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

I’m happy to report another SSWP v AT case involving a third country national which was successful at the FTT this week.

The line of argument advanced by the DWP in the MRN and bundle was that AT does not apply to non-EEA nationals. No additional argument was put in response to our submissions. The PO attending argued that as the EU family member was no longer in the UK, the client could not rely on them; there were no further submissions on the fact the client’s rights relate to a period before the end of the transition period in 2020, when the client was the family member of an EU national residing legally in the UK, and therefore their absence from the UK now is not relevant.

Many, many thanks to Martin at CPAG for his Third Country Nationals submission template and also for advice about expediting the appeal case.

Am I reading DMG Memo 05/24 correctly in that you had to have had a Right to Reside on 31-12-2020 in order to be considered for UC, SPC or HB under AT?

Jim

Hi Jim - I see what you mean (I’ve expanded the story a bit to cover what you’re getting at). Is this linked to Charlotte O’Brien’s tweet yesterday - https://www.rightsnet.org.uk/forums/viewthread/20308/ - that the government is arguing that not all people with PSS are protected by the withdrawal agreement??

I welcome views from others on this…

Daphne,

I can’t access the tweet as our employer does not allow us to access social media on council IT and I’m not a subscriber to X, but is it this:

https://www.eurightshub.york.ac.uk/blog/problems-with-the-imas-position-on-art-10-and-13-wa-on-the-scope-of-the-wa

Jim

Hi Jim -

It’s a new twitter thread .. here’s the first few posts to give you a flavour :

Want to hear a twisty tale about a quiet and catastrophic argument that risks stripping 6 million+ EU nationals (& fam members) of Withdrawal Agreement (WA) protection?

Thread on UK authorities arguing that EUSS status is NOT WA status, and how @EURightsHub has helped counter this ...

UK authorities have, in the course of various cases, been deploying some ingenious but incendiary arguments, that would mean almost none of the 6million + people registered with the EU Settlement Scheme can know whether they are covered by the Withdrawal Agreement.

This should come as a shock. The EUSS deadline was 3 yrs ago; ppl registered to show they are protected by the Withdrawal Agreement, right? In the face of warnings about a vulnerable minority who would be disentitled overnight, the govt stuck to the constitutive EUSS model ...

And was asked why. Then Home Secretary (Sajid Javid - it was a few HSs ago) said: ‘In a word, Windrush’.

The whole aim of the EUSS, we were told, was to prevent a situation arising where people believed they had rights but could not prove it; to avoid Withdrawal Agreement status being undocumented. The UK reported the EUSS as an implementation of the WA.

But now, in order to avoid a few people having some short term benefit entitlement, the government is seeking to dissolve the intrinsic connection between the EUSS and the WA, arguing that EUSS does not create evidence of coverage by the WA ...

More/continued: https://x.com/CR_OBrien/status/1805585876094681564

You can see all the tweets as one article here: https://threadreaderapp.com/thread/1805585876094681564.html
Let us know if that’s accessible on your work machine

Thanks Sean. Lets hope we get a change of direction regarding this current government’s interpretation of this -  as well as a change of government next week!

Jim

Kelly - 28 June 2024 10:40 AM

You can see all the tweets as one article here: https://threadreaderapp.com/thread/1805585876094681564.html
Let us know if that’s accessible on your work machine

Yes Sean I can access through this link.

Thanks,

Jim

I can’t take the credit for that one Jim!

Ps - there’s now also an ADM memo re AT: https://assets.publishing.service.gov.uk/media/667d32734ae39c5e45fe4d12/adm-memo-6-24.pdf

Hi Jim,
There’s a template letter for FTT appeals where DWP are arguing someone didn’t have an r2r on 31.12.20

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

(It’s FTT15)