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

THE ISSUES

It is appropriate at this point to frame the issues for determination in this appeal. On 1 February 2020, the transition period began. During this period, EU law continued to apply in the UK save to the extent that the Withdrawal Agreement provided otherwise. On 4 November 2020, during the transition period, the Appellant came to the UK. She was entitled to travel to the UK at that time and in doing so was exercising her right of free movement in EU law – see Article 21(1) of the TFEU. She had an enforceable EU law right to reside in the UK, even though she was not economically active, for a period of three months under Article 6 of the CRD (implemented into domestic law by regulation 13 of the Immigration (European Economic Area) Regulations 2016 (SI 2016/1052) (the “Immigration Regulations”)).

On 18 November 2020, still during the transition period, the Appellant obtained PSS. PSS is a domestic law right of residence and is not granted on the basis of the CRD – see CG.

The transition period ended on 31 December 2020. On that date, EU law ceased to have effect in the UK, subject to certain savings provisions (contained in the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations 2020 (SI 2020/1309)) and save to the extent that provisions of EU law were given effect by the Withdrawal Agreement.

As at that date, the Appellant was still within the first three months of her arrival, and still had what would have been an EU law right of residence under Article 6 of the CRD, preserved in Article 13(1) of the Withdrawal Agreement. In addition, as a person with PSS, she had leave to remain as a matter of domestic law for 5 years.

The Appellant has remained economically inactive throughout her residence in the UK. That means that, at the end of the initial three month period (expiring on 4 February 2021) the Appellant no longer had what would, under EU law, have been an enforceable EU law right to reside in the UK. Her initial right to reside under Article 6 CRD had expired, and she was not complying with the conditions of Article 7 CRD.

In summary, it is the Appellant’s case that Article 18 of the Withdrawal Agreement, which came into effect on 1 January 2021, conferred on the Appellant a right to reside in the UK, recognised by Article 13 of the Withdrawal Agreement and protected by Article 23 of the Withdrawal Agreement. When her claim for housing assistance was refused, she was discriminated against by being treated less favourably than a comparable UK national. Ground 1 of her appeal challenges Jay J’s conclusion that she has no right of residence protected by Article 23 of the Withdrawal Agreement. The remainder of the appeal depends on the Appellant succeeding on Ground 1. If she does, by Ground 2 she says that the discrimination was on grounds of nationality, because it was targeted at EU nationals, and was direct; as such, it was for that reason, and without more, unlawful. Alternatively, if the discrimination was indirect, by Ground 3 she argues that the discrimination is incapable of objective justification. Different aspects of the Appellant’s case are supported in different ways by T3M, Shelter and the AIRE Centre.

It is the Secretary of State’s case, in alignment with the Respondent and the IMA (albeit that IMA’s case was limited to Ground 1), that Jay J was right to conclude that the Appellant had no right of residence under the Withdrawal Agreement. They submit that the Appellant was ineligible for housing assistance before Article 18 of the Withdrawal Agreement came into effect and remained so after it came into effect, both during the remainder of her three month residence under Article 6 CRD and after that, when she was residing in the UK by reason of her PSS. They say that if the Appellant is right, the effect of the Withdrawal Agreement is to widen the class of people entitled to rely on the prohibition against discrimination to include all those with PSS, which would mark a major shift away from the EU law status quo ante, because the Appellant would not have been entitled to housing assistance during the transition period or at any earlier time when the UK was a member of the EU. There is no discrimination, either direct or indirect; but any indirect discrimination would anyway be objectively justified. All three grounds are therefore resisted.

Ancillary issues arise as to whether (i) the Appellant’s PSS is properly described as a domestic law right or an EU law right (this is the subject of the Secretary of State’s Respondent’s Notice, and relates to Ground 1); (ii) the scope and content of the EU law rights under Article 21 TFEU which are preserved by the Withdrawal Agreement (this is the subject of Shelter’s intervention, and it is to an extent supported by the IMA; this too relates to Ground 1); and (iii) whether this Court should refer a question to the CJEU (this is the main focus of submissions from T3M, and this too relates to Ground 1 in the main).

I am indebted to all Counsel and their supporting teams for the assistance they have given the Court. Between the parties and interveners, a large number of arguments have been put before the Court, some of which conflicted with arguments advanced by others “on the same side” and all of which were rebutted by others in Court in one or various ways. It is not necessary for me to deal with each and every one of the arguments advanced. In my view, it is better to concentrate on the handful of key points which are in the end determinative of the appeal.