Secretary of State for Work and Pensions v Wilfried Versnick & Anor

For the purposes of Article 7(1)(b) of Directive 2004/38/EC, the key question is whether an EU national’s exercise of free movement rights has a causal link with a burden on the host State’s social assistance system. Resources indirectly made available through a spouse’s benefits may suffice where the national’s presence does not increase, and may reduce, that burden. Authorities concerning resources from third parties were distinguishable where the ultimate source was host-State social assistance. A British spouse already entitled to support in her own right need not be maintained by the EU national. Article 8(4) sets a ceiling and prevents an inflexible minimum. Appeals from specialist social security tribunals are confined to errors of law.

The Secretary of State appealed against the Upper Tribunal’s decision concerning a joint Universal Credit claim by a Belgian national and his British wife. The Upper Tribunal had allowed the Secretary of State’s appeal on an error of law by the First-tier Tribunal, but remade the decision in favour of the Belgian national. It held that he could rely on resources made available through his wife’s benefits, including social assistance, and that his inclusion in the household did not create an unreasonable burden on the UK social assistance system.

The appeal concerned whether that approach was permissible under Article 7(1)(b) of Directive 2004/38/EC, how Article 8(4) applied, and whether the Upper Tribunal had erred in assessing the duration and cumulative effect of the burden.

1. Appeal dismissed. The Upper Tribunal had not materially erred in law.
2. Article 7(1)(b) requires a causal link between the EU national’s exercise of free movement rights and the burden placed on the host State’s social assistance system. On the unusual facts, the respondent’s presence did not increase the burden. The relevant household assistance in fact decreased. The line of CJEU authority holding that the origin of resources is generally immaterial was distinguishable because those cases concerned resources from third parties, not resources whose ultimate source was the host State’s social assistance system. The approach was consistent with the assessment required by [2014] 1 WLR 1080.
3. Article 8(4) establishes a ceiling or reference point, but prevents the State from imposing an inflexible floor. Where the household received the amount prescribed as meeting the needs of a couple, the State could not treat that amount as insufficient without addressing the individual circumstances. There was no impermissible spreading of benefits between household members. The British spouse was already entitled to UK benefits in her own right and did not have to be maintained by the EU national. Any part of the burden which would have arisen independently lacked the necessary causal link.
4. Under section 13(1) of the Tribunals, Courts and Enforcement Act 2007, the Court of Appeal could correct only an error of law. The Upper Tribunal was a specialist tribunal, and the ordinary courts should approach its evaluative conclusions with appropriate caution, as explained in [2001] EWCA Civ 734 and [2013] UKSC 19. It was entitled to take account of the 23-month period before settled status, the small and time-limited cohort, and the proportionate and time-limited nature of the additional payment. After settled status, any entitlement arose from the respondent’s own rights rather than from an adverse burden caused by free movement.

1. Court of Appeal (Civil Division) — [2024] EWCA Civ 1454: dismissed the Secretary of State’s appeal.
2. Upper Tribunal (Administrative Appeals Chamber) — [2023] UKUT 112 (AAC): allowed the Secretary of State’s appeal from the First-tier Tribunal on an error of law, but remade the decision in favour of the first respondent.
3. First-tier Tribunal — allowed the first respondent’s appeal on 7 January 2021 and set aside the Secretary of State’s decision.