Relying on the Charter of Fundamental Rights in the UK after Brexit

In this blog post, the latest in a series from barristers at Monckton Chambers on the citizens’ rights provisions of the UK-EU Withdrawal Agreement, Alastair Holder Ross examines the continuing relevance of the Charter of Fundamental Rights for EU citizens living in the UK.

When the UK Government published its White Paper on the “Great Repeal Bill” in March 2017, it stated that the relevance of the EU Charter of Fundamental Rights would be “removed by our withdrawal from the EU”. Nine years later, that has not yet come to pass.

A growing body of case law interpreting the UK-EU Withdrawal Agreement (WA) has made clear that the Charter continues to protect certain EU citizens living in the UK, even after the end of the Brexit Implementation Period. For those individuals, the Charter remains a potentially powerful tool in public law challenges.

This blog surveys the relevant case law and the labyrinthine journey of the Charter into domestic law through the Withdrawal Agreement. It explains how the Charter continues to apply, who can rely on it, and why it matters for EU citizens in the UK.

The Charter: origins and function

The Charter of Fundamental Rights was drafted at the turn of the millennium with the aim of consolidating existing obligations to respect rights in EU Member States. It draws on a range of sources, including the European Convention on Human Rights (ECHR), Strasbourg jurisprudence, general principles of EU law developed by the CJEU, and the constitutional traditions of Member States, including the common law.

The Charter sets out a wide range of civil, political, economic and social rights. Under Article 51, it applies to Member States when they are “implementing Union law”. The Charter became legally binding on Member States in December 2009.

Although the Charter was not supposed to create new rights, it has provided explicit protection for certain rights that do not have direct equivalents in the ECHR or domestic law. These include human dignity (Article 1), the rights of the child (Article 24), and the right to an effective remedy and fair trial, including legal aid (Article 47). Crucially, when the Charter applies, inconsistent domestic legislation must be disapplied and not merely declared incompatible, as is the case under the Human Rights Act (HRA) for legislation which is inconsistent with the ECHR.

The Charter after Brexit

Section 5(4) of the European Union (Withdrawal) Act 2018 provides that the Charter “is not part of domestic law on or after” 31 December 2020. That is, however, subject to important qualifications which are the result of section 5(7) of the 2018 Act.

First, the position in Northern Ireland is distinct due to Article 2(1) of the Windsor Framework, which guarantees no diminution of the rights protected by the Belfast/Good Friday Agreement, including EU law underpinning those rights (including the Charter).

Second, and the focus of this blog post, the Charter continues to apply insofar as it attaches to rights preserved by the Withdrawal Agreement itself.

CG: Charter rights and pre-settled status

The first key case explaining the way in which the Charter continues to apply post-Brexit is CG v Department for Communities in Northern Ireland (Case C-709/20), a request from the Appeal Tribunal for Northern Ireland for a preliminary ruling by the CJEU.

CG, a dual Dutch-Croatian national, moved to Northern Ireland in 2018 and lived with her partner and their two young children. After fleeing domestic violence, she entered a women’s refuge with no resources and no access to state support. During the Implementation Period, she was granted pre-settled status (PSS) and later applied for Universal Credit (UC). Her claim was refused because the mere granting of PSS did not satisfy the habitual residence requirement for UC. CG challenged the refusal of state support as unlawful discrimination contrary to Article 18 TFEU.

The Court held that PSS conferred a right of residence that was more favourable than that provided under the Citizens’ Rights Directive, and that this right derived directly from Article 21 TFEU. As a result, the UK was implementing EU law when it conferred PSS on CG, such that the state was required to comply with the Charter.

The Court further held that the UK’s refusal to provide support to an EU citizen with PSS was unlawful if it exposed them or their children to an actual and current risk of violation of Charter rights, particularly Articles 1 (human dignity), 7 (private and family life), and 24 (rights of the child). The state was required to ensure that, even if benefits were refused, the individual could nevertheless live in dignified conditions with their children.

AT: Charter rights after the Implementation Period

The principles in CG were considered domestically in AT v Secretary of State for Work and Pensions [2021] EWCA Civ 1307, which Clíodhna Kelleher has previously discussed here.

AT, a Romanian national, arrived in the UK with her partner and obtained PSS during the Implementation Period. Like CG, she fled domestic violence, moving into a charity-run refuge with her young child. She had minimal funds and insufficient income to meet their basic needs. She applied for, and was refused, UC. The Upper Tribunal held that, like CG, she was protected by the Charter, including the Article 1 right to dignity.

The Secretary of State appealed on the basis that, unlike CG, AT had applied for UC after the end of the Implementation Period and therefore the Charter no longer applied. The Court of Appeal rejected that argument. It held that the relevant trigger for Charter protection was not the date of AT’s application for UC, but rather her exercise of the Article 21 TFEU right before the end of the Implementation Period. Since AT had exercised her free movement rights in time, and had PSS (a right of residence under the WA) the UK was required to ensure her Charter rights were effective.

Green LJ gave a detailed account of the “journey of EU law into domestic law” through the WA. In summary:

• Article 21 TFEU provides the EU law right to free movement and residence.
• Article 13 WA, which provides for continuing reciprocal rights of residence, cross-refers to Article 21 TFEU and therefore preserves that EU law right for qualifying EU citizens.
• Article 21 TFEU must, under Union law, be interpreted consistently with the Charter, which is expressly recognised as a part of ‘Union law’ under Article 2 WA.
• Article 4 WA requires the UK to give the WA the same effect in the UK as it has in EU Member States. Since Member States must interpret the WA consistently with Union law, and therefore the Charter, the same result is required in the UK.
• Section 7A EUWA 2018 gives domestic effect to all directly effective WA rights, including Charter-derived rights.

Here for Good: Who can rely on the Charter?

CG and AT accordingly established that the Charter continues to protect certain qualifying EU citizens in the UK post-Brexit. That begs the next question – which EU citizens?

That question was considered in R (Here for Good) v Secretary of State for the Home Department [2024] EWHC 2817 (Admin), a case concerning changes to the Immigration Rules under which late applications for PSS would be treated as invalid unless the applicant could show reasonable grounds for delay. The claimant argued that the absence of a merits-based appeal to such a decision breached the Article 47 Charter right to an effective remedy and fair trial.

Dove J held that Charter protection is limited to those with rights of residence under Article 13 WA. In practice, this means EU citizens who have been granted PSS, or who have made a valid application for it — either in time, or late with reasonable grounds. No other EU citizens in the UK can rely on the Charter.

While the number of EU citizens in this position will diminish over time, as people attain settled status or leave the UK, it is a cohort which continues to have a powerful tool at its disposal for the reasons considered next.

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Why rely on the Charter?

Although the Charter protects numerous rights, it has been a particularly valuable tool for EU citizens who have applied for, and been refused, welfare benefits, housing and other state support. As Reuben Andrews has explored further in another blog post, here, EU citizens with PSS but without a qualifying right to reside may still access support where refusal by the state would create an actual and current risk of indignity, contrary to Article 1 of the Charter. The remainder of this blog considers why a claimant might rely on the Article 1 Charter right rather than the rights protected by the ECHR.

Article 1 focuses on a person’s capacity to meet their basic needs, including (but not necessarily limited to) a place to live, heating, food, clothing and personal hygiene.

In AT, the Court of Appeal emphasised that Article 1 of the Charter is a freestanding right requiring the state to respect and protect human dignity. It is not coextensive with either:

• Article 4 of the Charter / Article 3 ECHR (inhuman or degrading treatment), or
• Article 7 of the Charter / Article 8 ECHR (private and family life).

While there may be significant evidential overlap, Green LJ rejected the idea that a breach of Article 1 necessarily depends on establishing a breach of Articles 3 or 8 ECHR. The analytical frameworks are distinct, albeit related, and the question for Article 1 is not whether the person has suffered inhuman or degrading treatment, but whether there is an actual and current risk of indignity. The Court of Appeal acknowledged that Article 1 of the Charter may therefore protect individuals whose circumstances fall short of the Article 3 ECHR threshold. The Court of Appeal declined to define the precise “daylight” between those provisions, but its reasoning makes clear that they are not coterminous.

That analysis suggests there may be circumstances where it is advantageous for a claimant to plead a breach of Article 1 instead of, or in addition to, ECHR rights, in particular for the following reasons:

• The state as a whole is responsible. In AT, the Court of Appeal made clear that the state as a whole has a continuing duty to ensure Charter rights are capable of being effectively enforced (see paragraphs 160 to 169). The Secretary of State may, in certain circumstances, be held responsible for a Charter breach even where the relevant decision was taken by a local authority or other public authority.

• Only state support is legally relevant. Under Article 1, a person’s capacity to alleviate the actual and current risk of indignity is to be assessed by reference to state measures only. Availability of charitable or other non-state support does not satisfy that legal duty, because the state itself must ensure Charter rights are effectively protected.

• Precarious provision is insufficient. Temporary arrangements (such as short-term refuge accommodation) will be insufficient to comply with the Charter (see paragraph 112). In this respect it appears that the Homelessness Code of Guidance, updated at §7.41 to account for AT, may misstate the law insofar as it suggests that short-term hostel accommodation will suffice to avoid a Charter breach.

• The available remedies. As with all Charter rights, inconsistent domestic legislation must be disapplied, not merely declared incompatible as under the HRA.

Conclusion

Nearly a decade after the Government declared its intention to remove the Charter from domestic law, it continues to operate as a meaningful and, in some cases, decisive source of protection for certain EU citizens in the UK.

While this blog discusses Article 1 and interrelated rights, numerous other rights are protected by the Charter, which EU citizens may also seek to bring into play in the right case. 

In Article 1 cases, the Charter’s continuing practical importance will be for the most vulnerable: those fleeing domestic violence, lone parents unable to work, primary carers, people living with illness or disability, and those who are homeless, facing homelessness, or reliant on temporary shelters or foodbanks. For these EU citizens, the Withdrawal Agreement has provided a route to state support that would otherwise have been blocked.

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