Court of Appeal decides the Secretary of State is wrong, wrong, wrong: The Charter applies to people with pre-settled status
Previously in the pre-settled status/benefits saga… In 2019, the UK government introduced regulations stipulating that pre-settled status awarded under the EU Settlement Scheme was not a sufficient right to reside for EU nationals to pass the habitual residence test when claiming benefits, so people with pre-settled status had to show another right to reside to be eligible for, e.g. universal credit. These regulations were challenged, and after the Court of Appeal of England and Wales found them to be unlawful in Fratila, because they were discriminatory on the grounds of nationality, the Court of Justice swept in and swept that judgment aside, finding in Case C-709/20 CG that people with pre-settled status (PSS) were not protected from nationality discrimination. However, there was a degree of protection of last resort; having moved and obtained a domestic right of residence, they did so under Article 21 TFEU, on free movement for EU citizens, and so were entitled to protection from the Charter of Fundamental Rights – in particular, the Article 1 right to dignity. Before refusing subsistence benefits, the national authorities should ascertain “that that refusal does not expose the citizen concerned and the children for which he or she is responsible to an actual and current risk of violation of their fundamental rights, as enshrined in Articles 1, 7 and 24 of the Charter”.
Both Fratila and CG concerned facts arising before the transition period ended on 31 December 2020, so when EU law was still applicable in the UK. The AT case asked whether the findings in CG still hold good after transition ended, now that the relevant law is the Withdrawal Agreement, not EU law. In particular, the main issue was whether the Charter of Fundamental Rights applies in cases based on the Withdrawal Agreement. Every single one of the seven judges faced with this question so far (a First tier Tribunal judge; a three judge panel in the Upper Tribunal; and now, three Court of Appeal judges) have concluded that yes, yes it does.
The Charter applies to AT-like cases
In reaching this conclusion, the Court of Appeal dealt with five arguments from the Secretary of State (eerily similar to those put forward in the Upper Tribunal):
(i) The drafters of the Withdrawal Agreement did not intend to incorporate the Charter: WRONG
The SSWP argued that the Court should have regard to the fact that the Withdrawal Agreement was driven by the “opposite philosophy” to that of the Charter – so not aiming for an “ever closer union” but embodying a “sovereign decision by the UK to leave the Union” [78]. The judgment carefully pointed out that the Court’s duty was not “to work out whether, in the hurly burly of negotiations, the UK or the EU got the better or worse deal in any particular respect and then to adjust the interpretation of the Agreement accordingly” [80].
On a “normal interpretation” of the Agreement, the Charter was in fact carried through, albeit within limits, as it was part of the definition of “Union law” in Article 2(a)(i).
(ii) Article 4 of the Withdrawal Agreement excludes the Charter: WRONG
The Secretary of State argued that because the WA did not mention specific provisions of the Charter, the principles of interpretation laid down in Article 4(1) of the WA could not include the Charter, and that it was not a “method” or “interpretation” for the purposes of Article 4(3). The Court rejected this submission on a number of grounds – noting that it would have been surprising for the WA to enumerate specific provisions of the Charter, which is a measure “made applicable by the Agreement”. The Court also noted the duty of reciprocity imposed by Article 4(1), and agreed with counsel for the IMA who said it was “inconceivable that Article 13 would be construed without reference to the Charter” in the EU, and so the same would apply in the UK. Lord Justice Green, giving the lead judgment with which the other two judges agreed, also noted that defining “methods” to include a large range of supplementary materials, but not the Charter, would be to place “an excessively tight set of shackles” around the term. Further, case law showed that consistency with the Charter is a “general principle of interpretation”.
Finally, the Court also noted that Article 4(3) WA did come into play, contrary to the Secretary of State’s assertion that refusing UC did not involve any interpretation of Article 13 WA:
The “gravamen of the complaint is about an omission not a commission… there was a positive duty on a host state who refuses one form of relief… to determine…whether the person was in need of other forms of protection to secure their dignity and make their residence right viable. That was not in this case done”.
(iii) Article 13 creates a standalone right separate from the right in Article 21 TFEU: WRONG
The argument here was that the Charter could not be brought into Article 13 WA by the reference to Article 21 TFEU, as the Upper Tribunal found, because Article 13 only brought forward the limitations and conditions of Article 21, not the right to reside. The Court contrasted the purported interpretation of the government with what the text says:
[93]… In oral argument the Article 13 right was construed as if it read:
“Union citizens and United Kingdom nationals shall pursuant to this article, but no provision of EU law, have a right to reside in the host State. That right shall however be subject to the limitations and conditions set out in Articles 21.”
This can be contrasted with Article 13 as actually framed:
“Union citizens and United Kingdom nationals shall have the right to reside in the host State under the limitations and conditions as set out in Articles 21.”
The Court made three points in dismissing this argument; first, it effectively elided limitations and conditions, without recognising that when “naturally read”, the term conditions was used to indicate the bringing forwards of the right from Article 21 TFEU. Secondly, the use of the definite article in Article 13 indicated that the “the” right to reside flows from Article 21 TFEU. And thirdly, Articles 13(2) and (3) were worded in such a way to make clear that the rights conferred on family members derived from Article 21 TFEU, and the Court noted that there was no basis for suggesting that the parties to the Agreement intended to curtail the rights of principal beneficiaries while extending the rights of their dependants.
(iv) CG only applied to cases before the transition period ended: WRONG
Because the CJEU referred in CG to EU law “being applicable… until the end of the transition period”, SSWP argued that the judgment did not apply to, or extend Charter protection to, someone whose application for UC post-dated the end of transition, such as AT. The Court rejected this argument, as such references were to “EU law being applicable in it fullest sense in the UK” and were not about what happened post-transition. Here, the Court drew focus to the “anchoring right” which “pre-dated but also subsists beyond the transition period”. AT had had an EU law right to reside which was transformed into an international law right under the WA “and is now encapsulated into PSS”. The SSWP’s argument put an “unacceptable construction” on the Agreement according to the Court, since it assumed that neither the UK nor the EU “intended that any woman, whether from the UK or EU, with a right to reside in a host state who later became a victim of violence and fled, thereby becoming in need of support, could claim the bare minimum support needed to make her existing right of residence sustainable in a dignified manner”. Lord Justice Green memorably summarised this as “an attack upon the basic, anchoring, right; on the analysis of the SSWP the tail eviscerates the dog” [99].
The Court also took the opportunity to reply to SSWP’s criticism of the CG judgment as “baffling and perplexing”, creating “new and unheralded substantial financial burdens on the state”, that it “did not bind, and should not be followed”. In short, the responses were: It wasn’t; it doesn’t; it does and it should. It represented an evolution, but led, according the SSWP himself, to much the same result as an ECHR analysis, so was not baffling. There was no evidence of any substantial burden. It was binding under the Withdrawal Agreement so that “even if CG is an extension of the law then so be it”. And the Agreement imposed equal obligations upon the EU and UK so there could be “no sense in which the judgment imposes unfair burdens only on the UK”.
The Charter was not brought “fully back into play in domestic law” by the Withdrawal Agreement; it “only applies if and insofar as it can attach to rights… [in] the Withdrawal Agreement”.
(v) Article 1 of the Charter imposes no greater duty than Article 3 ECHR: WRONG
The SSWP argued that even were the Charter to apply, Article 1 of the Charter did not add anything, and that the appropriate threshold for assessing rights violation was whether someone’s Article 3 ECHR rights (reflected in Article 4 CFR) to not be subjected to inhuman and degrading treatment had been violated; this, SSWP argued, was a high threshold which had not been met.
The Court disagreed, noting that Article 1 is freestanding and “cast in language as unequivocal and emphatic as it is concise: ‘Human dignity is inviolable’”. There was no suggestion that it should be subordinate to any other right. While there may often be an overlap between Article 1 and Article 4, the case law (e.g. Case C-233/18 Haqbin) did not say they had the same scope and effect; rather Article 4 cases were a “subset” of Article 1 cases, and the “benchmark for the standard of review under Article 1” is now established in CG, which was not framed in terms of inhuman or degrading treatment.
An ”in principle” framework of support is not enough
The core of the SSWP’s argument should the Charter apply, was that any duty thereby imposed was discharged by pointing to a statutory framework of alternative support that was “in principle” available, regardless of whether any such support was actually provided in practice. It was “not to the point” that support was refused; the very existence of a system of support “obviates any risk of violation” [119].
Lord Justice Green outlined four rejoinders to this position:
(i) CG requires more than an “in principle” system.
The CJEU in CG referred to the claimant’s particular position and situation. It outlined a duty to “’ensure’ that the person concerned could ‘live in dignified conditions’”, and ‘required’ the State to enable children to stay in dignified conditions with their parents – “an instruction relating to the actual position of the children, not the system” [124]. The State was required to ascertain whether there was “an actual and current risk of violation” of fundamental rights, taking account of benefits that were “actually and currently” available to claimants. It was simply “not possible to glean from this judgment support for the SSWP’s argument that the plight of the individual is irrelevant provided the system is capable in theory or principle of providing support”.
(ii) Direct effect requires more than an “in principle” system
Article 4(1) WA meant that the WA is to have direct effect, implemented by s7A of the EU (Withdrawal Act) 2018. The doctrine of direct effect means that individuals should be able to asset their rights before courts, which should “confer remedies effective to remediate individual harm”. The ‘in principle’ defence strips individuals of any personal right or remedy; the argument that “the position of the individual is irrelevant is the antithesis of direct effect”.
(iii) Effective protection requires more than an “in principle” system
Here the Court referred to effective protection as one of the “ordinary principles of law relating to the protection of fundamental rights” [126]. To interpret Article 1 as only imposing a duty of establishing a system “capable in principle of respecting and protecting the right … even if in practice it does not” would be to “render the right violable, subject to disrespect, and unprotected”.
(iv) The system does not even offer protection “in principle”
The Court’s final point on this issue was that the system failed even on the SSWP’s own low standards: “no evidence has been advanced to show that the system is in fact capable of offering support, as opposed to simply being a theoretical construct” [128]. Green LJ made various observations about the purported statutory framework. Stating that housing and accommodation “will invariably be an important component of any system of support”, the judge noted that people with PSS, even if street homeless, were ineligible for housing and homelessness support – apart from access to advice. Green LJ added pointedly that “advice is not housing”.
The section 17 Children Act 1989 duty to promote the welfare of children was the “centrepiece of the SSWP’s system of protection”; it was argued that “even if it is, as a system, presently deficient and/or ill applied by local authorities, it is nonetheless “potentially” capable of being applied in a manner consistent with fundamental rights” [133]. The Court noted that the claimant had sought s 17 help and received “minimal support” – “a few toys and clothes for the child and some low value vouchers”. The Court noted the AIRE Centre’s submission that SSWP’s argument was “long on theory and short on reality”, and their reference to a report on the “considerable complexity and uncertainty of the section 17 regime and its many problems”. Turning to SSWP’s argument that the section 17 system “could in theory be more fulsomely applied and this is enough to defeat a claim based on fundamental rights”, Green LJ pointed out that this was, essentially, unsubstantiated fantasy: “There is though no explanation as to how that idealised position could or would come about”. So section 17 was not the answer.
During the course of the appeal, SSWP argued that shortcomings in the statutory framework (including where applicants would not fit within section 17 because they did not yet have a child) could be mopped up by the supposedly wide powers of local authorities under the Localism Act 2011. SSWP also suggested that the Localism Act could (in principle) plug the housing gap for people like AT because under section 1 a local authority “was empowered to do anything that individuals may generally do”. However, the Court did not agree that local authorities really were granted a magic wand. This “broad brush power” could not address the problem of accommodation where there was clear legislation excluding people with PSS from housing and accommodation; nor was there any evidence the Act was “in fact treated as relevant to housing by local authorities, or that there is funding and resources made available to enable it to be used for that purpose” [124]. In terms of the Localism Act being used to plug other support gaps – there was no evidence that it was ever intended to be used that way, or that local authorities had accepted that responsibility; or that local authorities “were adequately resourced” to do so [164].
It is the SSWP’s responsibility
SSWP sought to argue that it had allocated responsibility for adherence with fundamental rights to local authorities; if they had failed in their duties, the remedies lay in judicially reviewing those authorities. The Court noted the difficulty in SSWP raising this at a late stage without representations from local authorities, and without the local authority in question having been joined to the proceedings – “the absence of such evidence and submissions [was] a serious evidential void”. SSWP’s case was that once the responsibility was allocated “there was no obligation on the Government of the day to ensure that, from a resource or funding perspective, the organ of the state to whom responsibility was allocated had the wherewithal to perform that duty” [163]. Counsel for AT pointed to authorities that whether or not it allocated responsibility for the enforcement of rights, it was the State’s responsibility to ensure that rights were effectively protected (e.g. Case 179/84 Bozzetti), and that States cannot escape responsibility by setting up a system that obstructs enforcement (Case C-268/06 Impact). The Court agreed with AT: “the simple fact of allocation does not absolve the state from the continuing duty to ensure that rights, in this case conferred under the Withdrawal Agreement and accepted by the United Kingdom, remain capable of being effectively enforced”.
In short, the Court of Appeal has comprehensively dismissed all of the Secretary of State’s grounds of appeal. A purely hypothetical system of support (where it even exists in theory) does not provide a license under which individual violations of fundamental rights become lawful.
Credit: UK Supreme Court
What now?
The Court has also refused permission to appeal, but it is likely that the Secretary of State will seek permission from the Supreme Court. If it is granted, then the case faces another potentially lengthy stage of litigation – including the intriguing possibility of a Withdrawal Agreement-based reference to the Court of Justice of the EU. However, even if there is still a stretch to go before we have a definitive, final answer, as noted by CPAG it should be possible for claimants to rely on this case now. Advisers should see CPAG’s guidance on how to argue against your case being stayed, and contact us at the EU Rights & Brexit Hub for specialist second tier advice on putting your case together.