Secretary of State for Work and Pensions v AT

The Court of Appeal dismissed the Secretary of State's appeal against the Upper Tribunal and First-tier Tribunal decisions which held that a person with Pre-Settled Status (PSS) can rely on rights flowing from the Withdrawal Agreement and associated EU law, read in light of the Charter of Fundamental Rights, to require state support to permit continued enjoyment of a right of residence in dignified conditions. The key legal principles are that Article 13 of the Withdrawal Agreement imports Article 21 TFEU by cross-reference, the Charter applies to rights implemented under the Agreement and has been incorporated into domestic law by section 7A of the European Union (Withdrawal) Act 2018, and that Article 1 of the Charter (human dignity), read with Articles 7 and 24 where relevant, can impose a positive, individualised duty on public authorities to ensure a subsisting right of residence can be exercised in a dignified manner.

The court rejected the Secretary of State’s central defences: that the Charter had no continuing application post-transition, that compliance is satisfied so long as a statutory framework exists "in principle" regardless of its operation in an individual case, and that any Charter protection is co-extensive with Article 3 ECHR (inhuman or degrading treatment). The court followed and applied the CJEU judgment in CG (C-709/20) as governing the assessment: state authorities must ascertain whether a refusal of one form of assistance exposes the individual and dependent children to an actual and current risk of violation of their Charter rights, taking into account only state-law means of assistance that the claimant may actually and currently benefit from.

The respondent, AT, a Romanian national with Pre-Settled Status (PSS) and a young child, applied for Universal Credit which was refused because regulations exclude persons whose only right to reside derives from limited leave under Appendix EU. AT appealed. The First-tier Tribunal allowed the appeal, finding AT and her child at risk of being unable to live in dignified conditions. The Upper Tribunal dismissed the Secretary of State’s appeal. The Secretary of State then appealed to this Court.

Nature of the claim: AT sought vindication of rights under the Withdrawal Agreement and EU-derived rights, read with the Charter, to obtain state support sufficient to permit dignified enjoyment of her subsisting right of residence. The relief sought was effectively the conclusion that the refusal to consider alternative state support, after denying Universal Credit, violated Article 1 of the Charter (in conjunction with Articles 7 and 24) and domestic law implementing the Withdrawal Agreement.

Procedural path: First-tier Tribunal (Social Entitlement Chamber) decision 31 May 2021 allowed AT’s appeal; Upper Tribunal (Administrative Appeals Chamber) [2022] UKUT 330 (AAC) dismissed the Secretary of State’s appeal; Court of Appeal [2023] EWCA Civ 1307 dismissed the Secretary of State’s appeal from the Upper Tribunal.

Issues framed:

• Whether the Charter continues to apply post-transition to rights preserved by the Withdrawal Agreement and implemented into UK domestic law by section 7A EU(W)A 2018.
• Whether Article 13 Withdrawal Agreement incorporates Article 21 TFEU and thus invokes Charter protection.
• Whether compliance with fundamental rights may be assessed by reference to a statutory framework "in principle" or must be an individualised, fact‑specific assessment of whether a refusal exposes the claimant to an actual and current risk of violation of Charter rights.
• Whether the duty imposed by Article 1 of the Charter is substantively co-extensive with Article 3 ECHR (inhuman or degrading treatment) or has a separate application.
• The role of section 17 Children Act 1989 and the allocation of responsibility between central and local government.

Court’s reasoning (concise): The Court held that the Withdrawal Agreement, by cross-reference to Union law and by Article 4(1) and related provisions, brings provisions of Union law, including the Charter, into the Agreement’s regime where rights under the Agreement derive from Article 21 TFEU. Those rights were given domestic effect by section 7A EU(W)A 2018. The Court followed CJEU authority in CG: where a person with a subsisting right of residence (here PSS) is refused one form of assistance (such as Universal Credit), national authorities must determine, in an individualised manner, whether that refusal exposes the person and any dependent children to an actual and current risk of violation of their Charter rights; only state-law assistance that the person may actually and currently benefit from is relevant. The Secretary of State’s defence that an abstract statutory framework "in principle" suffices, and that responsibility can be avoided by allocating duties to local authorities without ensuring effectiveness, was rejected. Article 1 of the Charter is not simply coextensive with Article 4/Article 3 ECHR; it operates as a freestanding protection of dignity, albeit overlapping facts may engage both.

The appeal is dismissed. The Court held that (i) Article 13 of the Withdrawal Agreement imports Article 21 TFEU and the Charter applies, (ii) those rights have been incorporated into domestic law by section 7A EU(W)A 2018 and can have direct effect, (iii) the CJEU decision in CG governs assessment: national authorities must undertake an individualised inquiry to ensure refusal of one form of assistance does not expose a claimant and dependent children to an actual and current risk of violation of Charter rights (Article 1, read with Articles 7 and 24 as relevant), and (iv) the Secretary of State cannot rely on a merely theoretical statutory framework or the mere allocation of responsibility to local authorities where the framework does not in practice protect the individual’s rights.

Appeal from Upper Tribunal (Administrative Appeals Chamber) [2022] UKUT 330 (AAC) which had dismissed the Secretary of State’s appeal from the First-tier Tribunal (Social Entitlement Chamber) decision dated 31 May 2021. The Court of Appeal delivered judgment in Secretary of State for Work and Pensions v AT [2023] EWCA Civ 1307 (this decision).