Court of Appeal ruling on the right to work under the EU-UK Withdrawal Agreement

11/12/24

The Court of Appeal handed down its decision yesterday in R (Ali) v Secretary of State for the Home Department [2024] EWCA Civ 1546. The appeal addresses the extent to which a “dependent” family member is entitled to exercise rights to work in the UK under the EU-UK Withdrawal Agreement.

The appeal raised a difficult and novel question as to the interaction between: (i) the definition of a “dependent” family member in Articles 9 and 10 of the Withdrawal Agreement, which requires material and financial dependence on the sponsor as a condition of residence; and (ii) the express right to work granted to family members under Article 22 of the Withdrawal Agreement. In Ali, the Appellant’s application for indefinite leave to remain was refused because she did not qualify as a “dependent” child over the age of 21 under the EU Settlement Scheme (“EUSS”). Although the Appellant had arrived in the UK as a child under the age of 21, by the time she applied under the EUSS she was over 21 and had ceased to be financially dependent on her mother (an Italian national). This was in part because she had taken up the right to work.

The Independent Monitoring Authority (“IMA”) was granted permission to intervene in support of the Appellant. The IMA argued that the Home Office and the High Court had erred in finding that a dependent family member could not exercise their rights to work if such work would make them financially independent. Such an approach would lock dependent family members into a state of dependency and render illusory the right to work.

The Court of Appeal agreed. The Court found that the right to work “trumped” the definition of dependency in EU law and in the Withdrawal Agreement. Green LJ found that dependency is to be measured when the family member applies to join the sponsor in the host state. After that, they are entitled to work even if they cease to be dependent on the sponsor as a result: [111]-[113]. Vice President Underhill (with whom Singh LJ agreed) wrote separately and found for the Appellant on a narrower basis, in particular by reference to pre-Brexit EU case law which was binding under the Withdrawal Agreement: [154]-[155].

The Secretary of State for the Home Department has sought permission to appeal to the Supreme Court.

The Judgment is here.