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

THE JUDGMENT BELOW

In a laudably concise judgment, Jay J dismissed the appeal, holding that it was necessary to approach the Appellant’s case in two stages, first by interpreting the Withdrawal Agreement to establish the preconditions for the acquisition of the new immigration status, and secondly by asking whether PSS in the form in which it was granted to the Appellant conferred on her the unconditional rights she claimed which included a right to housing assistance (paras 69 and 70). It was common ground that the Appellant fulfilled the conditions of Article 6 of the CRD at the time that she applied under the EUSS; she therefore had rights which fell within Article 13(1) of the Withdrawal Agreement at that stage (para 71). However, the rights she thereby obtained were conditional and not absolute, and the grant of PSS was simply a gateway or passport to the potential acquisition of a particular right at the relevant time (para 72). In terms of its content, PSS was “no more than a laissez-passer” to the claiming or invoking of rights in the future (para 74). Article 18(1) did not bring about a sea-change but simply sought to maintain the status quo ante taking into account the interests of immigration control, simplicity, good administration and the protection of the accrued rights of EU or EEA nationals; it did not put EU nationals in a better position than they were in previously (para 75). The purpose of Article 23(1) of the Withdrawal Agreement was to achieve consistency between the Withdrawal Agreement and Article 24 of the CRD (para 76). It was not enough simply to possess the new status; the specific right under the CRD which the person was enjoying had to be identified (para 76). The preferred analysis was that as a matter of language, there was a clear and direct pathway from Article 13(4) to Article 13(1) and Article 18, each provision referring to conditions (para 81). Provided that it continued to be seen as a “one-off” passageway, Article 18(1) was silent as to the mechanism by which a host State might choose to confer residence status; the grant of immigration leave of 5 years was within the permissible ambit of Article 18(1) (para 88). But the fall-back analysis was that if PSS was more generous than Article 18(1) of the Withdrawal Agreement, then that more generous right was enjoyed by virtue of domestic law permitted by Article 37 of the CRD or Article 38 of the Withdrawal Agreement (para 89). The Secretary of State must be treated as having applied Article 13(4) to the Appellant’s situation, by not requiring proof of a relevant EU law right at the point that the Appellant applied for PSS in November 2020 (para 92). She had no free-standing right to residence under Article 21(1) TFEU noting that at the time of her claim for housing assistance, the Appellant did not fulfil the conditions in Article 7 of the CRD (paras 94-95). For those reasons, she lost on the main issue because she did not have rights under the Withdrawal Agreement which were protected by Article 23 of that Agreement (para 96). That determined the case against her but if, contrary to that conclusion, there was discrimination, it was indirect because not all UK nationals qualify for housing assistance (because not all are habitually resident) and not all those with PSS (assuming against himself on the main issue) would not qualify for housing assistance; the overall impact of these provisions is only to make it substantially more difficult for PSS holders to succeed, which is a classic case of indirect discrimination (para 105). There was insufficient evidence before the Court to determine whether that indirect discrimination was objectively justified (para 107).

The issues and arguments have developed since Jay J heard the case. In the interests of brevity, I will address the arguments as they are now put and I will do so in my own words and in my own sequence. I have already indicated that I am in agreement with the outcome determined by Jay J. I also agree, in the main, with his reasons.