The Court of Appeal has delivered judgment in the case of Secretary of State for Work & Pensions v AT, which is now the leading case on the operation of Parts 1 and 2 of the Withdrawal Agreement.
The case follows on from the litigation in Fratila (Court of Appeal and Supreme Court) and CG (CJEU on referral from a NI tribunal) and concerns the rights of those with pre-settled status (“PSS”) under the Withdrawal Agreement. The DWP introduced regulations whose effect was to limit access to a variety of key social security benefits for those with PSS unless they were economically active. The legality of this stance went to the CJEU which, in the last case referred by a UK Court, decided in CG it did raise issues falling in scope of EU law, even though the right to reside was purely domestic, but was compatible with EU law subject one proviso: the end result of denial of benefits could not be one that breached the applicants rights under the Charter of Fundamental Rights of the EU, specifically the Article 1 right of dignity, particular account being taken of the interests of the young children involved.
AT, who was a domestic violence victim who had fled her family home with her young child after IP completion day, then argued that a similar analysis applied to her ‘grandfathered’ rights under the Withdrawal Agreement. The AIRE Centre and the Independent Monitoring Authority both intervened to support her arguments on the operation of the Withdrawal Agreement.
AT prevailed before the UT (Chamberlain J, sitting with Judges Ward and Wright) and now on appeal to the Court of Appeal (King, Green and Dingemans LJJ). The Court of Appeal judgment of Green LJ (the lead judgment) is notable for: its detailed review of the operation of Part 1 and 2 of the Withdrawal Agreement (the first in depth analysis at this level); its finding that AT had preserved rights under Article 13 WA; its conclusions as to the continued force and operation of the CFREU in connection with the Withdrawal Agreement; its analysis of the concept of dignity (and its relation to the common law duty of humanity); and its analysis of the requirements of the CG judgment, notably rejecting an argument that ‘systemic compliance’ was sufficient or that theoretically available remedies under s.17 of the Children Act might be sufficient to meet the burden of CFREU compliance identified by the CJEU. The Court of Appeal refused permission to appeal to the Supreme Court.
AT was represented in the UT and Court of Appeal by Thomas de la Mare KC, and Tom Royston of Garden Court North, instructed by Martin Williams and Claire Hall of the Child Poverty Action Group (all of whom acted for the claimants in Fratilla and CG).
The judgment may be found here.