Rebecca Walker sets out some key points on how Brexit affects who can satisfy the right to reside requirement for benefit entitlement.
At the time of writing (late March 2019), the UK was due to leave the European Union (EU), but the date and terms of the departure were still not known. If Brexit goes ahead, the consequences for social security benefit entitlements are likely to be extensive in the longer term, but how much will change more immediately is still unclear. One variable that will be particularly decisive is whether the UK leaves the EU without an agreement with the EU (a ‘no-deal Brexit’) or under the terms of an agreement with the EU. The benefit entitlements most directly affected include those dependent on the operation of the EU co-ordination rules1 EC Reg 883/04 and EC Reg 987/09. For example, entitlements to UK disability and carer’s benefits when the claimant resides in another EEA country or entitlement to UK contributory benefits based on contributions paid in other EEA states.
and those dependenton using EU law free movement residence rights to satisfy the right to reside requirement. This article just considers the latter.
The requirement to have a right to reside
The benefits that require the claimant (or, for couples claiming universal credit (UC), both claimants) to have a right to reside are UC, pension credit, housing benefit (HB), income support, income-related employment and support allowance, income-based jobseeker's allowance, child benefit and child tax credit. Any
right to reside satisfies this requirement, other than
one that is specifically excluded in the regulations for the particular benefit. For example, the Universal Credit Regulations2 Reg 9(2)-(3) Universal Credit Regulations 2013, No.376
require that the claimant (or both claimants, if it is a joint claim) has a right to reside other than
as a European Economic Area (EEA) jobseeker or a family member of an EEA jobseeker, an initial right to reside, or the right to reside as the primary carer of a dependent British citizen who would otherwise have to leave the whole of Europe (often referred to as ‘Zambrano carers’3 Following the case of Zambrano v ONEm, C-34/09 .
Brexit with an agreement
If the UK leaves under the terms of an agreement, this will entail a transition period in which EU free movement rights, and the benefit entitlements of those exercising these rights, will remain broadly the same as before the UK left. The transition period agreed in the Draft Withdrawal Agreement was to continue until 31 December 2020.4 Art 126 Draft Agreement on the Withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, 14 November 2018
A different or amended agreement could, of course, include a different length of transition period and, indeed, different terms.
In anticipation that the Draft Withdrawal Agreement would be agreed, the government introduced the EU Settlement Scheme as a way of implementing the rights set out in the withdrawal agreement of EU citizens and their family members to reside in the UK. This scheme is already operating and will continue regardless of whether, when and how the UK leaves the EU, and so it is helpful to consider the scheme and its relevance for benefit entitlement before considering what happens if there is a no-deal Brexit.
The EU Settlement Scheme
Following two limited pilot phases in autumn 2018, the EU Settlement Scheme opened its ‘voluntary test phase’ from 21 January 2019, and from 7am on 30 March the scheme opened fully.5 However, ‘Zambrano carers' can only apply from 1 May 2019.
The scheme forms part of the Immigration Rules6 Immigration Rules Appendix EU
and advice on applications is an immigration matter and should only be provided by those registered with the Office of the Immigration Services Commissioner (OISC) to give such advice.7 Not-for-profit organisations can apply to register to give advice solely on the EU Settlement Scheme,
In very broad terms, the scheme provides for EEA and Swiss nationals, their family members and those with derivative residence rights to be granted ‘settled status’ (indefinite leave) if they can show they have resided in the UK for five years, or ‘pre-settled status’ (limited leave granted for five years) if they can show they have resided in the UK for less than five years.
Note Irish citizens (including dual citizens) and those with indefinite leave to remain are not required to obtain leave under the EU Settlement Scheme, but family members of Irish citizens are. Those granted pre-settled status need to apply for settled status before the former expires. Much of the detail of the scheme reflects, and in some cases cross-refers to, provisions of the EEA Regulations8 The Immigration (European Economic Area) Regulations 2016, No.1052
– eg, on absences abroad that can be ignored and therefore not affect the continuous qualifying period of residence. However, significantly, ‘residence’ does not have to have been while having a right to reside: it simply means actual residence.
The date by which the person needs to have begun residing in the UK, at the time of writing, is by 31 December 2020 if the UK leaves the EU under the terms of an agreement with the EU. However if there is a ‘no-deal Brexit’, residence in the UK must have begun by the day before the UK leaves (and the rights of those arriving after this date is addressed below). The deadline for applying, at the time of writing, is 30 June 2021 if the UK leaves the EU under the terms of an agreement with the EU, and 31 December 2020 if there is a no-deal Brexit. Clearly, any of these dates can change. Given that settled status and pre-settled status are forms of immigration leave, being granted either means the person has a right to reside in the UK. This righttoreside satisfies the right to reside requirement for each of the ben- efits that have this requirement, since it is not one of the residence rights that are listed as excluded (as explained at the start of this article). This means that claimants who have been ex- cluded from benefits by their lack of qualifying right to reside (including, for example, EEA jobseekers seeking to claim UC or HB) cease to be excluded if they obtain settled or pre-settled status. However at time of writing, the DWP was often not understanding or accepting this. DWP decision making on claims for benefits that require a right to reside made by people with settled and pre-settled status has so far been variable, but refusals are common. However where challenged effectively, these refusals have generally been overturned without needing to appeal. Advisers should be ready to challenge benefit refusals based on the decision maker not accepting that settled or pre-settled status means the claimant satisfies the right to reside requirement, and may wish to use the judicial review pre-action template letters
available on CPAG’s website and/or cut and paste the paragraphs on entitlement from those templates into a mandatory reconsideration request, amending as required.9
Although at the time of writing, the law clearly provides that settled or pre-settled status satisfies the right to reside test for all benefits that require it, that law can be changed. Concerns about the likelihood of this are fuelled by repeated government statements that its intention is for EEA citizens and their family members granted settled or pre-settled status to have the same benefit entitlements as they had before the scheme was introduced. Since obtaining settled or pre-settled status can mean the person has greater rights than s/he had previously, the EU Settlement Scheme currently provides greater benefit entitlements.
Therefore, where possible, advisers should seek to also identify and demonstrate a right to reside under the EEA Regulations. It is also important to remember that, like all grants of leave, entitlements based on settled or pre-settled status leave only begin from the date that leave is granted and are not retrospective.
If there is a ‘no-deal Brexit’, then entitlements at some future point are likely to be affected by whether the claimant became resident in the UK before or after the date the UK left the EU. However entitlements will not change immediately. To help prevent an immediate legal cliff edge the moment the UK leaves the EU, legislation provides for domestic UK legislation de- rived from EU legislation (eg, the EEA Regulations) to continue in force, and most EU law that is not already reproduced in domestic UK law to be incorporated into UK law on the day the UK leaves the EU. ss2 and 3 European Union (Withdrawal) Act 2018 This legislation could then be amended.
The UK government has made clear it intends to repeal ‘as soon as possible’
the free movement legislation that provides for EEA nationals’ rights to enter and reside in the UK, and is in the process of passing the necessary legislation to achieve this.10 Government announcement 28 January 2019, www.gov.uk/government/news/government-outlines-no-deal-arrangements-for-... s1 and Sch1 Immigration and Social Security Co-ordination (EU Withdrawal) Bill 2017-19
However, this requires an alternative immigration system to be in place. The longer term intention is that there will be a new immigration system in force from 2021 onwards, and the interim measures expected to operate until then are summarised below.
As noted above, in a no-deal Brexit only those resident in the UK before the day the UK leaves the EU will be entitled to apply under the EU Settlement Scheme and they will have until 31 December 2020 to do so. This raises questions about two groups: firstly, what are the rights of those whose residence began before Brexit day until they obtain settled or pre-settled status and, secondly, what are the rights of those who arrive after the UK has left the EU?
In terms of the first group, if the current legislation providing residence rights is to be revoked before 31 December 2020, alternative legislation will be needed to provide residence rights (and associated benefit entitlements) for this group until they obtain leave under the EU Settlement Scheme. At the time of writing, provisions for these rights was being left to future, secondary, legislation11 s4 Immigration and Social Security Co-ordination (EU Withdrawal) Bill 2017-19
and concerns had been raised about passing legislation to remove rights before replacement rights have been legislated for.12 Joint Committee on Human Rights, Legislative Scrutiny: Immigration and Social Security Co-ordination (EU Withdrawal) Bill, 26 March 2019
In terms of the second group, those arriving after
‘Brexit day’, regulations provide that once the current legislation providing rights of entry and residence is revoked, on arrival EEA and Swiss nationals will be automatically granted three months’ leave to enter the UK.13 Arts 3-6 Immigration (European Economic Area Nationals) (EU Exit) Order 2019, No.686 (coming into force when the EEA Regulations are revoked)
To remain lawfully in the UK, the EEA or Swiss national wouldneed, before the endofthe three months, to apply for European Temporary Leave to Remain which would be valid for three years. Non-EEA national family members will have to obtain a family permit in advance to accompany, or join, the EEA or Swiss citizen in the UK.14 Government announcement 28 January 2019,
‘… on the same basis as for EEA and Swiss nationals now. They will continue to need to meet any eligibility criteria, for example
demonstrating that they are exercising a EU qualifying right to reside, such as a worker or self-employed person. As now, those not exercising a qualifying right will not be able to access certain publicly funded services and benefits.’ Joint written statement from the Department for Exiting the EU and the DWP, 26 March 2019
This statement, as with similar statements made about the rights of those granted leave under the EU Settlement Scheme, fails to appreciate that granting someone immigration leave means they have a right to reside that satisfies this requirement for benefits. Therefore, should a ‘no-deal Brexit’ occur, and unless there is any change to the benefit regulations, advisers will need to be prepared to challenge benefits refused on the basis that a person who has leave to enter or remain does not have a right to reside.
Please be aware that welfare rights law and guidance change frequently. Older Bulletin articles may be out of date. Use keywords or the search function to find more recent material on this topic.