Pivotal test cases pending all at once: Pre-settled status, benefits and the Charter beyond Fratila and CG

Quickety-quick recap: The CJEU found in Case C-709/20 CG that people with pre-settled status and no other right to reside under Directive 2004/38, whose cases arose while EU law still applied in the UK, were not entitled to protection from nationality discrimination. The Court of Appeal of England and Wales had found, in Fratila, that excluding pre-settled status as a right to reside that counts for benefit purposes was a form of nationality discrimination, but the UK Supreme Court then had to apply CG to find that there was no right for the claimants, under EU law, for equal treatment. They did not upset the EWCA finding that the rules were discriminatory; the CG ruling just meant that any such discrimination would be lawful.

credit: The Court of Justice of the European Union

However, in CG, the CJEU did toss in a rather unhelpful lifeline, by finding that such claimants fell within the scope of EU law, so were entitled to protection from the Charter of Fundamental Rights, and gave a strong steer that in CG the claimants’ rights to dignity, family life and the rights of the child were all at risk. The Court stated that decision makers should assess whether Charter rights were jeopardised before refusing subsistence benefits such as universal credit.

So, what is happening now?

Now, advisers are facing cases with post-transition facts – claims for benefits made after 31 December 2020, and figuring out how to apply CG when EU law no longer applies, but separation law – the UK-EU Withdrawal Agreement, and UK withdrawal legislation – does.

Is the Charter still relevant?

We have argued yes – and give some detailed grounds for this in our template skeleton for advisers working with people with pre-settled status, and also in our memo to the House of Commons Work and Pensions Committee, criticising the inaccurate guidance issued by the Department of Work and Pensions, which ignores the Charter. 

credit: EU Commission

In short, we argue that the Charter still has traction, as a result of the Withdrawal Agreement preserving ‘Union law’, including principles, concepts and case law, for people within its scope. As a consequence, decision makers are obliged by the CJEU ruling to ascertain that a refusal of benefits ‘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’ before making such a refusal.

Test cases: cluster of precedent-setting hearings imminent

This very issue is being put to the test in the courts – both in the Court of Appeal of England and Wales and the Upper Tribunal (Administrative Appeals Chamber). The case before the UT concerns an application for universal credit from a claimant with pre-settled status, in a case analogous to CG. The claimant won the case at the First-tier Tribunal, and the Secretary of State for Work & Pensions is appealing to the UT. It is set to be heard by a three judge panel (which is UT-speak for ‘this is an important case’) on the 15th and 16th November; the AIRE Centre applied to make a Third Party Intervention (make a submission to the Tribunal on the issues raised), and has been granted permission to do so.

The Court of Appeal meanwhile granted permission to appeal to two cases, which were to be joined together, from the county court, concerning refusals of housing assistance to people with pre-settled status. Although one of the two cases has since fallen away, it’s worth briefly noting the difference in approach taken by different local authorities to the Charter. Both cases,  A v London Borough of Haringey and A v London Borough of Barnet, concerned lone parents with pre-settled status seeking housing assistance. The solicitors, Hodge Jones & Allen produced a very helpful summary. In Haringey, the county court found that the Charter was applicable, but that the local authority had discharged any duties by ‘having it in mind’. The appellant argued that it was not enough to be mindful of the Charter while infringing the rights contained therein – the local authority must, in fact, not infringe them. However, the LA has settled this case, so they may have lighted upon another ground for finding the claimant eligible that allowed them to dodge the Charter question.

In Barnet, in contrast, the court found that the Charter was irrelevant and the local authority was right not to consider it. The Barnet case raises another problem – with the local authority seeking to curb Teixeira rights of primary carers of the children of former EU national workers where those children are in school. It is arguable that the claimant should have been treated as having another right to reside in addition to pre-settled status in the first place.

The judge granting permission to appeal to the Court of Appeal noted that the cases had been decided by lower courts without reference to the Withdrawal Agreement, despite the fact that they raised “significant issues regarding the impact of the Withdrawal Agreement and associated domestic legislation” and in particular highlighted the “question as to the legal relevance of the EU Charter after Brexit”, given the different approaches of different LAs. The Independent Monitoring Authority for the Citizens’ Rights Agreements has been granted permission to intervene.

Could the CJEU have anything else to say?

Quite possibly. When it comes to the Withdrawal Agreement, there is hardly a wealth of authority to draw upon, and, unsurprisingly in a huge international treaty rattled off at speed, there is plenty of drafting ambiguity within its pages. All of which suggests ample scope for finding that interpretative guidance is needed – which under Article 158, could come from the Court of Justice of the EU. While the UK was an EU Member State it was fairly unusual (but not unheard of) for the Upper Tribunal to make such a reference. The Court of Appeal may choose to kick things upwards, and leave referencing decisions to the UK Supreme Court. When EU law applied, the UK Supreme Court was theoretically obliged to make references where matters of EU law were unclear, and yet it often found ways to avoid doing so, sometimes declaring the murkiest of issues to be clear cut. Under the new regime, we have yet to find out what, if any, appetite the UK judiciary has for consulting the CJEU on Withdrawal Agreement matters. 

What next?

The first case to be heard is the UKUT case, on 15th-16th November, with the Court of Appeal case not yet allocated a hearing date. We will have to wait and see whether both courts feel able to reach judgment without CJEU guidance, and if so, how quickly their judgments will be handed down; if the UT judgment is delivered first, it cannot in the process be guided by the later binding precedent of the Court of Appeal judgment; if however the judgments are in evident disagreement, that would create an immediate ground of appeal for the losing party in the UT case. It is also possible that the Court of Appeal case will be disposed of without addressing the Charter issue, if it is found that the claimant did have a Teixeira-based right to reside, which would make the UT case the leading, precedent-setting case.

In any event, including should the judgments agree, it is likely that in both cases the losing parties will explore the possibility of, and grounds for, appeal. It is however worth noting that the judge granting permission to appeal in Haringey and Barnet anticipates that the Court of Appeal will hand down ‘authoritative guidance’ to local authorities and the county court.  

The dramatic saga of pre-settled status and benefits has a few more twists and turns to go. Faced with DWP’s insistence that CG didn’t really mean anything, advisers and EU nationals still need answers to the fundamental questions the CJEU left open about the role of the Charter post-Brexit, and the nature of the duties it places upon UK authorities.