Secretary of State for Work and Pensions v AT (Aire Centre and IMA intervening) UC
| Jurisdiction | UK Non-devolved |
| Judge | Mr Justice Chamberlain,Judge Ward,Judge Wright |
| Neutral Citation | [2022] UKUT 330 (AAC),[2022] UKUT 330 (AAC) |
| Subject Matter | European Union law - other,Universal Credit - Other,Ward,C,Three Judge Panel |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Published date | 20 December 2022 |
SSWP v AT (Aire Centre and IMA Intervening) [2022] UKUT 330 (AAC)
Case No: UA-2022-001067-USTA
IN THE UPPER TRIBUNAL (ADMINISTRATIVE APPEALS CHAMBER)
ON APPEAL FROM THE FIRST-TIER TRIBUNAL (SOCIAL ENTITLEMENT
CHAMBER)
ORDER
Pursuant to rule 14(1) of the Tribunal Procedure (Upper Tribunal) Rules 2008, there
is to be no disclosure or publication of any matter likely to lead members of the
public to identify the Respondent, her daughter, her support worker or the body
providing the refuge used by the Respondent without the permission of a judge of
the Upper Tribunal. Breach of this order may constitute contempt of court and be
punishable by a fine or imprisonment.
Before :
MR JUSTICE CHAMBERLAIN
UPPER TRIBUNAL JUDGE WARD
UPPER TRIBUNAL JUDGE WRIGHT
SSWP Appellant
-and-
AT Respondent
-and-
(1) THE AIRE CENTRE
(2) THE INDEPENDENT MONITORING AUTHORITY Interveners
Julia Smyth, James Cornwell and Stephen Kosmin
(instructed by the Government Legal Department) for the SSWP
Thomas de la Mare KC and Tom Royston
(instructed by the Child Poverty Action Group) for AT
Galina Ward KC and Yaaser Vanderman
(instructed by the AIRE Centre) for the 1st Intervener
Marie Demetriou KC, Emma Mockford and Aarushi Sahore
(instructed by the IMA) for the 2nd Intervener
Hearing dates: 15 & 16 November 2022
Decision date: 12 December 2022
UA-2022-001067-USTA
SSWP v AT (Aire Centre and IMA Intervening) [2022] UKUT 330 (AAC)
1
DECISION
The decision of the Upper Tribunal is to dismiss the Secretary of State’s appeal.
The decision of the First-tier Tribunal made on 31 May 2022 under case number
SC299/21/00158 did not involve any material error of law.
REASONS
Introduction
1 AT is a Romanian national. After she came to the UK in August 2016, she lived
with her then partner, V, also a Romanian national. Their daughter, D, was born
in the UK in February 2018. In June 2018, she returned with V to Romania for
what he said was a holiday. When they got there, he cut up her passport and told
her she must remain in Romania with D while he returned to the UK. AT obtained
new travel documents. In October 2020, V returned to Romania and brought AT
and D back to the UK with him. In December 2020, AT was granted Pre-Settled
Status (“PSS”) under the EU Settled Status Scheme (“EUSS”), pursuant to
Appendix EU of the Immigration Rules (“Appendix EU”).
2 In January 2021, there was an incident at the home AT shared with V. The police
were called and V was arrested, though not charged. AT and D were temporarily
placed in a hotel and then went to a refuge run by a charity. In her evidence
before the First-tier Tribunal (“FtT”), AT explained that she had been subjected
by V to domestic violence throughout the course of their relationship, including
when she had been pregnant. V had controlled all aspects of her life. After their
return to the UK, he had prevented her from working by refusing to pay for
childcare and had cut up AT’s and D’s passports. He had made threats to kill her,
in particular if she moved back to Romania. He had also held her captive and
subjected her to emotional and physical abuse.
3 AT left the home she shared with V with no cash at all. After arrival at the refuge,
her resources comprised £200 in a bank account into which her child benefit had
been paid, a £25 Tesco voucher and £15 from a fellow resident. She continued
to receive child benefit (£84.20 paid every 4 weeks). This was not enough to
cover her and D’s basic needs. So, she applied for universal credit (“UC”).
4 On 15 February 2021, her claim was refused by the Secretary of State for Work
and Pensions (“SSWP”) because she had not demonstrated any qualifying right
to it. This was because UC is only available to those who are “in Great Britain” (s.
4(1)(c) of the Welfare Reform Act 2012) and persons granted limited leave to
remain in the United Kingdom pursuant to Appendix EU are for these purposes
treated as not in Great Britain (reg. 9(1), (2) and (3)(c)(i) of the Universal Credit
Regulations 2013 (“the UC Regulations”: SI 2013/376)).
UA-2022-001067-USTA
SSWP v AT (Aire Centre and IMA Intervening) [2022] UKUT 330 (AAC)
2
5 AT appealed to the First-tier Tribunal (“FtT”). Her appeal was heard in May 2022
by FtT Judge G. Newman (“the judge”). In a decision dated 31 May 2022, he
concluded that, without UC, AT and D would not be able to live in dignified
conditions. In the light of the judgment of the Court of Justice of the EU (“CJEU”)
in Case C-709/20 CG v Department of Communities for Northern Ireland [2022]
1 CMLR 26, the judge considered himself bound by s. 5(5) of the European Union
(Withdrawal) Act 2018 (“the 2018 Act”) to disapply reg. 9(3)(c)(i) of the UC
Regulations. He therefore allowed the appeal and set aside SSWP’s decision,
substituting a decision that AT is entitled to UC.
6 SSWP has appealed against the judge’s decision on the ground that the judge
was wrong to regard CG as applicable to those with PSS after 31 December
2020, the end of the “transition period” in the Withdrawal Agreement between the
UK and EU on the UK (“the WA”).
7 This is one of a number of appeals raising the same issue. It was identified as a
suitable lead case and designated by the Chamber President, Farbey J, as
involving a question of law of special difficulty and/or an important point of
principle and allocated to a three-judge panel. In fact, it involves several such
questions. The Aire Centre and the Independent Monitoring Authority (“IMA”)
were permitted to intervene.
8 The legal issues between the parties include some that were not determined by
the judge and others that were not even canvassed before him. The decision was
taken to leave some of these to be argued, if necessary, at a later hearing. During
the hearing on 15 and 16 November 2022, the parties proposed, and we agreed,
that we should concentrate exclusively on the issues relating to the applicability
and effect of CG. This decision is accordingly limited to those issues. As our
decision on the applicability and effect of CG is determinative of the appeal, it is
not necessary for us to decide any of the other issues.
The issues for determination
9 The parties now agree that s. 5(5) of the 2018 Act does not require or authorise
the disapplication of reg. 9(3)(c)(i) of the UC Regulations in this case. However,
AT submits that the error was immaterial because s. 7A of the 2018 Act (which
gives effect in domestic law to the WA) does. The submission has three limbs.
First, under the WA, the UK is required, when deciding claims for UC by persons
in AT’s position, to comply with the EU Charter on Fundamental Rights (“the
Charter”). Second, in the light of the judgment in CG, the Charter required SSWP
and the judge to check that the refusal of UC would not leave AT unable to live in
dignified conditions. Third, the judge’s decision that it would contains no error of
law. The Aire Centre supports AT in the first two submissions. The IMA supports
AT in the first submission but says nothing about the second and third.
10 SSWP takes issue with each of AT’s submissions. As to the first, he denies that
the Charter applied at all, so that the reasoning in CG is not applicable. Second,
he submits that, in any event, CG does not require an individualised assessment;
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...suitable for that purpose and those issues came to be considered by the Upper Tribunal in SSWP v AT (AIRE Centre and IMA intervening) [2022] UKUT 330 (AAC), in which there has been a subsequent appeal to the Court of Appeal in which, at the time of issue of this decision, judgment is awaite......