Court of Appeal Upholds Fundamental Rights of Destitute EU National Post-Brexit

Citation: [2023] EWCA Civ 1307
Judgment on

Introduction

The case of Secretary of State for Work and Pensions v AT [2023] EWCA Civ 1307, heard in the Court of Appeal (Civil Division), is a pivotal decision dissecting the UK’s obligations under the Withdrawal Agreement post-Brexit, particularly in relation to the Charter of Fundamental Rights of the European Union (the Charter). The Court was tasked with unraveling the complex web of social entitlements for individuals residing in the UK under Pre-Settled Status (PSS) and the interplay of domestic laws with European protections post-Brexit. The judgment delves into the nuances of the Charter’s application, fundamental rights and their effective protection, and the threshold at which a breach of these rights occurs.

Key Facts

The case revolves around AT, a destitute Romanian national with a young child. After being subjected to domestic violence, she fled and sought Universal Credit (UC) which was refused. AT’s appeal focused on whether her right to reside under EU law, protected by the Withdrawal Agreement, ought to have granted her access to social assistance, or at least protection from destitution under the Charter following her grant of PSS.

Continuation of EU Law Post-Brexit

The Court expounded on the legal transformation whereby EU law became UK domestic law through the Withdrawal Agreement and was incorporated by the European Union (Withdrawal) Act 2018 (EU(W)A 2018). Central to this was whether provisions of the Charter continued to apply post-Brexit.

The Role of the Charter

The decision critically examines the Charter’s application, particularly Article 1 concerning human dignity. It acknowledges a distinction between the duty to protect dignity under Article 1 and protection from inhuman and degrading treatment under Article 4 of the Charter (equivalent to Article 3 of the ECHR). The notion that dignity under Article 1 is inviolable and must be respected even where another right is restricted, played a key role in the Court’s judgment.

The ‘Individualised Assessment’ for Supporting Rights

The Court endorsed the requirement for an individualized assessment when determining eligibility for social assistance, arising from CG v The Department for Communities in Northern Ireland. An individual’s actual and current situation is paramount when considering the risk of rights violation, opposing the SSWP’s ‘in principle’ argument that a statutory framework’s potential to provide support suffices to avoid rights violations.

Allocation of Responsibility to Local Authorities

The Court found that the allocation of responsibility for ensuring compliance with fundamental rights, such as housing and homelessness support under the Children Act 1989, does not automatically exempt the SSWP from liability if an individual fails to receive necessary protection.

Outcomes

The Court rejected the appeal on all grounds. It determined that the Charter, including Article 1, does continue to have domestic application post-Brexit, directly influencing the outcome of cases pertaining to the right to reside under the Withdrawal Agreement. It upheld the lower tribunal’s finding that AT and her child were destitute and at real risk of harm, establishing a breach of her fundamental rights under both Article 1 of the Charter and Article 3 of the ECHR.

Conclusion

The case enshrines the principle that post-Brexit, individuals in AT’s position are entitled to effective protection of their fundamental rights, including the right to live in dignity as safeguarded by the Charter. The judgment stands as an important example of how fundamental rights continue to be enforced within the UK legal system despite the departure from the EU. It also clarifies that it is the practical application and real impact of welfare support systems, not merely their theoretical existence, which is crucial in upholding individuals’ dignity and rights.