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

Lady Justice Whipple:

INTRODUCTION

The issue in this case is whether an EU national, who is living in the UK with pre-settled status (“PSS”) conferred on her pursuant to Article 18 of the Agreement on the Withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (the “Withdrawal Agreement” or “WA”), was the subject of unlawful discrimination when her claim to homelessness support under the Housing Act 1996 was refused on grounds that she was a person from abroad who was not entitled to such state support.

The decision refusing homelessness support was made by the Appellant’s local authority, Vale of White Horse District Council, the Respondent to this appeal. The Appellant requested a review which the Respondent determined against her. The Appellant lodged an appeal in the County Court which was transferred to the High Court where it was eventually heard by Mr Justice Jay who dismissed it. This is the Appellant’s appeal against the decision of Jay J.

The Appellant argues that the judge was wrong on three grounds: (i) first, in concluding that the Appellant was not residing in the UK on the basis of the Withdrawal Agreement when she says she is so residing and is protected by the equal treatment provisions of the Withdrawal Agreement; (ii) secondly, on the assumption that she was residing in the UK on the basis of the Withdrawal Agreement, in concluding that the discrimination she suffered was indirect as opposed to direct; and (iii) thirdly, and on the alternative hypothesis that the discrimination was indirect, in concluding that the discrimination was theoretically capable of objective justification (the judge thought there was insufficient evidence before him in relation to justification and reached no final view).

The response to this appeal is led by the second intervener, the Secretary of State for Housing, Communities and Local Government (previously known as the Department for Levelling Up, Housing and Communities) (the “Secretary of State”), whose submissions are supported by the Respondent. The Secretary of State submits that Jay J was right to dismiss the Appellant’s appeal, that there is no merit to the Appellant’s first ground, and that if the second or third grounds of appeal arise for determination at all, the judge correctly dismissed those grounds too. The Secretary of State relies on a Respondent’s Notice by which she challenges the judge’s conclusion that the grant of PSS involved the application of Article 13(4) of the Withdrawal Agreement; rather, she argues, the grant of PSS flowed from domestic law and Articles 18(1) and 38 of the Withdrawal Agreement not Article 13(4). She argues that the Appellant is not residing in the UK on the basis of the Withdrawal Agreement.

The Independent Monitoring Authority for the Citizens’ Rights Agreements (“IMA”) is the third intervener. The IMA aligns with the Secretary of State in submitting that the appeal should be dismissed, subject to one point of dispute which is not material to the outcome of this appeal. The IMA was established by Article 159(1) of the Withdrawal Agreement to monitor the implementation of Part Two of the Withdrawal Agreement (relating to residence and related rights of EU citizens and their families residing in the UK in accordance with EU law at the end of the transition period). The IMA was given power to intervene in legal proceedings by section 15 of and Schedule 2 to the European Union (Withdrawal Agreement) Act 2020.

There are three more interveners. The3million Ltd (“T3M”) is a not-for-profit organisation formed after the UK decided, by referendum in 2016, to leave the EU. Its focus is the protection of the rights of EU citizens living in the United Kingdom and their families. T3M broadly supports the Appellant’s case that she has a right of residence in the UK under the Withdrawal Agreement. With the Appellant, T3M suggests that the point is not acte claire and invites a reference to the Court of Justice of the European Union (“CJEU”). Shelter is a charity providing support, legal advice and representation to people with housing and homelessness issues. It too broadly supports the Appellant’s case that she has a right of residence under the Withdrawal Agreement, although it argues that the right has a different source from that relied on by the Appellant. The AIRE Centre (whose full name is Advice on Individual Rights in Europe) is a specialist legal charity working in the provision of advice, litigation support and policy to individuals such as the Appellant. It has permission to intervene in support of the Appellant’s case on discrimination, arguing that the discrimination is direct and in any event not capable of justification.

It is important that I record at the outset that the Appellant is not currently homeless. She has been provided with accommodation by Oxfordshire County Council, which is not a party to this appeal, in circumstances I shall explain. However, Lewison LJ decided that because the Appellant might yet become homeless whilst only holding PSS, the appeal was not academic and should be determined substantively.

In this judgment, I shall set out the background matters of fact and law which are not in dispute, before coming to the disputed question of the interpretation and meaning of the Withdrawal Agreement as it applies to the Appellant, which is the subject of Ground 1, before dealing briefly with Ground 2. The Court did not hear submissions on Ground 3 (justification in the event of indirect discrimination) because it was of the view that the issue would, if it was live, have to be remitted anyway for consideration of further evidence now admitted. I shall therefore not address Ground 3 at all.

I have come to the conclusion that the Appellant cannot succeed on Ground 1, because she does not reside in the UK on the basis of the Withdrawal Agreement. That being so, it is unnecessary to decide Ground 2, and as already indicated, I will not be looking at Ground 3. Jay J was right to dismiss the appeal and this further appeal must also be dismissed, for reasons set out below.