Loss of Free Movement Rights

Before Brexit, EU nationals could move freely to the UK to work, without any need to apply to the Home Office for a visa. (British nationals could do the same, to other EU member states).

If their earnings were low, provided their work was deemed “genuine and effective” rather than “marginal or ancillary”[1], EU workers[2] could apply for UK welfare benefits to top them up.

Being the dependent family member[3] of an EU worker could also lead to welfare benefit entitlement, including where the family member was not themselves an EU national.

The Immigration (EEA) Regulations 2016[4] outlined the “right to reside” rules for EU nationals and their dependent family members, and a substantial body of European Court of Justice (ECJ) case law interpreted them.

Brexit meant that freedom of movement rights ended from 1 January 2021, and that those regulations were revoked. The UK stopped falling under the jurisdiction of the ECJ.

EU nationals coming to the UK for the first time on or after that date need to apply to the Home Office for a visa. This is likely to be subject to a “no recourse to public funds” condition, meaning they can’t access means-tested welfare benefits.

This does not, however, mean that no EU nationals can do so.

THE HOME OFFICE EU SETTLEMENT SCHEME[5]

If an EU national had been residing in the UK for five years before 1 January 2021[6], they had until 30 June 2021 to apply to the EU Settlement Scheme for “settled status”, which provides the same access to welfare benefits as a British national has.

EU nationals who were residing in the UK before 1 January 2021 for less than five years had until 30 June 2021 to apply to the EU Settlement Scheme for “pre-settled status”.

Having pre-settled status does not of itself provide access to welfare benefits.

However, crucially, Regulation 83 of and Schedule 4 to the Immigration and Social Security Coordination (EU Withdrawal) Act 2020 (Consequential Saving, Transitional and Transitory Provisions) (EU Exit) Regulations 2020 effectively reactivate the above right to reside regulations for people with it; they also make the ECJ case law that interpreted those regulations citable in any welfare benefit appeals by people with pre-settled status.

RIGHT TO RESIDE CIRCUMSTANCES

People with pre-settled status can establish they have a right to reside in the UK, and that they are therefore entitled to welfare benefits, if they are:

• currently undertaking “genuine and effective” work;
• temporarily unable to work due to illness, having previously undertaken genuine and effective work;
• looking for work, including engaging with the DWP Job Centre, having become involuntarily unemployed;
• unable to work due to pregnancy or recent childbirth; or
• acting as the primary carer of a child of an EU worker who is in primary, secondary or further education, up until the age of 18[7]

CONVERSION FROM PRE-SETTLED TO SETTLED STATUS

People with pre-settled status can apply to change this to settled status after they have been living in the UK continuously for five years. They do not need to wait until they have had pre-settled status for five years.

FAMILY MEMBERS

Dependent family members of an EU national who had been residing in the UK for at least five years before 1 January 2021, who themselves had been residing in the UK for at least five years at that point, could apply for EUSS settled status up until 30 June 2021. They did not need to be an EU national themselves.

If the dependent family member had been residing in the UK for less than five years before 1 January 2021, they could apply for pre-settled status on that basis, up until 30 June 2021.

Indeed, dependent family members of EU nationals who were living in the UK before 1 January 2021 may still be able to join the EU national in the UK, enter with an EUSS family permit, then apply to the EUSS themselves, for pre-settled status. (Immigration advice should be sought about this situation).

Dependent family members with EUSS pre-settled status have a right to reside for welfare benefits, i.e. they can claim them in their own right, provided the EU national they are dependent upon has a right to reside, and they are still dependent upon them.

Alternatively, they can establish they have a right to reside under their own steam, if they are working, or in any other of the above right to reside circumstances.

WELFARE BENEFIT APPEALS

Because EUSS pre-settled status is a type of limited leave to remain, misunderstandings often arise. Instances of “gate keeping” have come to light, where people with pre-settled status are being told by the DWP and local authorities their immigration status means they can’t claim welfare benefits. They can, and they are entitled to a written decision, with appeal rights.

Legal Services Agency now has an in-house welfare rights specialist. We would be happy to take referrals from other organisations, in respect of people with pre-settled status with an arguable right to reside who would like help appealing a benefit refusal.

We can help with written submissions at a First-tier Tribunal, and provide representation at the Upper Tribunal. In addition, we can help with judicial review, where there has been a refusal to take a claim.

There seems to be an unmet need for case law clarifying the post-Brexit welfare rights of EU nationals and their dependent family members, and we are keen to collaborate with other organisations working with them to ensure their rights are realised.

Gwyneth King is a solicitor in our Housing and General Court Department

[1] These concepts were introduced via interpretative case law from the European Court of Justice, as there is no set threshold regarding what number of hours worked or level of income earned counts in the right to reside regulations

[2] For simplicity, in this article, I use the term “worker” to include both employees and self-employed people

[3] Spouses / civil partners and direct descendants / ascendents. (Sons and daughters are automatically accepted as dependent until they are aged 21, otherwise dependence is not defined, and therefore arguable)

[4] Before them, their predecessor regulations from 2006 did so

[5] This is set out in Appendices “EU” and “EU (Family Permit)” to the Immigration Rules

[6] Or if they had got a permanent residence right early, due to ill health / disability or retirement

[7] Or longer if their presence and care are needed by the young adult to enable them to pursue and complete their education