Rebecca Walker looks at what we know so far about rights to reside and benefits for European Economic Area (EEA) nationals after European free movement rights are ended.
The UK government will end European free movement rights within UK law when the post-Brexit transition period ends at 11pm on 31 December 2020. At the time of writing, the legislation to achieve this, the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020, had just been passed.1s1 and Sch 1 of the Act; The Immigration and Social Security Coordination (EU Withdrawal) Act 2020 (Commencement) Regulations 2020, No.1279
This article looks at the main changes to rights to reside and benefit entitlement that will result from this ending of free movement, for EEA nationals, their family members and primary carers, living in the UK.2In this article, references to EEA nationals include Swiss nationals; and references to EEA nationals and their family members should, in general, be read as also including those with derivative residence rights under the EEA Regulations, as they have the same eligibility to apply to the EUSS, and the same temporary protections. Note: the changes discussed will not directly affect Irish citizens who will continue to have the right to enter and remain in the UK without leave.
The status quo
European free movement residence rights currently enable many EEA and some non-EEA nationals to be entitled to benefits that require a right to reside.3The benefits that require a right to reside are: universal credit, pension credit, housing benefit, child benefit, income support, income-related employment and support allowance, income-based jobseeker’s allowance and child tax credit. Note: council tax reduction also requires a right to reside.
These rights also enable some non-EEA nationals to be entitled to benefits that they would otherwise be excluded from if, without the free movement right, they would be defined as a ‘person subject to immigration control’ (the definition is in the last section of this article).
European free movement residence rights currently exist alongside other parts of UK immigration law, of particular relevance being the EU Settlement Scheme (EUSS). Under the EUSS an EEA national resident in the UK before the end of the transition period, and her/his family members, can obtain settled status (indefinite leave), in broad terms following five years’ residence in the UK, or pre-settled status (limited leave for five years) if residence in the UK is less than five years.
While settled status satisfies the right to reside requirement for all benefits that have it, pre-settled status is listed as an excluded right to reside for each of these benefits. At the time of writing, a challenge to this exclusion had just been heard in the Court of Appeal and judgement was pending.4R (Fratila and Tanase) v SSWP – heard 27-28 October 2020
The exclusion of pre-settled status as a qualifying right to reside means that anyone with this status needs another non-excluded right to reside to be entitled to the benefit, and that generally means a free movement residence right.
Temporary protection during grace period
Although, as noted above, to be eligible for leave under the EUSS the applicant must be an EEA national who began residing in the UK before 31 December 2020, or be the family member of such an EEA national, the deadline for applications is six months later on 30 June 2021.5Reg 2, Citizens’ Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020, No.1209 (‘Grace Period Regs’) and the articles of the withdrawal agreements listed. Applications after this date will be possible only in limited circumstances.
Consequently, the ending of free movement rights from 11 pm on 31 December 2020 would mean, if there were no further provision made, that those who are still within the deadline to apply for leave, but have not yet done so, would be left without a lawful basis for their residence in the UK.
To address this, and other legal gaps, regulations (the ‘Grace Period Regulations’) provide ‘temporary protection’ during this ‘grace period’ from 1 January 2021 to 30 June 2021.6The ‘grace period’ is defined in reg 3(4) Grace Period Regs.
These protections take effect at 11 pm on 31 December when the EEA Regulations7The Immigration (European Economic Area) Regulations 2016, No.1052
will be revoked, and provide that for those who are protected, the EEA Regulations continue to have effect (subject to certain modifications8Generally to take account of recent caselaw, much of which is positive.)
for the purpose (among others) of entitlements to social security benefits.
Who is protected by the ‘Grace Period Regulations’
This temporary protection is provided if someone is a ‘relevant person’ which is defined as someone who does not have leave under the EUSS and:9Reg 3 Grace Period Regs
•was ‘lawfully resident by virtue of the EEA Regulations’ on 31 December 2020; or
•is the ‘relevant family member’ of a person who on 31 December 2020:
◦did not have leave under the EUSS; and
◦was ‘lawfully resident by virtue of the EEA Regs’.
‘Lawfully resident by virtue of the EEA Regulations’ broadly means has a right to reside under the EEA Regulations and, importantly, does not require someone to have been present in the UK on 31 December 2020. Indeed, the person is treated as resident in the UK during absences that would be ignored in the calculation of permanent residence (eg, up to six months in any year) or if s/he had a permanent right to reside and had been absent for less than five years on 31 December.10Reg 3(5) and (6) Grace Period Regs
A ‘relevant family member’ of a person (‘P’) includes anyone who was defined as a family member of P under the EEA Regulations11Regs 7 and 8 EEA Regs – ie, spouse, civil partner, (grand)child under 21 or dependent (grand)child aged 21+ or dependent (grand)parent and an ‘extended family member’ with residence document issued under EEA Regs
on 31 December 2020, plus the durable partner of P on that date (ie, without the need for an EEA residence document), plus the child of P in certain circumstances, such as if the other parent is British or has leave under the EUSS or is a ‘relevant person’.
Significantly, a ‘relevant person’ can be so defined on the basis of having had any right to reside under the EEA Regulations on 31 December 2020, and that person can then be entitled to benefit on any date in the grace period on which s/he has a non-excluded right to reside,12The excluded residence rights are listed on pp1592-3 of the Welfare Benefits and Tax Credits Handbook 2020/2021
. which may be different to the right to reside held on 31 December.
Sofia is a Spanish national who arrived in the UK with her three year old on 24 December 2020. On 31 December 2020, Sofia has an initial right to reside under regulation 13 of the EEA Regulations. In February, she starts looking for work and on 25 March 2021 claims child benefit (and is entitled on the basis of her non-excluded right to reside as a jobseeker and having lived in the UK for three months). She finds a job three weeks later and on 25 April Sofia claims universal credit (and is entitled on the basis of her non-excluded right to reside as a worker.
People with pre-settled status
The definition of ‘relevant person’ specifically excludes anyone with leave under the EUSS. This is not a problem if the person has settled status as this is a non-excluded right to reside for all benefits that have that requirement. The potential hole in protection for those with pre-settled status is not addressed in the Grace Period Regulations, but is covered by separate regulations. These regulations provide for the EEA Regulations to continue to have effect for the purpose of benefit entitlements for those with pre-settled status, despite the EEA Regulations being revoked more generally.13Reg 83 and Sch 4, Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations 2020, No.1309
When the protection ends
The temporary protection ceases for a ‘relevant person’ when s/he is granted leave under the EUSS, or after 30 June 2021, if that is sooner. However, if the person has, by 30 June, made a valid application for leave under the EUSS, then the temporary protection continues until that application for leave is finally determined (including any appeal) or withdrawn.14Reg 4 Grace Period Regs
For those with pre-settled status, the protection (ie, continuation of the EEA Regulations) only ends once the person ceases to have pre-settled status. Therefore, given that pre- settled status is granted for five years, the EEA Regulations will continue to have relevance for many years to come.
Rules for those without protection
For EEA nationals and their family members who are not ‘lawfully resident by virtue of the EEA Regulations’ on 31 December 2020, and who do not have pre-settled status, the free movement residence rights provided under the EEA Regulations will be revoked. This can apply both to EEA nationals resident in UK before 31 December and their family members (if they lack a right to reside on that date and have not obtained pre-settled status), and EEA nationals and their family members who arrive after free movement rights have been ended. However, the significant difference between these two groups is that only those in the former group will be eligible to apply for leave under the EUSS. If granted settled status, they will be then able to access all benefits or, if granted pre-settled status, will be able to make use of the EEA Regulations and, while they have a non-excluded right to reside, be able to access benefits that require a right to reside.
The primary barrier to accessing benefits for those who do not have any protections after free movement residence rights have been ended will be the exclusion from most benefits15A full list is given on p1564 of the Welfare Benefits and Tax Credits Handbook 2020/2021.
of those defined as a ‘person subject to immigration control’, because this definition is itself changing.
Whereas currently the definition16s115(9) Immigration and Asylum Act 1999
of this term begins: ‘A person who is not a national of an EEA state and
who…[falls into one of the listed groups – see below]’, regulations omit the words underlined, with the effect of expanding the definition to EEA nationals as well as non-EEA nationals.17Reg 12(7) Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations 2020, No.1309
The definition of person subject to immigration control will therefore be:
‘A person who:
•requires leave to enter/remain but does not have it;
•has leave subject to a ‘no recourse to public funds’ restriction;
•has leave as a result of a maintenance undertaking;
•has leave solely due to appealing a refusal to vary leave.’
this change does not take effect during the grace period for anyone defined as a ‘relevant person’ (or thereafter if an EUSS application, made by 30 June, is not yet finally determined.18Regs 3, 4 and 12(i) Grace Period Regs
Furthermore, anyone who has leave granted under the EUSS will not be a defined as a ‘person subject to immigration control’ (unless the fourth bullet applies) as the leave is never granted subject to a ‘no recourse to public funds’ condition. However, other EEA nationals, including significant numbers who do not have, but will require, leave or who arrive after the end of free movement and are granted leave subject to a ‘no recourse to public funds’ restriction, will be defined as persons subject to immigration control and excluded from most social security benefits on that basis.
Consequently, the limited exempt groups that enable those defined as a ‘persons subject to immigration control’ to disapply this exclusion for specific benefits are due to become of greater importance for claimants and their advisers.T19hese exempt groups are summarised on pp1565-7 of the Welfare Benefits and Tax Credits Handbook 2020/2021, and are covered in more detail in Chapter 8 of the Benefits for Migrants Handbook.
Of particular note is the exempt group that enables access to means-tested benefits for nationals of countries who have ratified either the European Convention on Socia land Medical Assistance (1961) or the Council of Europe Social Charter,20These are listed on the Council of Europe website, and include all EEA states except Bulgaria, Liechtenstein, Romania and Slovenia.
and who are ‘lawfully present’ (which includes being within a period of leave).
However, to end on a note of caution, this is a rapidly changing area and the specifics of exempt groups, and of benefit entitlement more broadly, are likely to change as new arrangements are negotiated between the UK and individual countries, and further legislation is passed in the UK.