Secretary of State for Work and Pensions v AT

Rights conferred by Part Two of the Withdrawal Agreement are directly effective in domestic law through section 7A of the European Union (Withdrawal) Act 2018. The Charter applies only insofar as it attaches to those rights.

When a person with pre-settled status applies for support, the competent authority must ensure that refusal does not expose that person or dependent children to an actual and current risk of living without dignity. This requires an individualised result based on presently available state support. A theoretically adequate statutory framework, future assistance or access to legal redress is insufficient. Article 1 dignity is not confined to Article 3 ECHR ill-treatment, and vulnerability is relevant but is not a gateway condition.

AT, a Romanian national with pre-settled status, fled domestic violence with her young child. She applied for universal credit but was excluded under regulation 9 of the Universal Credit Regulations 2013. The First-tier Tribunal found that she and her child were destitute, lacked adequate state support and faced a real risk of living in undignified conditions.

The Upper Tribunal dismissed the Secretary of State’s appeal in [2022] UKUT 330 (AAC). It held that the residence right protected by the Withdrawal Agreement remained subject to relevant Charter rights and that theoretical access to other assistance did not satisfy the state’s obligation.

The Secretary of State appealed on the continuing application of the Charter, the need for an individualised assessment, the relevance of the overall statutory framework and the threshold for breach of Article 1 dignity.

1. Appeal dismissed. Article 13 of the Withdrawal Agreement incorporates the residence right in Article 21 TFEU rather than creating a freestanding, diminished right. The Charter forms part of “Union law” under Article 2(a) of the Agreement and applies, within its limited scope, to the construction and implementation of that residence right. Article 4 of the Agreement and section 7A of the European Union (Withdrawal) Act 2018 make the relevant rights directly effective in domestic law: paras [82]–[103], [113].

2. The CJEU decision in CG continued to govern a person whose residence right subsisted after the transition period. The historical exercise of free movement was the anchoring right. The state was required to ensure that the continuing right could be enjoyed in dignified conditions: paras [96]–[103].

3. Article 1 of the Charter is a freestanding right and is not legally coextensive with Article 4 of the Charter or Article 3 ECHR. There may be substantial evidential overlap, but Article 4 cases form only a subset of Article 1 cases. The controlling benchmark was the fact-sensitive approach in CG, focusing particularly on present means and resources, accommodation, isolation and dependency of children: paras [104]–[113], [170]–[175].

4. The existence of a statutory framework theoretically capable of providing support does not answer an individual complaint. Where a person with pre-settled status applies for support, the competent authority must achieve an individualised result. It must ascertain whether refusal exposes the applicant or dependent children to an actual and current risk of indignity and whether other state assistance is actually and currently available: paras [123]–[132], [144]–[157].

5. The duty is preventive and immediate. Remote or speculative risks are insufficient, but an applicant need not first fall into indignity. Future assistance, charitable support or the possibility of challenging a refusal does not satisfy an actual and current need: paras [153]–[157]. Vulnerability is relevant but neither defines Article 1 nor operates as a gateway condition: paras [158]–[159].

6. Section 17 of the Children Act 1989 did not answer the claim on the evidence. Its theoretical availability yielded to the finding that sustained support had not in fact been provided. Allocation of responsibility to a local authority does not absolve the indivisible state from ensuring effective enforcement: paras [133]–[143], [160]–[169].

7. The First-tier Tribunal permissibly assessed the circumstances cumulatively. Its findings concerning insufficient means, precarious charitable accommodation, isolation and the needs of the child were comparable to CG and disclosed no error of principle: paras [170]–[176]. Green LJ gave the leading judgment. Dingemans LJ and King LJ agreed: paras [181]–[187].

1. Court of Appeal (Civil Division): The Secretary of State’s appeal was dismissed on all grounds in [2023] EWCA Civ 1307.
2. Upper Tribunal (Administrative Appeals Chamber): The Secretary of State’s appeal was dismissed in [2022] UKUT 330 (AAC). The tribunal upheld the First-tier Tribunal’s legal and factual conclusions.
3. First-tier Tribunal (Social Entitlement Chamber): AT’s appeal against the refusal of universal credit was allowed. The tribunal found a risk that she and her child could not live in dignified conditions.