GA v The Secretary of State for Work and Pensions

Where a person with pre-settled status under Appendix EU has suffered domestic abuse and was excluded from the route by which comparable Appendix FM partners could obtain leave with access to public funds, a refusal of universal credit may amount to unjustified discrimination contrary to Article 14 of the European Convention on Human Rights.

On the specific facts, regulation 9(3)(c)(i) of the Universal Credit Regulations 2013 had to be disapplied. It was immaterial whether the relevant Convention ambit was Article 8 or Article 1 of the First Protocol. The claimant was consequently entitled to universal credit.

The appellant, a third-country national with pre-settled status under Appendix EU, claimed universal credit after suffering domestic abuse. The Secretary of State decided that she lacked a qualifying right to reside. The First-tier Tribunal upheld that decision on 22 January 2024.

On appeal, the appellant advanced grounds concerning the Charter, discrimination under the Human Rights Act 1998, equal treatment under the Withdrawal Agreement, and the vires of regulation 9(3)(c)(i) of the Universal Credit Regulations 2013. The Secretary of State conceded the discrimination ground. The issue was whether the regulation had to be disapplied because the appellant had been treated unjustifiably less favourably than comparable victims of domestic abuse with Appendix FM leave.

1. Appeal allowed. The First-tier Tribunal had erred in law. Its decision was set aside, and the Upper Tribunal remade the decision by allowing the appellant’s appeal against the Secretary of State’s refusal of universal credit.

2. The Secretary of State’s concession on the Article 14 discrimination ground was properly made. At the time of the claim, the appellant had pre-settled Appendix EU status and had suffered domestic abuse. She was in an analogous position to persons with Appendix FM leave who could use the Destitution Domestic Violence Concession, obtain leave carrying access to public funds, and become eligible for universal credit.

3. The differential treatment fell within the ambit of a substantive Convention right. The Tribunal did not need to decide whether that was Article 8 of the European Convention on Human Rights or Article 1 of the First Protocol. There was no justification for the difference in treatment. Regulation 9(3)(c)(i) of the Universal Credit Regulations 2013 was therefore disapplied in the appellant’s case, with the consequence that she was entitled to universal credit.

4. The Tribunal did not determine the Charter or Withdrawal Agreement grounds, since they were unnecessary to the result. It also recorded, as a correct but unnecessary point, that the reasoning in R v Secretary of State for Social Security ex p Sarwar and Getachew supported the validity of the regulation against the ultra vires argument.

5. The decision was made under sections 12(1), 12(2)(a) and 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007.

• Upper Tribunal (Administrative Appeals Chamber): Allowed the appeal, set aside the First-tier Tribunal’s decision, and remade the decision so that the appellant was entitled to universal credit: [2024] UKUT 380 (AAC).

• First-tier Tribunal (Social Entitlement Chamber): On 22 January 2024, upheld the Secretary of State’s decision that the appellant had no right to reside for universal-credit purposes.

• Secretary of State for Work and Pensions: On 23 August 2022, refused the appellant’s universal-credit claim.