Introduction

 Many EU Citizens/EEA nationals and their family members have lost their work or income as a result of the Coronavirus crisis. Many of them are leading precarious lives as a result. What social security benefits are available to them and what immigration/residence tests must be satisfied to render a person eligible? What difference does having Settled Status, Pre-settled Status, or no Status make?

For an overview of the eligibility for benefits under the EU-UK Withdrawal Agreement see my blog post Universal Credit, Means-Tested Benefits, Pension Credit, Tax Credits, and Universal Benefits for EU Citizens in the UK after Brexit under the Withdrawal Agreement.

UK social security law is complex. Every person who seeks to navigate it should obtain advice on what is best for them. This blog post is not advice.

Employees who are self-isolating may be able to claim Statutory Sick Pay (paid by employers and not subject to an immigration status/residence eligibility test), or where not available Employment and Support Allowance; they may also be able to claim Universal Credit. Those made unemployed may be able to claim Universal Credit.

Self-employed persons who are self-isolating may be able to claim Employment and Support Allowance; they may also be able to claim Universal Credit. Those made unemployed may be able to claim Universal Credit.

Settled Status, Pre-settled Status, and no Status

 Settled Status

 EU Citizens/EEA nationals and their family members who have been granted Settled Status under Appendix EU of the Immigration Rules (typically after having been in the UK for at least 5 years) have indefinite leave to remain (ILR) in the UK. People with ILR cannot have restrictions or conditions imposed under the permission to reside in the UK. Where eligibility for a benefit depends on immigration status/residence, ILR will satisfy that requirement, however a person may also have to show that they are habitually resident.

Pre-settled Status

 EU Citizens/EEA nationals and their family members who have been granted Pre-settled Status under Appendix EU of the Immigration Rules (typically after having been in the UK for less than 5 years) have limited leave to remain (LLR) in the UK. People with LLR may have conditions or restrictions imposed on their permission to reside. Even if they do not, Pre-settled status is expressly excluded from counting as a qualifying immigration status for many social security benefits that impose an immigration status/residence eligibility test.

However, a person with Pre-settled status may still rely on an EU right of residence (Worker, Self-employed person, family member of such a person, etc.) acquired before the end of the transition period (31 December 2020) in order to satisfy an immigration status/residence eligibility test.

There are many different EU rights to reside: some qualify, others do not. The answer will depend on the eligibility test imposed for the benefit in question. A self-employed Italian journalist with Pre-settled Status will qualify as a person with an EU right of residence as self-employed. A French citizen with Pre-settled Status not working or otherwise self-sufficient will not qualify.

People with Pre-settled Status who do not have an EU right of residence that counts as a qualifying immigration status will not, without more, have access to a social security benefit that imposes an immigration status/residence eligibility test.

No Status

 EU Citizens/EEA nationals and their family members who have no Status under Appendix EU of the Immigration Rules (due to not having applied for Settled Status or having been refused) will not, without more, have access to a social security benefit that imposes an immigration status/residence eligibility test.

 However, a person with no Status (under Appendix EU of the Immigration Rules) status may still rely on an EU right of residence (Worker, Self-employed person, family member of such a person, etc.) acquired before the end of the transition period (31 December 2020) in order to satisfy an immigration status/residence eligibility test.

There are many different EU rights to reside: some qualify, others do not. The answer will depend on the eligibility test imposed for the benefit in question.

Universal Credit

For most new claimants, Universal Credit (UC) replaces income-based Jobseeker’s Allowance (JSA), income-related Employment and Support Allowance (ESA), Income Support, Housing Benefit, Child Tax Credit, and Working Tax Credit. It is the main means-tested benefit for those who lose their work or experience financial hardship.

Note: Satisfaction of the immigration status/residence test merely renders a person eligible for the benefit; they must still satisfy the other conditions for an award.

Qualifying Immigration Status/Residence Test

UC has an immigration status/ residence test. A person must be in Great Britain; habitually resident in the UK, Channel Islands, Isle of Man, or the Republic of Ireland (unless exempt from that requirement); and possess a qualifying right to reside.

A person with Settled Status has a qualifying immigration status but will need to show they are habitually resident.

A person with Pre-settled Status does not have a qualifying immigration status and will need to look to see if they have an EU right to reside (acquired before the end of the transition period, 31 December 2020) that is a qualifying immigration status.

A person with no Status (under Appendix EU of the Immigration Rules) does not have a qualifying immigration status and will need to look to see if they have an EU right to reside (acquired before the end of the transition period, 31 December 2020) that is a qualifying immigration status.

Certain EU Rights to reside to do count as a qualifying immigration status.

The EU initial right of residence (for up to 3 months on arrival) is nota qualifying immigration status.

EU Jobseeker status is not a qualifying immigration status. This is a key exclusion for those EU Citizens who seek work in the UK but who have not yet worked or who have lost work but who have not retained Worker status or retained Self-employed status (see below). Thus, it is critical for a person who has lost work to retain Worker status or Self-employed status.

The EU right to reside as the primary carer of a British citizen child (the Zambrano) right isnota qualifying immigration status.

The following EU rights to reside are qualifying EU rights to reside where, additionally, a person is exempt from the habitual residence test: EU Citizen/EEA national Worker; EU Citizen/EEA national Self-employed person; an EU Citizen/EEA national who has an EU right of permanent residence acquired in less than 5 years (e.g. where permanently incapacitated); and the family members of the preceding classes of people.

The following EU rights to reside are among the qualifying EU rights to reside where, additionally, a person must satisfy the habitual residence test: EU Citizen/ EEA national Student; EU Citizen/EEA national Self-sufficient person (not a straightforward thing to be); an EU Citizen/EEA national who has acquired the EU right of permanent residence acquired after 5 years (e.g. after 5 years’ work); the family member of the preceding classes of persons; and a person with an EU-derived right (e.g. the primary carer of the child of a former worker).

Retained Worker Status/Retained Self-employed Status

 As noted above, EU Jobseeker status is a right to reside but it is nota qualifying immigration status for access to UC. Therefore, an EU Citizen/EEA national who has lost their work and who seeks work needs to show that they retain Worker status or retain Self-employed status in order to be eligible for UC. Worker Status or Self-employed status may be retained where a person is temporarily unable to work due to illness or accident; is temporarily unable to work due to pregnancy or maternity; or is able to retain status where they have worked for specified periods and are seeking further work. As regards the last of these, the rules for retaining status and for how long are complex and a person who seeks to retain status  on this basis will require advice.

Habitual Residence

 Where a person must satisfy an habitual residence test, generally speaking, that person must show that they have been in resident for an appreciable period of time and have a settled intention to reside. One to three months is often cited as an appreciable period of time but the assessment is fact-sensitive. Temporary absences from the UK should not mean a person ceases to be habitually resident. Further, the greater the evidence of a settled intention to reside, the shorter the appreciable period of time necessary to be habitually resident.

Interaction between Universal Credit and Tax Credits

 A word of caution, people presently in receipt of Working Tax Credit and/or Child Tax Credit may be tempted to apply for UC in order to boost their income. They should take advice. Claiming UC leads to the termination of tax credits, in circumstances where the resulting UC payment may leave them worse off. Further, note also that the system of tax credits has been adjusted in response to the Coronavirus crisis and is  more generous for those with reduced work.

 Contribution-based Job-seeker’s Allowance and Contributory Employment and Support Allowance

 Contribution-based Job-seeker’s Allowance and Contributory Employment and Support Allowance are benefits that may be paid where a person is considered to have made the necessary national insurance contributions. They are not means-tested and do nothave an immigration status/residence test in order to a person to be eligible. However, a person making a claim for these benefits should be aware that they still fall within the UC system and a person should take advice before making a claim.

 Changes to Statutory Sick Pay and other Benefits during the Coronavirus Crisis

 For employees, including  EU Citizens/EEA nationals and their family members, changes have been made to the rules for Statutory Sick Pay (SSP) so that anyone who is self-isolating to prevent infection or contamination with Coronavirus, in accordance with guidance published by Public Health England, NHS National Services Scotland or Public Health Wales is deemed to be incapable of work for SSP purposes. Further, SSP is now payable form the first day of sickness absence rather than the fourth, and (at discretion) without the need for a GP’s certificate.

For all persons, including EU Citizens/EEA nationals and their family members, changes have been made to other aspects of UC and to other aspects of Employment and Support Allowance.

For further, detailed, information see:

Benefits and Coronavirus (CPAG)

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