Supreme Court refuses permission to appeal in Secretary of State for Work and Pensions v AT [2023] EWCA Civ 1307

8 February 2024

On 7 February 2024 the Supreme Court refused the Secretary of State’s application for permission to appeal in Secretary of State for Work and Pensions v AT [2023] EWCA Civ 1307, on the ground that it raised no arguable error of law. The judgment of the Court of Appeal now stands. The case has major and immediate implications for the rights of EU citizens with pre-settled status. It holds that they have a right to live in the UK in dignified conditions, and they cannot be refused social assistance (such as Universal Credit) if doing so would risk a breach of that right.

Case summary

AT was an EU citizen with pre-settled status and no other right to reside. After she and her young child had escaped domestic violence, she was refused Universal Credit on the basis that she had not demonstrated a qualifying right to reside and as such was ineligible. AT successfully challenged the refusal in the First-tier Tribunal and Upper Tribunal.

The UT decided that the right to dignity under Article 1 of the EU Charter of Fundamental Rights continued to apply in certain respects after the UK’s withdrawal from the EU. It held that a person with a subsisting right of residence must be able to exercise their right of residence in a dignified manner.

The Court of Appeal agreed. It found:

1. The Charter continues to apply after the end of the transition period, within limits, by virtue of Article 4 Withdrawal Agreement and section 7A EU (Withdrawal) Act 2018. The residence rights set out in Article 13 of the Withdrawal Agreement must therefore be construed by reference to the Charter.
2. Applying C-709/20 CG v Department for Communities in Northern Ireland [2022] 1 CMLR 26 (ECJ), state authorities are required to assess whether refusal of benefit will place that individual at risk of violation of their fundamental rights and consider if they will be at risk of living in an undignified manner. If so, support must be made available. It is not enough that alternative support was “in principle” available to AT: effective rights protection required support to be available in reality.

Impact of the decision

The position now is that EU citizens with pre-settled status and no other qualifying right to reside are entitled to be awarded Universal Credit where denial of benefit would risk them being unable to live in dignified conditions. UK social security regulations which provide to the contrary must be disapplied to the extent necessary, as inconsistent with the Withdrawal Agreement.

Welfare rights advisers have reported that the DWP and some tribunals had been staying certain decisions about entitlement to Universal Credit pending the resolution of AT. All those cases should now be unstayed, and decisions on future cases should be made without delay.

AT is also important for its rejection of the proposition that one public authority can ignore a risk of breach of fundamental rights simply by pointing to another public authority with a discretionary power to step in. In the instant case, AT had not been provided with any significant financial assistance by her local authority. The Secretary of State argued that AT’s remedy was (instead of him having to award her universal credit) judicial review of the local authority’s failure to exercise its Children Act powers to provide financial support. That argument was rejected at every level.

For further guidance, see resources by Child Poverty Action Group and EU Rights Hub (University of York).

The judgment of the Court of Appeal can be found here.

Tom Royston acted for AT, instructed by Claire Hall and Martin Williams at Child Poverty Action Group, and led by Thomas de la Mare KC. Tom and Thomas also acted in CG, instructed by Law Centre NI.

This article was written by GCN pupil barrister Alexa Thompson.