Court of Appeal ruling on the application of the EU Charter of Fundamental Rights under the EU-UK Withdrawal Agreement

08/11/23

Today the Court of Appeal (Lady Justice King, Lord Justice Green, and Lord Justice Dingemans) delivered judgment in AT v Secretary of State for Work and Pensions [2023] EWCA Civ 1307. The Court concluded unanimously that the EU Charter of Fundamental Rights (“Charter”) continues to apply to certain EU citizens residing in the UK.

The issue arose in a challenge concerning the entitlement of AT, a single mother and victim of domestic violence, to welfare benefits after the UK’s withdrawal from the EU. The Secretary of State for Work and Pensions had determined that AT was not entitled to such benefits because “Pre-Settled Status” under the EU Settlement Scheme is not a qualifying right of residence under the Universal Credit Regulations 2013.

The First Tier Tribunal and then the Upper Tribunal (Mr Justice Chamberlain, Judge Ward and Judge Wright) had quashed the Secretary of State’s refusal on the basis that he should have taken into account AT’s right to dignity and the rights of AT’s child under the Charter.

The Secretary of State appealed to the Court of Appeal and argued that the Charter did not apply in the UK after Brexit. The Independent Monitoring Authority for Citizens’ Rights Agreements (“IMA”) was granted permission to intervene in relation to the question of the application of the Charter. The IMA is responsible for monitoring the implementation and application of Part 2 (“Citizens’ Rights”) of the EU-UK Withdrawal Agreement (the “Withdrawal Agreement”).

AT and the IMA argued successfully that the Charter has a continued role to play under the terms of the Withdrawal Agreement. In particular, the Court of Appeal found that:

1. The Withdrawal Agreement is an international treaty but it expressly incorporates the Charter as an interpretive constraint and therefore the Charter applies to certain decisions within the scope of that agreement: see [82], [85]-[89].
2. AT had exercised rights of residence (under Article 21 TFEU and Article 13 of the Withdrawal Agreement) so she was entitled to the protection of the Charter. This followed from the reasoning of the Court of Justice of the European Union in Case C-709/20 CG v Department of Communities for Northern Ireland [2022] 1 CMLR 26 (“CG”). In CG, the Charter had applied because CG was an EU citizen who had previously exercised rights of free movement within the scope of EU law. While the facts in CG arose before the end of the transition period, the Court of Appeal found that the reasoning in CG continued to apply after the end of the transition period: [93]-[103].
3. Accordingly, the Secretary of State was required to take into account AT’s fundamental rights (and the rights of her child) when making his decision. It was not sufficient to rely on the protections available in theory under domestic legislation when there was an actual and current risk of violation of fundamental rights: [123]-[132], [157].

The Court also provided detailed guidance as to the content and meaning of the “right to dignity” under the Charter and under the common law duty of humanity: [32]-[35], [170]-[178].

The Court of Appeal’s decision is available here.