Court of Appeal grants permission to hear and join two post-Brexit homeless eligibility appeals for applicants with Pre-Settled Status

The appeal comes after two cases of post-Brexit homelessness ended in Barnet & Haringey councils refusing to provide housing assistance.

A v London Borough of Haringey CA-2022-001016

A lone parent fleeing domestic abuse in Haringey, North London, has approached her local authority as a homeless person from a women’s refuge. She has been granted anonymity within the proceedings to protect her safety after her local authority refused her homeless assistance due to her pre-settled status. She has not been engaged in work or self-employment and sought a review of that decision which upheld that she was not eligible for assistance.

The issue of broader public importance is the relevance of the Charter of Fundamental Rights of the European Union to the eligibility for social welfare assistance of EU citizens who are lawfully resident in the UK based on Pre-Settled Status. National authorities empowered to grant social assistance are required to check that a refusal to grant such assistance based on legislation does not expose that individual and the children for whom she is responsible to an actual and current risk of violation of their fundamental rights and, further, where the citizen does not have any resources to provide for her own needs and those of her children and is in isolation. Those authorities must ensure that, in the event of a refusal to grant social assistance, that citizen may live with her children in dignified conditions.

The county court decided that the Charter applied to homelessness assistance and found that the local authority had used this correctly by having it “in mind”. The ground of appeal that was raised within the Court of Appeal is that having the Charter in mind is insufficient; the local authority must comply with the duties set out in the Charter.

A v London Borough of Barnet CA-2022-000752

In The London Boroughs of Barnet, another lone parent was refused assistance by the local authority because she held pre-settled status and was not economically active. She had a young baby and was still receiving state maternity payments when she was first approached; another applicant’s child was in education. By the time Barnet had decided, several months later, the maternity payments had ceased, and the applicant had not returned to work.

In an appeal to the county court, unlike the Haringey case, the county court found that the Charter of fundamental human rights had no impact on the decision to refuse homeless assistance, and Barnet was right not to consider the same.

A person on state maternity leave is considered a “worker” for the period of maternity and is expected to return to work in a reasonable period. A sole carer for a child in education, who has also been a worker within that time, should be eligible for assistance if the child is still in education. In this case, as the applicant had not returned to work after 12 months, the county court found that her worker status was erased from history when she did not return to work, and her child’s right to education was irrelevant.

The Appellant in Haringey is represented by Sioned Wyn Roberts, Senior Associate in Hodge Jones & Allen’s Housing team, whilst the Appellant in Barnet is represented by Suzanne Bird, Associate in the Housing team. The cases will be heard together by the Court.

In the decision to grant the permission, Rt. Hon. Lord Justice Arnold stated: “I consider that both grounds of appeal have real prospects of success and raise important points of principle. As highlighted by the application to intervene by the Independent Monitoring Authority, the case was decided below without reference to the Withdrawal Agreement. There are significant issues regarding the impact of the Withdrawal Agreement and associated domestic legislation upon the rights of persons in the position of the Appellant. In addition, there is a question as to the legal relevance of the EU Charter after Brexit, as to which differing conclusions have been reached in this case and the London Borough of Haringey. These issues merit consideration by the Court of Appeal so that authoritative guidance can be given to local authorities and the County Court.”

Sioned Wyn Roberts, Senior Associate at Hodge Jones & Allen, said: “We welcome the judge’s statement regarding our appeal and his acknowledgement of the need to reference the withdrawal agreement. We further welcome a degree of authoritative guidance to the county court. The inconsistency of judiciary decisions within the Boroughs of Haringey and Barnet has created uncertainty for our most vulnerable. We need to gain clarity on this issue post-Brexit and ensure that the appropriate measures are being taken to protect all members of society.”

The Independent Monitoring Authority for Citizens Rights Agreements “IMA” have been granted permission to intervene in the appeals. The IMA is the statutory body that monitors the implementation and application of the Withdrawal Agreement.