The Court of Appeal has handed down judgment in SSWP v AT [2023] EWCA Civ 1307. In it, it has confirmed that the Charter of Fundamental Rights of the European Union (“the Charter”) applies to the interpretation of the Withdrawal Agreement (“the WA”), a decision with far-reaching consequences for the millions of individuals exercising rights of residence under the WA. In this blog post, Clíodhna Kelleher of Monckton Chambers discusses the judgment.
Facts and background
AT is a Romanian national who obtained pre-settled status (“PSS”) under the EU Settlement Scheme. She moved to a women’s refuge following domestic abuse by her partner and applied for Universal Credit. Her application was refused on the basis that she did not satisfy the residence requirement for obtaining UC as she had only limited leave to remain in the UK based on her grant of PSS. She contended that the defendant ought to have considered her specific circumstances in determining whether she was entitled to UC; that it was not enough to apply a blanket rule of non-entitlement if a refusal of social support would lead to a breach of her rights under the Charter. Accordingly, the fulcrum of the judgment is whether the Charter applies to the interpretation of the WA.
Although the judgment also considers various other questions, I confine the analysis in this post to the issues concerning the Charter.
Pausing there, a central point of context for understanding the judgment and how rights of residence operate under the WA in the United Kingdom is that the UK Government elected to go further than was strictly required under the terms of the WA in granting residence rights to EU citizens and their family members.
The WA, as in EU law, requires that individual beneficiaries were residing “in accordance with EU law” in order to benefit from its protections. This is clear from Article 10 WA, which sets out the categories of people who are in scope of the Agreement. The phrase “In accordance with EU law” means, in simplified terms, that the individual was a worker, or was self-employed, or was a student with comprehensive sickness insurance, or was self-sufficient, or was a family member of someone who met one of the above criteria in the UK before the end of the transition period. Of course, many EU citizens living in the UK at the time of the negotiation of the WA would not have fulfilled these requirements.
The UK government essentially waived these criteria, and only required an applicant to the EU Settlement Scheme to establish that they were an EU citizen living in the United Kingdom before the end of the transition period, or a qualifying family member. This gives rise to two different types of beneficiaries of the WA under UK law: those who did fulfil the criteria, who are sometimes known as the “true cohort”, and those who did not but were granted status under the EUSS anyway, who are sometimes known as the “extra cohort”.
A second important point of context for understanding the judgment is that a very similar case has already been determined by the CJEU in C-709/20 CG v Department for Communities in Northern Ireland (“CG”). In CG, the CJEU considered the position of another victim of domestic abuse, who had also applied for UC and been refused it on the basis that she did not have a qualifying right to reside in the UK, as a holder of PSS. CG differed from AT because CG made an application for UC prior to the end of the transition period, during which EU law continued to apply with full force to the UK (Article 127 WA), whereas AT applied afterwards, and so the WA was the sole mechanism by which EU law was relevant to the determination of her claim.
In CG, CG was in the extra cohort. She had never worked in the UK and had no resources to support herself or her children. Nonetheless, the CJEU determined that the United Kingdom was implementing EU free movement law when it granted her a right of residence in the United Kingdom, in spite of the fact that she would not have qualified for residence on a bare reading of the WA. This carried with it the fundamental rights guaranteed in the EU legal order, which apply in “all situations governed by EU law” (para 86), and required the United Kingdom to comply with the Charter (para 88). As a result:
“92 … the competent national authorities may refuse an application for social assistance, such as Universal Credit, only after ascertaining that that refusal 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. In the context of that examination, those authorities may take into account all means of assistance provided for by national law, from which the citizen concerned and his or her children may actually and currently benefit.”
Application to AT’s case
In AT, the SSWP argued that CG did not apply outside of the context of the transition period, and that it was “baffling and perplexing, created new and unheralded substantial financial burdens on the state, did not bind, and should not be followed”.
The Court disagreed: like CG, AT’s right to reside pre-dated the transition period and subsisted beyond it and was converted into an “international law right under the Withdrawal Agreement”. The determination in CG was not and ought not to be confined to the position of individuals who applied for UC before the transition period. AT’s historical exercise of a right of residence was a continuing right that engaged the Charter and triggered an obligation on the host state to ensure that it would be exercised in the future with dignity (paras 97 – 99).
A central element of the scaffolding for this conclusion is the Court’s articulation of how the Charter finds its way into the interpretation of the WA. The WA does not refer to the Charter in Article 4, the provision that deals with interpretation of the Agreement:
“1. The provisions of this Agreement and the provisions of Union law made applicable by this Agreement shall produce in respect of and in the United Kingdom the same legal effects as those which they produce within the Union and its Member States. Accordingly, legal or natural persons shall in particular be able to rely directly on the provisions contained or referred to in this Agreement which meet the conditions for direct effect under Union law.
2. The United Kingdom shall ensure compliance with paragraph 1, including as regards the required powers of its judicial and administrative authorities to disapply inconsistent or incompatible domestic provisions, through domestic primary legislation.
3. The provisions of this Agreement referring to Union law or to concepts or provisions thereof shall be interpreted and applied in accordance with the methods and general principles of Union law.
4. The provisions of this Agreement referring to Union law or to concepts or provisions thereof shall in their implementation and application be interpreted in conformity with the relevant case law of the Court of Justice of the European Union handed down before the end of the transition period.”
The SSWP argued that this omission was telling, and that it resulted in the exclusion of the Charter as a tool for interpreting the WA. The Court flatly disagreed. Declining to be drawn into assertions about the negotiating positions of the UK and the EU (“The duty of this court is not therefore to work out whether, in the hurly burly of negotiations the UK or the EU got a worse deal…”) the Court determined that, as secondary, or supplementary, rights which only apply if another EU right is in play, it would be “surprising” if the provisions of the Charter had been replicated expressly in the Agreement. Rather, they are “provisions of Union law made applicable by this Agreement” within the meaning of Article 4(1) of the WA.
Further, Article 4(1) WA requires that the provisions of the WA produce the same outcomes in the UK as are produced in the EU. This required the WA to be interpreted the same way in the UK as in the EU, and it was clear that the EU would interpret its provision in light of the Charter, which form an essential part of the EU legal order (para 85).
Moreover, Article 4(3) WA requires that provisions of the WA that refer to EU law or to EU law concepts have to be interpreted in accordance with the methods and general principles of EU law. This included the Charter (para 86).
General interpretation of the WA
The judgment will prove highly significant for individuals in the same position as CG and AT, namely, those in destitution with no recourse to UC, but the principles articulated in it are likely to be important for those in a wider variety of circumstances under the WA. The judgment is clear that the Charter applies only to the position of those exercising rights under the WA, but the circumstances in which rights are exercised under the WA are very wide. The WA governs the entire “life-cycle” of an individual’s residence in the UK: how and in what circumstances a right is to be granted, the conditions that may (and may not) be attached to the right of residence, how the right can be lost, the circumstances in which an individual can be expelled from the UK, and so on.
Although the current focus of the case law on the WA has, understandably, been on the initial granting of status under the Agreement given how recent the entry into force of the Agreement is, it is likely that the focus will change in the future as the volume of applications diminish to instead encompass the wide variety of other decisions made under the WA, including restrictions on rights of residence once granted. The consequence of the judgment seems clear: the Charter will apply to those decisions.
More broadly, the Court has plainly rejected the SSWP’s attempt to cast the WA as a flattened version of Union law subject only to the language of the Agreement itself. Although the judgment is careful to describe the provisions of the WA as international law, it is clear that the Court has opted for an articulation of the WA that is dynamic and that is, at least in certain respects, still in animated dialogue with its EU law origins.
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