AT case and third country nationals - anyone seen any DWP argument on this?

The DWP guidance that was issued whilst the AT litigation was ongoing took the view (without citing any authority) that third country nationals (for example Senegalese person with PSS issued as the family member of a French citizen) cannot benefit from AT.

We think that view is clearly wrong. We are aware that the DWP maintain the position before the First-tier Tribunal but in the cases we have seen they simply assert the position and do not give any legal argument for why they think it is correct.

I am currently considering drafting a template argument about why the DWP position is wrong. However, it would really help if anyone who has a case where this is the issue and in which the DWP have put forward some sort of argument would be happy to let us see what they say on this.

Feel free to email us at .(JavaScript must be enabled to view this email address) if you have such a case.

Many thanks.

Martin

I’ve had directions on my EU national cases, it’s only the TCN cases that haven’t progressed yet, Webchat has just told me that one of them is still with a FtT Judge, no argument from DWP post AT yet

For what its worth I had an AT case heard by a FtT on 13/03/2023.

My client is a Ghanaian national. Her former partner is Polish

The Tribunal first considered my argument that the ex partner was a worker and so she had a derivative right to reside, but the Tribunal found after considering the evidence that he was self employed so no derivative r2r

Tribunal then went on to consider my AT argument .

The DWP PO made no comments because he had not been given any guidance following the refusal to grant leave to appeal by the Supreme Court.

My client’s appeal was allowed and the Tribunal held that she could rely on AT

I can upload a redcated copy of the decision notice if it is of any use, although the DWP could ask for leave to appeal to the UT if they think they can justify their previous position that a third country national cannot rely on AT

Thanks both.

Stainsby- if this was a child in education case then there is an argument that the WA now enables the primary carer of a child in education where one parent was previously self employed to have a right to reside via that route. WA articles 24(2) and 25(2).

If DWP appeal let us know.

Have now done a template on the third country national point and will put on website shortly.

Martin

Have now added this template (scroll down to bottom of page).

https://cpag.org.uk/welfare-rights/test-cases/test-case-updates/destitute-eu-nationals-pss-can-rely-eu-charter-fundamental-rights-obtain

See link to: Appeal submissions where DWP say, without explaining why, that SSWP v AT cannot apply to a third country national issued PSS as family member of EU national

If you see a case where DWP actually come up with an argument why their assertion is correct then don’t use this- instead email us and we will help with a response to any points they make.

DWP have asked for a statement of reasons