Introduction

 In order to secure Universal Credit, other means-tested benefits, Pension Credit, or universal benefits such as Child Benefit, an EU Citizen must, among other things pass an immigration/right to reside test.

That test is found in two places. Firstly, the Immigration and Asylum Act 1999, s 115, which prevents those who requireleave to enter or remain but who do not have it, or who do have leave to enter or remain but subject to a ‘no recourse to public funds’ restriction from access to benefits (for Tax Credits the same restrictions are applied by the Tax Credits Act 2002, s 42). EU Citizens and their family members who have an EU right to reside do not requireleave to enter or remain and so are not excluded by this provision. In addition, people with Settled Status or Pre-Settled Status are not excluded as these are forms of leave to enter or remain (although as will be seen below, people with Pre-Settled Status have other difficulties).

Secondly, even if a person is not excluded by the Immigration and Asylum Act 1999, s 115, they must still establish that they have a qualifying  EU ‘right to reside’ under specific regulations made in respect of the relevant benefit or credit, see for example the Universal Credit Regulations 2013, regulation 9, in order to be eligible for the benefit or credit in question.

Some EU rights to reside render a person eligible without more, for example a Spanish national employed in a supermarket is a ‘Worker’ deemed to be eligible. Once eligible, he must then go in to satisfy other conditions applicable to all eligible persons including British citizens. The same is true for a self-employed Italian journalist, exercising a right of establishment through her work and residence in the UK. She will be eligible for the benefit or credit she seeks (subject to satisfaction of the other conditions).

Other EU rights to reside render a person eligible for the relevant benefit or credit only if they also satisfy the habitual residence test. Thus, an EU Citizen exercising rights of residence as a Student or a Self-Sufficient basis must show also that she is habitually resident.

Thereafter, depending on the benefit or credit in question, a particular EU right to reside may render a person ineligible if that is her sole right to reside. For example, an EU right of residence in the UK solely with an initial right of residence (first three months after arrival in the UK) does not without more render a person eligible for Universal Credit (though it would confer eligibility for Child Benefit).

How does Brexit, the Withdrawal Agreement, the European Union (Withdrawal Agreement) Act 2020, and the Settled Status regime under Appendix EU of the Immigration Rules, change the picture?

The Transition Period to 31 December 2020

 At present EU Citizens and their family members are able to secure Settled Status (indefinite leave to remain/ILR) or Pre-Settled Status (limited leave to enter or remain) under Appendix EU to the Immigration Rules.

As regards eligibility for a benefit or credit, an EU Citizen with Settled Status/ILR, who is also habitually resident (in the UK, Channel Islands, Isle of Man, or Ireland), will be eligible for the benefit or credit in question (subject to satisfaction of the other applicable conditions). ILR is a form of leave to remain on which no conditions may be imposed. Further, it is a right to reside. That the person with Settled Status/ILR may also have a right to reside under EU law on some other basis, for example the EU Right of Permanent Residence, provides another, additional basis for a qualifying immigration status/right to reside but otherwise adds nothing unless that status exempts the person from the habitual residence test in circumstances where the person is not yet judged to be habitually resident.  By way of example, the EU Right of Permanent Residence acquired by virtue of permanent incapacity due to an accident at work, exempts a person from satisfying the habitual residence test when seeking to satisfy right to reside conditions.

However, Pre-Settled Status/limited leave to enter or remain is not an immigration status/right to reside that by itself renders a person eligible for a relevant benefit or credit. In fact, as a result of amendments to the right to reside tests introduced by regulations such as the Social Security (Income-Related Benefits) (Updating and Amendment) (EU Exit) Regulations 2019, it is plain that this is a non-qualifying status. Anyone with Pre-Settled Status must prove some other status in order to eligible for a relevant benefit or credit. In practice this means proving a qualifying right to reside under EU law, such as Worker status, Self-Employed status, the Permanent Right of Residence, being a family member, and so on.

Moreover, when seeking a relevant benefit or credit it will not ordinarily be enough for such a person to produce an EEA Registration Certificate or an EEA Residence Card. To satisfy the decision maker as to eligibility, the person is going to have to do more: she is going to have to prove the underlying entitlement. Thus, an EU Citizen working in the UK for two years, is going to have to prove that she is in genuine and effective work. That she did not have to prove she was in work when she was granted Pre-Settled Status makes no difference; if she wants the relevant benefit or credit, she will have to do so. Pre-Settled Status may provide an immigration status that will endure after Brexit and the end of the transition period (31 December 2020) but it does not secure access to these benefits and credits.

In the transition period after the UK leaves the EU down to 31 December 2020, EU rights to reside in the UK will continue to be available, see sections 1 and 2 of the European Union (Withdrawal Agreement) Act 2020 amending the European Union (Withdrawal) Act 2018. Thus a person with Pre-Settled Status will be able to prove her right to reside in EU law (where she has such a right as a Worker,  Self-Employed person, person with Permanent Residence, family member, and so on) and thus demonstrate eligibility for the relevant benefit or credit in this period by virtue of a qualifying right to reside (remember some EU rights to reside  such as the initial right of residence do not render a person eligible for particular benefits or credits, see above).

After the end of the Transition Period (after 31 December 2020) but before the Deadline for Applying for Settled Status

 In the period after the end of the transition period (31 December 2020) but before the deadline for applying for Settled Status (currently the end of June 2021), people with Settled Status continue to be eligible for benefits and credits, as the case may be, but what of those with Pre-Settled Status or no status documents?

EU rights to reside under the EU Treaties will no longer be available but they may have rights arising under the UK-EU Withdrawal Agreement by virtue of having been Workers, Self-employed, persons with Permanent Residence rights, family members, and so on, before the end of the transition period. Such rights are expressly provided for in the Withdrawal Agreement, see Articles 13 and 15 of the Agreement. Such persons are also entitled to residence documents in recognition of that right, see Article 18 of the Agreement. Finally, such persons must be treated equally and not discriminated against on grounds of nationality, see Article 12 and Article 23 of the Agreement. How are such persons to be protected in UK law?

By section 14 of the European Union (Withdrawal Agreement) Act 2020 an appropriate authority (UK Ministers; a devolved authority in Scotland, Wales, or Northern Ireland; or both) may make such regulations as are considered appropriate to implement the provisions on the prohibition on discrimination on grounds of nationality and the right to equal treatment found in the Withdrawal Agreement.

Such regulations may be made not only for persons falling within the personal scope of the Withdrawal Agreement but also in respect of other persons who may be granted leave to enter or remain under the residence scheme immigration rules (for example Appendix EU of the Immigration Rules), whether or not they have been granted such leave, see my blog post Immigration Rights of Entry and Residence for EU Citizens under the UK’s European Union (Withdrawal Agreement) Bill for details for the residence scheme immigration rules.

 Not only may the regulations made under section 14 modify other regulations, they may also modify an Act of Parliament. Thus, the power to make such regulations is what is known colloquially as a Henry VIII power.

Any regulations made under the section 14 will need to provide a route to eligibility for persons not yet qualifying for Settled Status but who have rights that arise directly under the Withdrawal Agreement. Such persons will have rights regardless of whether they have Pre-Settled Status or no status documents at all. Such persons will be able to rely on their rights directly before local authorities, other public authorities, and before the Courts, see section 5 of the European Union (Withdrawal Agreement) Act 2020, amending the European Union (Withdrawal) Act 2018.

After the Deadline for Applying for Settled Status (30 June 2021)

In the period after the end of the deadline for applying for Settled Status (currently the end of June 2021), people with Settled Status continue to be eligible for benefits and credits, as the case may be, but what of those with Pre-Settled Status or no status documents?

As matters stand, persons with Pre-Settled Status who fall within the personal scope of the Withdrawal Agreement (as a Worker, Self-employed person, family member, and so on)  should be able to show they have secured  residence documentation under the Withdrawal Agreement, and therefore should be able to access the provisions in the Withdrawal Agreement that prohibit discrimination on grounds of nationality and provide for equal treatment. But it will be for the regulations made under section 14 of the European Union (Withdrawal Agreement) Act 2020 so to provide.

Similarly, for those with Pre-Settled Status but who do not fall within the personal scope of the Withdrawal Agreement (i.e. present in the UK but without exercising an EU right of residence), it will be up to Ministers making regulations to provide for them. If they do not, such persons will be ineligible for benefits or credits, as the case may be.

As regards with those with no status documents in the period after the end of the deadline for applying for Settled Status (currently the end of June 2021), as  matters stand they will be ineligible for benefits or credits, as the case may be, notwithstanding that they would otherwise fall within the scope of the Withdrawal Agreement were they to possess such documentation. They will also lack any lawful basis to be in the UK and be liable to removal, a situation created by the imposition of a Settled Status deadline and one which is scandalous.

For both those with Pre-Settled Status and those with no documentation, the position is highly unsatisfactory. It is to be hoped that Ministers will make regulations that are broad enough to protect and support all those EU Citizens and their family members vulnerable to the consequences of their exclusion from benefits and credits.