AT cases

Now that the Supreme Court has refused permission to the SSWP in the SSWP v AT [2023] EWCA Civ 1307 litigation we have updated our resources for advisers - https://cpag.org.uk/welfare-rights/test-cases/test-case-updates/destitute-eu-nationals-pss-can-rely-eu-charter-fundamental-rights-obtain (see links at the bottom).

Blimey, I was convinced that this would go to the UKSC.

What excellent work all at CPAG and both Toms instructed.

Thanks Elliot. I was fearing it might do too….

I have further tweaked the note to just fix some broken link and an incorrect date…..

Are there any court cases considering Article 12 and 23 WA protection from discrimination: Pre-settled status as an Article 13 WA right of residence?

I have an R2R appeal - UC/CB claims made in 2021 in which we are arguing AT and possibly self-sufficiency. I have also asked the Judge to consider the above arguments but I could not find out whether there were any lead cases considering the above legal issues and what stage they are at.

Both the European Court (in CG) and the UK Supreme Court (in Fratila) have conclusively decided that pre-settled status does not confer a right to equal treatment for the purpose of social assistance.  I don’t think you will make any headway the discrimination argument.  AT is the only route to entitlement for someone with pre-settled status.  The starting point is that people with pre-settled status and no other R2R are excluded from means tested benefits, with AT providing an exception where the facts satisfy the threshold.

Hi Team,

Slightly different query on this topic - do we think the caselaw just ‘transfers’ onto local CTS decisions? Or relies on UC being in payment..? Any thoughts welcomed.

Hi,

I am just trying to get my head around when the AT case can be used, and have a client that I am unsure if it is suitable.

They are a Non-EEA national that has PSS, they got this due to their previous partner who was an EEA national. The EEA national now no longer lives in the UK.

My client isn’t able to work and is close to being evicted due to being in rent arrears.

Could this client appeal their UC claim being refused, by using AT?

Thanks for any help

Graham Summers - 13 February 2024 10:04 AM

Are there any court cases considering Article 12 and 23 WA protection from discrimination: Pre-settled status as an Article 13 WA right of residence?

I have an R2R appeal - UC/CB claims made in 2021 in which we are arguing AT and possibly self-sufficiency. I have also asked the Judge to consider the above arguments but I could not find out whether there were any lead cases considering the above legal issues and what stage they are at.

 

This was one of the parked issues by the UT in AT. So it did not get decided as the UT allowed on the Charter issue and that was upheld- but we had permission to argue it from UT.

It is also possibly a live issue in a County Court homelessness case that The 3 Million and IMA have interevened in- heard last week.

Really depends on distinguishing CG - which can possibly be done on ground that Art 18 Withdrawal Agreement is constitutive of residence rights and that changes things.

Cobi30 - 13 February 2024 05:02 PM

Hi,

I am just trying to get my head around when the AT case can be used, and have a client that I am unsure if it is suitable.

They are a Non-EEA national that has PSS, they got this due to their previous partner who was an EEA national. The EEA national now no longer lives in the UK.

My client isn’t able to work and is close to being evicted due to being in rent arrears.

Could this client appeal their UC claim being refused, by using AT?

Thanks for any help

1. SSWP will say a third country national cannot benefit from AT - we think that is wrong.

2. Separately you mention “partner” - were they married? May have separate argument that can retain rights on departure of spouse.

Martin

Hi Martin

Different adviser - same case.

1. So it won’t be easy to get UC to overturn this person’s RTR decision and may need an appeal?

2. The client’s EEA ex-partner left the UK some time ago, they were married, and remain married.

1. The DWP operational guidance says the DWP do not accept a non EU national can benefit from AT at para 5.2 (page 3). So if the UC Decision Maker follows what we understand to be the most recent guidance (although they may have updated it since the Supreme Court refused permission) then they will refuse to change their position. You would need to try and go to appeal and get it expedited (we have a template for that on the webpage). We would be happy to advise on expedition application etc. - or also getting the MR done quickly. Get in touch by email?

2. So the rule about a third country national who was here as the family member of an EU national where that EU national has left the EU is article 12(3) of Directive 2004/38 (or in the Immigration (EEA) Regulations 2016 it is reg. 10). That is given effect in the Withdrawal Agreement by article 13(3). Article 12(3) makes it depend on if they have kids in education-

“3.  The Union citizen’s departure from the host Member State or his/her death shall not entail loss of the right of residence of his/her children or of the parent who has actual custody of the children, irrespective of nationality, if the children reside in the host Member State and are enrolled at an educational establishment, for the purpose of studying there, until the completion of their studies.”

We are arguing the UC refusal for one of our homeless clients (PSS, unable to work due to health issues, no family to rely on etc), he was initially refused because he did not exercise treaty right at the end of the transition period Dec 2020, the MR came back with the same outcome ‘... we also needed to consider your claim against the Upper Tribunal decision in the
case of SSWP v AT (AIRE Centre and IMA intervening) [2022] UKUT 330 (AAC).There is no evidence you were resident in the UK and exercising your treaty rights in the UK at the time of withdrawal (31 December 2020), therefore, this ruling does not apply to
you…’

We are arguing wrong interpretation of Art 10 of the Withdrawal Agreement (at some point client had an initial right to reside (3 month) prior to Dec 2020.
Does anyone have a similar case going through Appeal at the moment?
many thanks

Lana 2023 - 11 March 2024 04:33 PM

We are arguing wrong interpretation of Art 10 of the Withdrawal Agreement (at some point client had an initial right to reside (3 month) prior to Dec 2020.
Does anyone have a similar case going through Appeal at the moment?
many thanks

This issue was argued in a case that the3million intervened in (Public Law Project as solicitors for them and instructing Tom Royston of Garden Court North and Charles Bishop of Landmark). The Independent Monitoring Authority also intervened. I have, with the3million agreement, adapted the detailed submissions made in that case into a template that addresses the issue (well shamelessly copied them to be honest). It is on our website here (scroll down to the bottom): https://cpag.org.uk/welfare-rights/test-cases/test-case-updates/destitute-eu-nationals-pss-can-rely-eu-charter-fundamental-rights-obtain

We would be interested to see any argument (as opposed to assertion) that DWP make to the FTT in your case - feel free to email us.

Martin