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

Purpose of the Withdrawal Agreement

I shall consider the detail of the Appellant’s arguments below, but it is worth making three points at the outset, related to the overarching issue of the common intention of the signatories. The first is that the object and purpose of the Withdrawal Agreement is explained in the recitals, and the key message to be drawn from the recitals is that the Withdrawal Agreement is intended to secure an orderly withdrawal of the UK from the EU, whilst at the same time protecting EU and UK nationals who had exercised their right of free movement under EU law before 31 December 2020. There is no suggestion in the recitals that the UK intended to broaden eligibility to social benefits for EU nationals. The second point builds on the first. Given the context of the Withdrawal Agreement, which put into effect the UK’s decision to leave the EU, it is inherently unlikely that the UK would have intended to broaden the cohort of EU nationals entitled to claim UK social benefits when it left the EU. Yet the effect of the Appellant’s argument is to confer on EU nationals living in the UK who are not economically active a right to claim social benefits (including housing assistance) even though they had not previously possessed that right in EU or domestic law. That leads to the third observation: any change of the sort for which the Appellant argues would need to be very clearly expressed in the Withdrawal Agreement. It would mark a significant departure from the position as it existed before Brexit and it would involve a costly expansion of the welfare state in favour of EU citizens.

I turn then to consider the parts of the Withdrawal Agreement on which the Appellant’s arguments are centred.