Court decision on welfare provision has major implications - Ashley Fleming

A recent case where a Universal Credit application was denied could have serious implications for local authorities and other welfare providers, and how they support EU nationals seeking to live or stay in the UK. A court decision last month means the UK still has a responsibility to provide welfare support to certain EU nationals after Brexit.

The case relates to AT, a Romanian national with pre-settled status under the EU Settlement Scheme. She applied for Universal Credit (UC) to support herself and her young daughter, having left an abusive relationship. Her application was refused by the Secretary of State for Work and Pensions’ (SSWP), who said she had not demonstrated any qualifying right to reside. Under the UC Regulations, the benefit is only available to those who are “in Great Britain”. A person granted limited leave to remain (for example, pre-settled status) is treated as not being “in Great Britain”.

AT successfully challenged this refusal in the Court of Appeal. The SSWP sought to appeal that decision to the UK Supreme Court. The UK Supreme Court’s refusal of permission to appeal gives rise to significant implications for the eligibility of certain EU citizens to access public funds and services.

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The decision in AT’s case relates to her entitlement to rely upon the EU Charter of Fundamental Rights, which brings together the most important personal freedoms and rights that can be enjoyed by EU citizens, even in a post-Brexit UK. The Court of Appeal determined that the Charter still applied to AT, despite the changes to the UK laws due to the Withdrawal Agreement.

Ashley Fleming is a senior associate in Harper Macleod’s immigration teamAshley Fleming is a senior associate in Harper Macleod’s immigration team
Ashley Fleming is a senior associate in Harper Macleod’s immigration team

One of the key purposes of the Withdrawal Agreement is “to provide reciprocal protection for Union citizens and for United Kingdom nationals, where they have exercised free movement rights before a date set in this Agreement, and to ensure that their rights under this Agreement are enforceable and based on the principle of non-discrimination”. As such, it was incumbent on the SSWP to carry out an individualised assessment of AT’s circumstances to determine whether the refusal of UC would breach her right to dignity, as protected by Article 1 of the Charter. Where, as was the case of AT, a refusal would mean a person would be exposed to an actual or current risk that they could not live in the UK in dignified conditions, UC should be awarded.

The case is significant in that, although it applies to the provision of UC, local authorities need to be aware as they are on the front line of welfare provision and it may impact on their processes and decision-making in relation to providing other forms of assistance to individuals granted pre-settled status under the EU Settlement Scheme.

The case should prompt councils across the UK, including Scotland, to review their approach and policies relating to grant of welfare entitlements. In an era when local government budgets are already under intense pressure from a variety of angles, including budgets for the care they provide to refugees or those seeking asylum and settlement, this decision may challenge local authorities to deliver even more, with less, for people in need of help.

Ashley Fleming is a senior associate in Harper Macleod’s immigration team. This article was co-written by Calum Gee, senior associate in the dispute resolution team.

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