Revised Memo to decision makers confirms that the DWP accepts that SSWP v AT can apply to the non-EU family members of EU citizens who have pre-settled status (PSS).
ADM Memo 06-24: AT and the EU Charter of Fundamental Rights Assessment
.This Memo clarifies the position for Decision Makers following the judgment of the Court of Appeal handed down on the 08 November 2023 in the case of SSWP v AT [2023] EWCA Civ 13071. The Secretary of State applied for permission to appeal to the Supreme Court and this was refused on the 07 February 2024, meaning the CoA decision is now final and needs to be implemented.
This judgment relates to EU national claimants with pre-settled status under the EU Settlement Scheme who have no other legal right to reside for the purpose of the habitual residence test
.This judgment applies to claims made for Universal Credit (UC), State Pension Credit (SPC), Housing benefit (HB).
This affects new claims, existing cases at the mandatory reconsideration stage, and HRT review cases (both single and joint claimants) which relate to entitlement of EU nationals with PSS from 12 December 2022 onwards.
Background
The case of AT concerns an EU national with PSS who claimed UC in 2021. As she had no qualifying right to reside for the purposes of UC, her claim was disallowed – she was not considered to be in GB. AT appealed to the First-Tier Tribunal (“FTT”) who allowed her appeal on the grounds that without UC, AT and her daughter would not be able to live “in dignified conditions” in accordance with the judgment of CG v the Department for Communities in Northern Ireland C-709/201 (“CG”).
CPAG – Destitute EU nationals with PSS can rely on EU Charter of Fundamental Rights to obtain Universal Credit – SSWP v AT (AIRE Centre and IMA Intervening) [2022] UKUT 330 (AAC); SSWP v AT [2023] EWCA Civ 1307
CPAG information note for welfare rights advisers
