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

Conclusion on Ground 1

I am persuaded, by a healthy margin, that the Secretary of State offers the better arguments in response to Ground 1. The Withdrawal Agreement was intended only to preserve existing EU law rights. That the UK granted PSS toEU nationals, regardless of whether they were complying with the limitations and conditions of the CRD, was more generous than required by EU law; to the extent that it resulted in rights and permissions to remain in the UK which existed independently of rights and permission in EU law, those were rights and permissions in domestic law only. The Appellant has no EU law right (as preserved by the Withdrawal Agreement) to reside in the UK. She may yet come into an EU law right, depending on her personal circumstances. As matters stand, her right of residence is not protected by the Withdrawal Agreement. She is not completely without EU law protection because she has Charter protection (see CG and AT). But this appeal does not rest on the Appellant’s Charter rights and there is no suggestion in this case that her Charter rights are being or might be infringed.

That result is consistent with the context of the Withdrawal Agreement, by which the UK agreed the terms of its departure from the EU. It is also consistent with the purpose of the Withdrawal Agreement which was to preserve rights and to ensure reciprocity of treatment as between UK nationals living in other EU Member States and EU citizens living in the UK. The parties to the Withdrawal Agreement did not intend to alter the status quo ante under which EU citizens exercising their right of free movement to come to the UK but lacking any EU law right under the CRD were not permitted to claim housing assistance or other benefits. The Appellant’s Ground 1 therefore fails.