Third Country nationals joining EU family members and AT v SSWP

Question regarding the applicability of AT to third country nationals with EU pre-settled status

Our client is a Nigerian national. She entered he UK in Sept 2022 on a EU family permit to join her mother, a Spanish national resident in UK prior to the end of 2020. Client is 30+ and was dependent on her mother. She travel with her 2 young children, also Nigerian nationals. In December 2022 she and her children obtain EU pre-settlement. Shortly after this she suffers DV from her mother + step father. From this time she is no longer dependent on her mother. She moves in to family friends house, which is severally overcrowded. approaches social service NRPF and is refused support.

Client has applied for UC - which was refused on basis that as non-EEA national with pre-settled status she cannot rely mother for establishing right to reside following break of dependency. This seems correct. However they have not then considered the whether AT v SSWP should apply. The client circumstances mean if assessed for hardship under AT there’s an arguable case she’d meet the requirements.

So my question is does our client fall with in the scope of AT even with the breakdown of dependency?

I can see an argument for on basis of article 17(2) of withdrawal agreement-

The rights provided for in this Title for the family members who are dependents of Union citizens or United Kingdom nationals before the end of the transition period, shall be maintained even after they cease to be dependents.

Which dealt with in Fatima Ali, R (on the application of) v Secretary of State for the Home Department [2023] EWHC 1615 (Admin)- however this case relates to non-eea national resident in the UK prior to the terminal date (and fails due to the dependency breaking before the terminal date). The specifics of this aren’t immediately applicable to a joining family member most terminal date however.

Secondly a broader question is being in scope of the withdraw agreement sufficient to allow our client to benefit from AT?

CPAG thinks that 3rd country nationals covered by WA can rely on the Charter (and hence AT applies). Article 13(2) WA applies. There is some discussion by UT in AT where they comment that it would be strange on SSWP case if TCN persons had more rights than EU nationals- strongly implying TCNs do have right to Charter. I don’t have time at the moment to deal with this more comprehensively but definitely appeal - and CPAG happy to help re advice if you email.

The decision was appealed and we now have the DWP’s response in the matter which is underwhelming to say the least. They submit that

            AT does not apply for the following two reasons;
              a) as a third country national the claimant cannot be said to be in the same circumstances as AT, and
              b) the claimant was not in scope of the withdrawal agreement at the time of her claim

They then go AT is predicated on the fact the CFR only applies to AT as she falls within Article 10. They then quote article 10 in full, including (e)(ii) relating to joining family members….

Point b (which isn’t presented as a an alternative argument) seems to tactically accept she was covered by the withdraw agreement, but this ended when the dependency broke down..

None of which explains why article 10 doesn’t apply to third country nationals.

If you want to send us the bundle of papers and the new submsisions from DWP we could perhaps help drafting further submissions / advise as appropriate?

Cheers Martin - would that at the .(JavaScript must be enabled to view this email address) email?

That will get to me - mention in the email that I said I’d look at it and a colleague will pass it over.