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

BACKGROUND

Facts

I take the following summary from the judgment of Jay J at paras 6-17, with some editing.

The Appellant came to the UK on 4 November 2020. She is a French national. She suffers from Ehlers-Danlos Syndrome. She has two children, aged 14 and 7 (at the time of the appeal before Jay J). The elder child has a number of medical conditions, including Autism Spectrum Disorder. That child joined the Appellant in the UK on 25 November 2020. The Appellant’s younger child also has Ehlers-Danlos Syndrome and Autism Spectrum Disorder. That child came to the UK on 22 June 2021. Both children are the subject of an anonymity order originally made in the High Court and continued by Lewison LJ on 23 October 2024.

On 18 November 2020 the Secretary of State for the Home Department (“the SSHD”) granted the Appellant PSS expiring on 18 November 2025. The letter notifying her of the grant of PSS stated that: (1) the letter itself was not proof of status because that could be viewed online; (2) the PSS gave her the right to stay in the UK under UK immigration law; (3) PSS had been granted to the Appellant “in accordance with the Withdrawal Agreement”; and (4) PSS did not itself provide a basis for entitlement to benefits and services under UK law because that depended on the relevant eligibility requirements for the specific benefit or service in question.

The Appellant obtained a job as a teaching assistant in London shortly after she arrived here but did not end up taking up the position because she could not provide the necessary references. Since then, in the light, amongst other things, of her caring responsibilities for her children, she has not been economically active.

The Appellant initially resided in private rented accommodation in London, but she had exhausted her savings by March 2021. She then moved to Wantage. On 19 October 2021 the Appellant applied to the Respondent for local authority housing under Part 7 of the Housing Act 1996 which the Respondent refused because she was not working and her visa stated she had no recourse to public funds. The Respondent refused that application on the same date.

The Appellant sought a statutory review of the decision under section 202 of the Housing Act 1996 but the Respondent upheld its earlier decision in a letter dated 21 January 2022. It is this decision that is the subject of this appeal.

The Appellant appealed to the County Court under section 204 of the Housing Act 1996. That appeal was transferred to the High Court where it was received on 20 June 2022.

On 1 December 2023, the Appellant was detained under section 3 of the Mental Health Act 1983. On 24 January 2024, she was discharged from secure psychiatric care and in consequence was owed after-care duties pursuant to section 117 of the Mental Health Act 1983.

Whilst residing in “step-down” accommodation, on 6 March 2024 the Appellant made a fresh application for housing assistance. The Respondent again determined that she was not eligible for housing assistance. On 19 March 2024 she was granted Universal Credit by the Secretary of State for Work and Pensions. On 21 March 2024 the Appellant sought a section 202 review of the Respondent’s refusal of housing assistance but that application for review was withdrawn on 30 April 2024 following the grant of an assured shorthold tenancy by Oxfordshire County Council and by agreement, a decision that she was not homeless was substituted. The Appellant accepts that she is no longer homeless or threatened with homelessness.

Brexit

On 23 June 2016, the UK decided by referendum to leave the EU. In October 2019, the European Commission and the Member States of the EU signed the Withdrawal Agreement as the means by which the United Kingdom would effect that exit from the EU. The Withdrawal Agreement came into effect at 11pm on 31 January 2020, which was the day on which the UK formally left the EU. The Withdrawal Agreement provided for a transition period (sometimes called the implementation period) which lasted from 11pm on 31 January 2020 to 11pm on 31 December 2020. EU law continued to apply in the transition period. Article 18 of the Withdrawal Agreement, which is central to this appeal, came into effect at 11pm on 31 December 2020.

In preparatory documents laid before Parliament, the government of the day explained its approach to safeguarding EU law rights held by EU citizens living in the UK and British citizens living in other Member States of the EU. The Court was taken to a number of those documents. The following are two examples. The first is an extract from a document presented to Parliament by the SSHD in June 2017:

EU Citizens who came to the UK before the EU Referendum, and before the formal Article 50 process for exiting the EU was triggered, came on the basis that they would be able to settle permanently, if they were able to build a life here. We recognise the need to honour that expectation.

The Government undertakes to treat EU citizens in the UK according to the principles below, in the expectation that the EU will offer reciprocal treatment for UK nationals resident in its member states:

after we leave the EU, we will create new rights in UK law for qualifying EU citizens resident here before our exit. Those rights will be enforceable in the UK legal system and will provide legal guarantees for these EU citizens. Furthermore, we are also ready to make commitments in the Withdrawal Agreement which will have the status of international law. The Court of Justice of the European Union (CJEU) will not have jurisdiction in the UK;

qualifying EU citizens will have to apply for their residence status. The administrative procedures which they will need to comply with in order to obtain these new rights will be modernised and kept as smooth and simple as possible;

the application process will be a separate legal scheme, in UK law, rather than the current one for certifying the exercise of rights under EU law. Accordingly we will tailor the eligibility criteria so that, for example, we will no longer require evidence that economically inactive EU citizens have previously held “comprehensive sickness insurance” in order to be considered continuously resident;”

In relation to benefits, that document said that:

“EU citizens arriving before the specified date who do not have five years’ residence at the time of the UK’s exit but who remain legally in the UK on a pathway to settled status will continue to be able to access the same benefits that they can access now – (broadly, equal access for workers/ the self-employed and limited access for those not working). If these individuals go on to acquire settled status, they will then be able to access benefits on the same terms as comparable UK residents.”

The second is a document entitled “EU Settlement Scheme: Statement of Intent” published by the Home Office on 21 June 2018 which explained who could apply under the EUSS. It said this:

Otherwise, those applying under the EU Settlement Scheme will not be required to show that they meet all the requirements of current free movement rules, such as any requirement to have held comprehensive sickness insurance or generally to detail the exercise of specific rights (e.g. the right to work) under EU law. The UK has decided, as a matter of domestic policy, that the main requirement for eligibility under the settlement scheme will be continuous residence in the UK.”

It went on to say this:

The status granted to EU citizens and their family members under the EU Settlement Scheme – settled status (indefinite leave to remain) or pre-settled status (limited leave to remain), granted under Appendix EU to the Immigration Rules – will enable them to continue their lives in the UK as much as before, with the same entitlements as now to work (subject, in light of the Withdrawal Agreement, to any relevant occupational requirements), study and access public services and benefits, according to the same rules as now.”