Court of Appeal applies Article 1 of EU Charter of Fundamental Rights on right to dignity to destitute EU citizens post-Brexit

In AT v SSWP [2023] EWCA Civ 1307, the Court of Appeal has dismissed an appeal by the Secretary of State regarding the lawfulness of disentitling those EU citizens with Pre-Settled Status from claiming Universal Credit.

AT was a victim of domestic violence who had fled her home with a young child. The First-tier Tribunal found that she was destitute at this time. The Secretary of State determined that, as an EU citizen with Pre-Settled Status, she was not entitled to Universal Credit. The First-tier Tribunal and Upper Tribunal quashed the refusal, relying on the CJEU judgment of C-709/20 CG v Department of Communities for Northern Ireland [2022] 1 CMLR 26 and AT’s rights under the Charter of Fundamental Rights. It was held that, following Brexit, the right to dignity under Article 1 of the Charter continued to apply in certain limited respects as a result of the EU-UK Withdrawal Agreement. In refusing Universal Credit to AT, the Secretary of State failed to ensure that AT and her child were able to enjoy that continuing right.

The Secretary of State appealed to the Court of Appeal. The Secretary of State’s arguments included that:

1. The Charter no longer applied following the UK’s departure from the EU.
2. Alternatively, the Court had to consider the system as a whole that AT could benefit from in principle.
3. The relevant threshold was that contained in Article 3 ECHR on degrading and inhuman treatment and this case did not come close to reaching that high threshold.

The Court of Appeal dismissed the Secretary of State’s appeal. It found that:

1. The Charter continued to apply within limits. It did so as a result of Article 4 of the Withdrawal Agreement and the EU (Withdrawal) Act 2018. Article 13 of the Withdrawal Agreement, conferring a right to reside on EU citizens in the UK, had to be construed and applied by reference to the Charter. Article 1 of the Charter – containing the right to dignity – was a freestanding right as set out in CG and the benchmark for the standard of review under Article 1 is to be found in that judgment.
2. The “in principle” argument was inconsistent with CG, Article 4 of the Withdrawal Agreement and the principles governing protection of fundamental rights. There had to be a consideration of the particular position of those at risk of not being able to reside in dignified circumstances and not just the system as a whole.
3. The FTT took into account all of the relevant facts and applied the correct threshold. Its finding was within the legitimate scope of its discretion.

The judgment can be found here.

Julia Smyth and Harriet Wakeman acted for the Secretary of State.

Galina Ward KC and Yaaser Vanderman acted for the AIRE Centre (intervening) instructed by Herbert Smith Freehills.