Guidance

A3/2026: Introduction of the Border Security, Asylum and Immigration Act 2025 and the AT Court of Appeal judgment

Updated 2 April 2026

© Crown copyright 2026

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This publication is available at https://www.gov.uk/government/publications/housing-benefit-adjudication-circulars-2026/a32026-introduction-of-the-border-security-asylum-and-immigration-act-2025-and-the-at-court-of-appeal-judgment

Who should read

All Housing Benefit colleagues and wider if appropriate

Action

For information

Subject

Introduction of the Border Security, Asylum and Immigration Act 2025 and the AT Court of Appeal judgment

Guidance Manual 

The information in this circular does not affect the content of the Housing Benefit Guidance Manual.  

Queries 

You can get extra copies of this circular/copies of previous circulars 

Crown Copyright 2026

Recipients may freely reproduce this circular.

Introduction 

1. This circular updates and replaces circular HB A10/2024 Revised (The AT Court of Appeal judgment and the EU Charter of Fundamental Rights assessment). There has been substantial change since the introduction of the Border Security, Asylum and Immigration (BSAI) Act 2025, which has changed the implementation of the AT Court of Appeal judgment.  

2. This circular changes the position for Decision Makers (DMs), following the introduction of the BSAI Act 2025 and the judgment of the Court of Appeal (CoA) handed down on the 8 November 2023 in the case of SSWP v AT [2023] EWCA Civ 1307 [footnote 1] (AT). The Secretary of State applied for permission to appeal to the Supreme Court, which was refused on 7 February 2024. Therefore, the CoA judgment was final and implemented as advised in circular HB A10/2024.  

3. This judgment relates to European Union (EU) national claimants with pre-settled status (PSS) under the EU Settlement Scheme (EUSS) who have no other legal right to reside for the purpose of the Habitual Residence Test (HRT) when claiming for social assistance such as Universal Credit (UC) or Housing Benefit (HB).  

4. This affected new claims, existing cases at the mandatory reconsideration stage and HRT review cases (both single and joint claimants) which relate to entitlement of EU nationals with PSS from 12 December 2022 onwards. 

5. However, the BSAI Act 2025 should now be applied to any decisions made on or after 2 December 2025. The BSAI Act requires that all EU, other European Economic Area and Swiss nationals who resided in the United Kingdom (UK) prior to the end of the transition period, and their family members, with leave to enter or remain in the UK granted under the EUSS will be treated as a beneficiary under the Withdrawal Agreement or the relevant separation agreement. Therefore, DMs no longer need to undertake an Article 10 assessment. See 15-25: Border Security, Asylum and Immigration Act 2025 for further information.  

6. As it now stands, this judgment does not affect: 

  • claims from non-EU national claimants, who are not family members of EU nationals treated as in scope of the Withdrawal Agreement. This includes persons from Norway, Iceland, Liechtenstein and Switzerland 

  • claims from those with Settled Status, a Certificate of Application, or any other form of leave 

  • decisions considering entitlement before 12 December 2022 

  • family members of British citizens (Surinder Singh cases) and Zambrano carers as they are not in scope of the Withdrawal Agreement 

7. Those claims not affected by the judgement should be decided in accordance with existing processes.

Background to the AT Court of Appeal judgment

8. The case of AT concerns an EU national with PSS who claimed UC in 2021. As she had no qualifying right to reside for the purposes of UC, her claim was disallowed as she was not considered to be in Great Britain (GB). AT appealed to the First-Tier Tribunal (FTT) who allowed her appeal on the grounds that without UC, AT and her daughter would not be able to live “in dignified conditions” in accordance with the judgment of CG v the Department for Communities in Northern Ireland C-709/20 [footnote 2] (CG).

9. In law, the FTT found that the EU Charter of Fundamental Rights (the Charter) applied through the Withdrawal Agreement and that the case of CG meant AT’s individual circumstances should be assessed. The FTT found on AT’s particular facts that it was a breach of her Charter rights not to grant her UC and accordingly, regulation 9(1), (2) and 3(c)(i) of the Universal Credit Regulations 2013 (the provisions that require the claimant to be in GB) were disapplied on Charter grounds, meaning that the Secretary of State was wrong to disallow the UC claim. In the Upper Tribunal (UT) decision [footnote 3] dated 12 December 2022, the UT dismissed the Secretary of State’s appeal but gave permission to appeal to the CoA. On 8 November 2023, the CoA dismissed the Secretary of State’s appeal against the decision of the UT, finding that the Charter rights continued to apply to EU citizens in scope of the Withdrawal Agreement. The CoA held that, where the case of AT applies, the Secretary of State was required to consider if a refusal of social assistance such as UC or HB would put a person at risk of destitution. As mentioned in paragraph 2, on the 7 February 2024 the Supreme Court refused the Secretary of State’s permission to appeal.

Local authority Decision Maker action for HB claims

10. The UT findings in AT are declaratory in law, meaning that they have been applied to new cases from the date of the decision (12 December 2022 onwards) and this date is the relevant determination date.

11. Any cases stayed under s.25(2) of the Social Security Act 1998 are now processed and an appropriate decision made.

12. Each claim should first and foremost be considered under the usual HRT rules. This means that all new claims for HB, for which a HRT is needed, should first proceed with an HRT assessment in the usual way. In either case, if the claimant passes the HRT, the HB claim/existing award continues on this basis.

13. Note: HRT is applicable where claimant(s) have only claimed HB. In any case where claimant(s) are receiving income-based Jobseeker’s Allowance, income related Employment Support Allowance, Income Support, UC or Pension Credit, an additional HRT assessment will not be necessary as it can be passported to HB.

14. For claimants who do not meet the HRT, DMs must consider whether they come within the scope of the AT judgment. For those not in scope of the AT judgment, (see paragraph 7) their HB claim should be refused for not passing the HRT.

15. If the claimant is unable to demonstrate any qualifying right to reside, the DM must consider whether the claimant is able to work and, if not, whether the claimant meets the AT threshold identified in the UT decision and set out below.

16. For any cases, (at any stage) where the DM is unsure of how to proceed, the case (with all evidence) should be escalated to internationalaccessto.benefitpolicyteam@dwp.gov.uk for further consideration.

The EU Charter of Fundamental Rights DM assessment 

Working Age HB claims 

17. In light of the AT judgment, where a claimant is able to work, refusal of HB will not violate their Charter rights as they themselves are able to avoid destitution by working. When determining a claimant’s inability to work, consideration should reasonable be given to factors preventing the claimant from working. Examples of these could be physical or mental health conditions, homelessness, having childcare or other caring responsibilities, being a victim of domestic violence, or having other complex needs which mean the claimant is unable to work at that moment. 

18. For claimants assessed as unable to work, a DM must thoroughly assess and determine whether the claimant meets the AT threshold. 

19. The AT threshold test for this memo means the inability to ‘meet their most basic needs’ at present or in the near future and should be considered in all cases. The threshold is high, and the claimant’s position must amount to extreme material poverty incompatible with human dignity. 

20. Areas to be considered for basic needs are: 

  • food 

  • personal hygiene 

  • clothing 

  • housing 

  • adequate heating 

21. When looking at a claimant’s inability to meet their most basic needs, DMs should consider what alternative financial resources claimants are in receipt of and whether those are sufficient to meet their most basic needs at present or in the near future. 

22. See Example 1 (Working Age claim to HB awarded): 

Example 1

Rosana is a Spanish national who separated from her Canadian spouse due to domestic abuse. Rosana came to the UK on 25 July 2019 and was granted PSS on 29 October 2020. Since arriving in the UK, she worked between November 2020 to March 2021. The end of her employment was health related (seizures) which was aggravated by the abuse faced from her ex-spouse. The relationship also broke down resulting in separation in March 2021 and her ex-spouse kicking her out of the family home and being placed in a refuge. Consequently, Rosana applied for HB and was considered by the DM to have no qualifying right to reside. 

Rosana is then contacted by the DM where she was able to evidence that she is unable to work due to ongoing seizures and explained that she had no savings, or any support in the UK. After careful consideration that DM accepts that Rosana is unable to work and meet her basic needs. The DM assesses Rosana as destitute and awards HB.

State Pension age HB claims

23. An assessment of the claimant’s ability to work is not required for State Pension age claimants. To determine whether a claimant is within the scope of the AT judgment, DMs should refer to paragraphs 19 to 22.

24. Note: This section also applies to couple claims where one person is not over State Pension age and the other person is over State Pension age.

25. See Example 2 (State Pension age claim to HB awarded):

Example 2    

Anna is a pension aged Polish national who applied for Pension Credit and HB on the 14 January 2023. Whilst the Decision Maker conducted the HRT the following information was gathered: she arrived in the UK in September 2018. She studied at university from 2018 until graduating on 3 July 2021. She was granted PSS in 2020. She has declared health conditions. Anna has no dependents or family to derive a right to reside from in the UK.  

Prior to her application to Pension Credit she had been sectioned under the Mental Health Act. She is still recovering from psychosis and continues receiving treatment from her Mental Health team. In her claim disclosure, Anna declared to have housing costs. Anna contacted a Pension Credit DM by telephone to state that she will be destitute if the decision is negative. The Pension Credit DM contacts Anna to assess whether her basic needs can be met. During the call, Anna explains that she is a widower with only £200 in her account and does not have relationship with her children.

The Pension Credit DM determines that Anna is at risk of not meeting her basic needs in the immediate future and makes a decision to allow Anna’s Pension Credit claim. As Anna is receiving Pension Credit, the HB DM also allows her claim to HB as the Pension Credit DM’s decision is passported.

  1. Secretary of State for Work and Pensions v AT [2023] EWCA Civ 1307 (08 November 2023) ↩

  2. EUR-Lex - 62020CJ0709 - EN - EUR-Lex ↩

  3. SSWP v AT (Aire Centre and IMA Intervening) 2022, UKUT 330 ↩

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