Brexit and Benefits
Brexit has completely changed the rights of European citizens to live and work in the UK – And a knock on effect of this has been a major change to benefit entitlements.
Most means-tested benefits and Child Benefit have a Right-to Reside test. You must have a legal right to live in the UK* in order to claim.
Before Brexit there was a wide range of ways that a European national and their family members could pass the right to reside test. Those rights will come to an end on 30th June 2021. They are being replaced by the European Settlement Scheme
Permission To Live in The UK
British citizens, Irish Citizens and a small group of Commonwealth citizens have an automatic right to live in the United Kingdom.
Everyone else needs permission to be here.
That permission, which is given by the Home Office, is strangely called Leave (it sounds like the opposite of what it is).
There are lots of different forms of leave but the most important for European nationals are Limited Leave and Indefinite Leave.
The European Settlement Scheme
The European Settlement Scheme gives EEA and Swiss nationals, their family members and some carers, permission to live in the UK.
You must apply to the scheme before 30th June 2021 and you must be:
- living in the United Kingdom before 31st December 2020, or,
- a close family member, joining someone who was living in the United Kingdom before 31st December 2020.
You get:
- Indefinite Leave, known as settled status, if you can show that you have lived in the UK for at least six months of each year for five continuous years.
- Limited leave for five years, known as pre-settled status, if you can show that you have lived in the UK for less than five years.
Any time that you have been living in the United Kingdom counts, even if you did not have a right-to-reside under the rules that were in operation at that time..
Some breaks are allowed in counting how long you have been living in the United Kingdom.
You can also get settled status if you qualify for an EEA right of permanent residence under the pre-Brexit rules – which might be after a shorter period than five years.
If you get pre-settled status you must apply for settled status before your pre-settled status expires.
If you are a non-EEA national you can be covered by the scheme if you are the family member of an EEA national, or in some circumstances a carer. You should get advice before you apply.
If you have a criminal conviction; or if you have been subject to a deportation or removal decision, you should get advice before you apply.
You do not usually get a document to show your status. Instead the Home Office will email the decision to you and will provide you with a share code to allow benefits staff to check your status.
If you disagree with the decision you can apply for an administrative review at a cost of £80 or you can appeal. Get advice before doing either of these.
EU Settlement and Benefits
If you have an EEA right of residence from before Brexit (see Benefit Notes pp45-51) this will allow you to pass the Right-to-Reside test for benefits until 30th June 2021.
If you have settled status you pass the right to reside test for the means-tested benefits and Child Benefit.
If you have pre-settled status, DWP says that this does not count to pass the right to reside test, but a recent case in the Court of Appeal has decided that this is incorrect.
This case is known as Fratila – or officially R (Fratila and Tanase) v SSWP [2020] EWCA Civ 1741
The Court of Appeal has scrapped the rule that says that pre-settled status doesn’t count for benefit. But in order to give the DWP a chance to appeal to the Supreme Court this won’t take effect until 26 February 2021.
The effect of Fratila
If you have been refused benefit at any time in the last 13 months because you only have pre-settled status you can ask for this decision to be looked at again.
You can ask for a revision (mandatory reconsideration) of the decision or you may be able to appeal to a tribunal.
If you have been awarded pre-settled status, but not claimed benefit, claim now. The DWP may refuse your claim or, if they decide to appeal to the Supreme Court, they may ‘stock-pile’ it until there is a final decision. Nonetheless you should claim as soon as possible to protect your right to back-payments.
If you are a support worker or advice worker and you need help to put Fratila into practice for your service-user, feel free to get in touch.