CA-2024-001773 - [2025] EWCA Civ 1057

Article 23

Finally, I come to Article 23. The Appellant’s case is that the reference to residing “on the basis of this Agreement” includes those residing on the basis of PSS. The Appellant submits that the judge was wrong to conclude that Article 23 was intended to mirror Article 24 of the CRD and that Article 23 is broader because the protection against discrimination extends to all those EU citizens residing on the basis of rights and permissions in the Withdrawal Agreement, including those with PSS. The opening words of Article 23, which refer in terms to Article 24 of the CRD, import only the general principles of non-discrimination. On facing questioning from the Court about the purpose and scope of the derogation at Article 23(2), Mr Cox submitted that the UK had chosen to grant a blanket level of protection to all those with PSS, pursuant to Article 23(1) properly interpreted in light of Articles 13 and 18, and the UK had not implemented any measures pursuant to the derogation at Article 23(2).

To recap, Article 23(1) provides in material part (with emphasis added):

“In accordance with Article 24 of [the CRD], subject to the specific provisions provided for in this Title and Titles I and IV of this Part, all Union citizens or United Kingdom nationals residing on the basis of this Agreement in the territory of the host State shall enjoy equal treatment with the nationals of that State within the scope of this Part. …”

Much of the ground in answer to Mr Cox’s arguments has already been covered in my discussion of Articles 13 and 18. But there are a number of additional points which emerge from Article 23 to undermine the Appellant’s case further. The first is that Article 23(1) of the Withdrawal Agreement mirrors, almost word for word, Article 24(1) of the CRD. Like the judge below, I am sure the match is deliberate. A similar point could be made by comparing Article 23(2) of the Withdrawal Agreement with Article 24(2) of the CRD – again, very similar. It is reasonable to infer that these matched provisions are performing the same function in each instrument. Given that it is established as a matter of EU law that the right of equal treatment extends only to rights specifically provided for in the CRD, the natural reading of the Withdrawal Agreement must be to similar effect.

That point, about the symmetry between Article 24 CRD and Article 23 of the Withdrawal Agreement, finds further support in the introductory words of Article 23(1): “In accordance with Article 24 of [the CRD]…”. These words import into Article 23(1) not just parts of, but the whole of, the EU acquis - comprising the TFEU, relevant directives, regulations and the case law of the CJEU – as it touches on Article 24 of the CRD. Thus, the propositions summarised at paragraph 55 above are drawn in and are applicable. Those cases are unhelpful to the Appellant’s case: they confirm that the equal treatment right is limited to rights within the CRD. The reason, surely, for importing those propositions and the material which informs them into Article 23(1) is to ensure that the scope of the equal treatment protection in Article 23(1) remains similarly limited.

The Appellant relies on the words “on the basis of” the Withdrawal Agreement to press her case. But those words echo Article 24(1) of the CRD. They import the same body of law: in CG, the CJEU emphasised those words in the context of distinguishing between EU rights of residence (which were granted “on the basis of” the CRD) and the more generous domestic law rights granted by way of PSS which were not (see proposition (iv) at paragraph 55 above). Thus the words “on the basis of” have a specific meaning in the case law of the CJEU, pointing to rights recognised in (and subject to conditions and limitations under) the CRD, and now retained by the Withdrawal Agreement, but going no wider.

If the Appellant is correct, it is difficult to understand how the derogation at Article 23(2) is meant to work. That derogation removes the obligation to pay social benefits and student grants to certain groups who do have residence rights, including those who are resident during the first three months (cf Article 6) or job-seekers (Article 14(4) of the CRD) or their family members. The Appellant’s analysis effectively overrides this derogation, rendering it meaningless, because on the Appellant’s case such benefits would be payable to all those who have PSS, regardless of their particular status under the CRD. The derogation at Article 23(2) lives much more comfortably alongside the Secretary of State’s case, as a permitted derogation from equal treatment for certain individuals with EU law residence rights preserved by the Withdrawal Agreement. This would ensure that Article 23(2) operated in a manner analogous to Article 24(2) of the CRD, on which it is undoubtedly based.

There is no difficulty in understanding Article 23 on the Secretary of State’s case, because on her case it is a direct analogue of Article 24 of the CRD, it is in line with the case law of the CJEU, the derogation in Article 23(2) is consistent in scope with that set out at Article 24(2) of the CRD, and it fits with the recitals of the Withdrawal Agreement aimed at securing an orderly exit and preserving the status quo ante. I accept the Secretary of State’s case on Article 23.

I have rejected the Appellant’s case on Articles 13, 18 and 23. But before coming to any final conclusions on the appeal, it is appropriate to address a number of other points on interpretation raised by other parties.