First ruling on the continued application of the EU Charter of Fundamental Rights under the EU-UK Withdrawal Agreement

14/12/22

In a decision handed down this week, the Upper Tribunal (Mr Justice Chamberlain, Judge Ward and Judge Wright) has found that the EU Charter of Fundamental Rights (“Charter”) continues to apply to certain EU citizens residing in the UK, who are within the scope of the EU-UK Withdrawal Agreement (the “Withdrawal Agreement”).

The issue arose in a challenge concerning the entitlement of AT, a victim of domestic violence and an EU citizen residing in the UK, 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 on the basis that Pre-Settled Status under the EU Settlement Scheme is not a qualifying right of residence under the Universal Credit Regulations 2013.

AT successfully appealed to the First Tier Tribunal, which found that the Secretary of State ought to have considered AT’s rights under the Charter, including her right to dignity, when making the decision.

The Secretary of State further appealed to the Upper Tribunal (Administrative Appeals Chamber) and contended that the Charter no longer applied. Both the Independent Monitoring Authority for Citizens’ Rights Agreements (“IMA”) and the AIRE Centre were 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 of the Withdrawal Agreement, which concerns EU and UK citizens’ rights after Brexit.

AT and the Interveners argued successfully that the Charter has a continued role to play under the Withdrawal Agreement. In particular, the Upper Tribunal found that:

1. The Charter has been expressly incorporated into the Withdrawal Agreement as a powerful interpretive tool (under Article 4): see Judgment [105], [108]-[110].
2. AT was within the personal scope of the Withdrawal Agreement (under Article 10) and had exercised rights of free movement in the past (under Article 13), so she was specifically entitled to the protection of the Charter: Judgment [106]. 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 Upper Tribunal found that the reasoning in CG continued to apply after the end of the transition period, albeit in modified form under the Withdrawal Agreement.
3. Accordingly, AT was entitled to the protection of the Charter and the Secretary of State was required to take into account AT’s fundamental rights when making his decision.

The Upper Tribunal’s decision is available here. Permission to appeal to the Court of Appeal was granted by the Tribunal bearing in mind the importance of the points raised in the case.