SSWP v AT (Aire Centre and IMA Intervening)

After the transition period, the Withdrawal Agreement continued to confer a modified form of the right to reside under Article 21 TFEU on persons within its personal scope. Where that right is relevant to a claim for universal credit, the decision-maker must act compatibly with relevant Charter rights, including human dignity and the best interests of children.

Under CG, refusal of social assistance requires an individualised, forward-looking assessment of whether refusal creates an actual and current risk that the claimant or dependent children cannot meet their most basic needs. Other support may be considered only where the claimant can actually and currently benefit from it. The Upper Tribunal dismissed the appeal because the First-tier Tribunal had made that assessment and committed no material error of law.

AT, a Romanian national with pre-settled status, fled domestic violence and applied for universal credit after entering a refuge with her daughter. The Secretary of State refused the claim because limited leave under Appendix EU was treated as residence outside Great Britain under regulation 9(3)(c)(i) of the Universal Credit Regulations 2013.

The First-tier Tribunal allowed AT’s appeal, relying on CG v Department of Communities for Northern Ireland and section 5(5) of the European Union (Withdrawal) Act 2018. The Secretary of State appealed. The parties agreed that section 5(5) did not authorise disapplication, but AT argued that section 7A of the 2018 Act, giving domestic effect to the Withdrawal Agreement, required the same result. The central issues were whether the Charter applied after the transition period and whether CG required an individualised assessment.

1. Appeal dismissed. The First-tier Tribunal’s decision of 31 May 2022 involved no material error of law.
2. Articles 10 and 13 of the Withdrawal Agreement confer on persons within its personal scope a narrower form of the Article 21 TFEU right to reside. The right is limited to residence in the host state, but it continues to generate legal effects even where residence does not satisfy the conditions in the Citizens’ Rights Directive.
3. Article 4(3), read with Article 2 of the Withdrawal Agreement, requires provisions referring to Union law or its concepts to be interpreted and applied using the methods and general principles of Union law. Accordingly, when the Secretary of State applied the modified Article 21 right in determining AT’s universal credit claim, he had to comply with relevant Charter rights. Articles 1, 7 and 24(2) were capable of applying. Rights linked inseparably to EU citizenship, such as voting rights, did not survive exit: Préfect du Gers was distinguishable.
4. CG requires an assessment in every case within the relevant class. The assessment need not be lengthy or sophisticated, but some information must be gathered. It must be individualised, forward-looking and directed to whether refusal creates an actual and current risk of breach of the claimant’s Charter rights. A theoretical or contingent future source of assistance is insufficient.
5. Support under section 17 of the Children Act 1989 may in principle be considered, including discretionary support, but only if it will actually and currently be made available. Reliance on the theoretical availability of local-authority support, prolonged application procedures, possible legal proceedings, or unreliable charitable assistance cannot discharge the assessment.
6. The First-tier Tribunal was entitled to find that AT could not avoid the risk by working, relying on the evidence of trauma, childcare difficulties, recovery needs and the February 2021 lockdown. It was also entitled to reject child maintenance and section 17 support as presently reliable resources. Its findings were evaluative findings open to it on the evidence.

• First-tier Tribunal (Social Entitlement Chamber): on 31 May 2022, allowed AT’s appeal and substituted a decision that she was entitled to universal credit.
• Upper Tribunal (Administrative Appeals Chamber): dismissed the Secretary of State’s appeal. The First-tier Tribunal decision involved no material error of law.