carrying extra evidential requirements. Alternatively, it may be the view of the courts that having discharged the necessary requirements to obtain pre-settled or settled status means that a claimant has satisfied the government that they come within the ambit of the Withdrawal Agreement.

Wasn’t there another case on the way to the Court of Appeal?

There was. A v Barnet dealt with a rejected claim for housing assistance from an EU national with pre-settled status. However, the London Borough of Barnet have conceded the case on the ground that the appellant had a right to reside based on Case C-507/12 St Prix (having retained worker status during a period of maternity leave), and having retained her status as worker was entitled to rely on Case C-480/08 Teixeira to establish a right to reside as the primary carer of a child in education. The claimant was thus not treated as someone whose only right to reside was pre-settled status. As a result, although Barnet did not concede the second ground, that she was entitled to rely on her Charter rights, the parties agreed that the point might be academic, and the Court issued an order on 14 February 2023 granting the appeal on the St Prix ground.

Where is AT now?

So, while AT and Barnet were due to be heard back-to-back at the Court of Appeal, it is now just AT winging its way in their direction, on 8th-10th of March. Permission to appeal was granted initially on three grounds – echoing those on which the Secretary of State appealed to the UT: Arguing (i) that the Charter does not apply post-transition; (ii) that an individualised assessment is not required, or in the alternative is only required for vulnerable claimants; and (iii) the lower courts made an error of law in how they considered the relevance of other sources of support.

The Secretary of State sought permission to add a fourth ground – whether the UT erred in its approach to the appropriate threshold for establishing a risk to dignity. The Court of Appeal has granted permission to appeal on this ground as well.

What happens to other AT/Fratila type cases?

We expect that DWP will stay/stockpile cases, so not make decisions, until after the test case is resolved. But this could take a long time – the Court of Appeal hearing is soon, but we do not know how long it will be before judgment is handed down, and then whether there will be another appeal to the UK Supreme Court, and/or whether either court will seek guidance through a reference to the CJEU.

While a decision to stay does not attract a right of appeal, the Secretary of State’s own policy, embodied in guidance, states that if a claimant is suffering hardship, there should be a decision on the benefit claim, and any award must then be paid.

Two takeaway points: first, advisers can try to nip a potential stockpiling decision in the bud, by advising claimants to include information about hardship suffered at the point of claim, and explicitly request that their case is not stockpiled. Second, if a decision is made to stockpile, advisers can support claimants to challenge the decision and ask the decision-maker to reconsider it. The guidance requires reconsideration in such circumstances.

It is worth noting that most, if not all, cases on which a claimant is reliant upon the UT findings in AT will be cases in which there is hardship by definition - that is evidence of extreme material poverty and a risk to the right to live in dignified conditions (which suggests that if the DWP do stockpile such cases by default, that would be problematic as a matter of policy). This means that advisers could, in such cases, have grounds to argue that stockpiling would be an inappropriate use of the Secretary of State’s powers.

On the questions of which cases can benefit from AT, the evidence required of hardship, and steps claimants and advisers should take, see the excellent guidance produced by the Child Poverty Action Group.

But what about CG-type cases?

Let’s not forget that there are still cases where people claimed benefits before the end of the Brexit transition period – so there is no dispute that at the material time EU law, the Charter of Fundamental Rights, and the findings in CG should all apply (compared to the dispute in AT). We have however seen evidence that such a case might be stockpiled behind AT. In this situation, (and others where the outcome should not actually depend on the outcome of AT), advisers can support claimants to ask the decision maker to lift the stay on the ground that it has been improperly applied, because AT will not affect the case in question.

What if we cannot shift the stay?

Then it is worth considering a pre-action protocol letter with a view to possible judicial review.

Help!

If you are an adviser who would like second-tier help and support for your client’s case, please get in touch: law-eurightshub@york.ac.uk