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EU nationals with pre-settled status can rely on EU Charter of Fundamental Rights to obtain Universal Credit

20 December 2022

Tom Royston

A three-judge panel of the Upper Tribunal has held that AT, an EU national with pre-settled status (limited leave to remain) but no qualifying EU right to reside in the UK for the purposes of universal credit, is entitled to rely upon the EU Charter of Fundamental Rights even after the end of the Brexit “transition period” (ie after 31 December 2020).

Child Poverty Action Group brought the case on behalf of AT who had fled her home along with her young daughter, following domestic abuse, with no cash at all. She was temporarily placed in a hotel and then went to a refuge run by a charity. After arriving at the refuge, her resources comprised £200 in a bank account, a £25 voucher and £15 cash from a fellow refuge resident. She was receiving child benefit of £84.20, paid every 4 weeks. Any child maintenance she received from her child’s father was irregular and insufficient to support the basic needs of herself and her young child, so she made an application for universal credit, which was refused.

AT’s witness evidence to the FtT included the statement that:

“I feel like a bad mother. I love [my daughter] very much and would do anything I could not to have to see her enduring this situation but the fact there is nothing I can do makes me feel I am failing. Not being able to provide basic necessities for my daughter, let alone anything that could be called a treat, whilst she watches what other children have and suffers from an inadequate diet, is terrible. I often cry about the situation. My own mental health has suffered.”

The Upper Tribunal agreed with the First-tier Tribunal and Child Poverty Action Group that where a refusal of universal credit would mean such a person was exposed to an actual and current risk that they and their child could not live in the UK in dignified conditions, then the Secretary of State for Work and Pensions (“SSWP”) should award universal credit.

An actual risk of not being able to live in the UK in dignified conditions was held to mean a risk of being without, even for a temporary period, sufficient resources to have adequate food, clothing and accommodation (including heating for that accommodation).

In this case, AT’s support worker at the refuge had attempted to secure support from the local authority for AT but minimal support was provided and she continue to reside in the refuge, supported by the charity. In its judgment, the Upper Tribunal found that the mere theoretical availability of section 17 Children Act support from AT’s local authority did not mean her application for universal credit could be refused: what mattered was whether any Children Act support had actually and currently been provided at such a level so as to mitigate the risk.

An anonymity order is in place: Pursuant to rule 14(1) of the Tribunal Procedure (Upper Tribunal) Rules 2008, there is to be no disclosure or publication of any matter likely to lead members of the public to identify the Respondent, her daughter, her support worker or the body providing the refuge used by the Respondent without the permission of a judge of the Upper Tribunal. Breach of this order may constitute contempt of court and be punishable by a fine or imprisonment.

The case is SSWP v AT (Aire Centre and /MA Intervening) [2022] UKUT 330 (AAC).

More information on the case is available at: https://cpag.org.uk/welfare-rights/resources/test-case/destitute-eu-nati…

A copy of the judgment is available at: https://cpag.org.uk/sites/default/files/files/2022-12-12-SSWP-v-AT-decis…

The SSWP has been granted permission to appeal to the Court of Appeal by the Upper Tribunal.

Tom de la Mare KC (Blackstone Chambers) and Tom Royston (Garden Court North) were instructed to represent AT in the Upper Tribunal.

This article is taken from the original written by Child Poverty Action

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