22 May 2024

GOOD NEWS FOR EU CITIZENS FACING DESTITUTION BECAUSE THEY CAN’T WORK

At Legal Services Agency (LSA), we work on numerous projects aimed at reducing social inequality and disadvantage, many of which involve collaborating with other third sector organisations.

Fair Way Scotland is a partnership of third sector organisations working to combat destitution and homelessness among people denied access to support on account of their immigration status.

LSA provides second-tier legal advice to Fair Way Scotland’s frontline support workers at the Simon Community, the Scottish Refugee Council, Turning Point and the Refugee Survival Trust, enabling them to support some of the most vulnerable people in Scotland to realise their basic human rights to shelter, food and clothing.

EU citizens

Prior to Brexit, EU citizens could move freely to the UK. However, those free movement rights ended on 31 December 2020 – EU citizens coming to the UK for the first time on or after 1 January 2021 need to apply to the Home Office for a visa.

EU citizens who were already in the UK prior to 1 January 2021 could apply to the Home Office’s EU Settlement Scheme.

People who had been here five years or more were granted “settled status”, a type of “indefinite leave to remain”. This immigration status provides them with the same rights to social sector housing and Universal Credit (UC) as British citizens.

Those who had been in the UK for less than five years were granted “pre-settled status”, a type of “limited leave to remain”. Until a recent test case, this immigration status only enabled them to access social sector housing and UC if they would have passed the pre-Brexit “right to reside test” – (broadly) because they were working, or the dependent family member of an EU worker, or if they were the primary carer of an EU worker’s child in education in the UK.

That changed when the England and Wales Court of Appeal held in the case of Secretary of State for Work and Pensions v AT [2023] that EU citizens with pre-settled status can still rely on the EU Charter of Fundamental Rights, in particular the right to live in dignified conditions, as interpreted in the European Court of Justice case C-709/20.

When the Department for Work and Pensions is determining a UC claim from an EU citizen with pre-settled status, the Court stipulated it must consider whether refusing it risks violating this right. If it does, the Court found UC must be awarded.

The Secretary of State for Work and Pensions attempted to appeal this decision to the Supreme Court, but permission was refused, as it was not accepted the Court of Appeal had made an arguable error of law.

Facts that need to be established

To rely on the judgment, an EU national with pre-settled status needs to establish:

1. They are unable to work, either because of health problems / disabilities, or childcare / other care commitments; and

2. They don’t have sufficient and regular support from a third party, such as friends, family or a charity; and

3. There is no other adequate support definitely available from a Local Authority (as opposed to support that might or ought to be available, for example under the Children (Scotland) Act 1995, but isn’t guaranteed, because of severe resource constraints); and

4. There is an actual and current risk that they might not have adequate resources to meet their most basic needs imminently, even if they have sufficient resources to meet them immediately; or

5. They are currently unable to meet their basic needs for housing, heating, food, clothing and hygiene.

Appeal cases

Numerous First-tier Tribunal appeals were stayed behind the final judgment in SSWP v AT. As the Court of Appeal’s decision is final, they should now be heard and adjudicated upon without further delay. Any of those appellants that have their appeals dismissed can consider attempting to appeal to the Upper Tribunal, if the above facts have been established, as a failure to adhere to the AT judgment is an arguable error of law. They have one month from the date of the First-tier Tribunal’s decision to take the first step (requesting a statement of reasons), so they should seek advice and assistance quickly. We would be happy to undertake an initial assessment of prospects, if any frontline support worker or adviser wishes to contact our Housing and General Court Department via the Fair Way Scotland second-tier advice line. If there are good prospects, we can potentially take a referral. And thereafter offer advice and representation, depending on qualification for Legal Aid.

If an EU national with pre-settled status has their application for UC refused and they believe they can establish the above facts, they have one month from the date of the refusal decision to submit a mandatory reconsideration to the DWP. Thereafter, if their mandatory reconsideration is refused, they will have one month to appeal to the First-tier Tribunal. Their local Citizens’ Advice Bureau is generally a good first port of call at that stage. Some can represent people at the First-tier Tribunal themselves. Others should be able to refer them in to a suitable service.

Housing

While SSWP v AT is a benefits case, it should at least be persuasive in a housing case where a local authority has decided it doesn’t owe an EU citizen homelessness duties, because they have pre-settled status but no right to reside. We would be happy to test this point if a suitable referral is made in to our Housing and General Court Department via Fair Way Scotland.

Gwyneth James
Solicitor
LSA