Can EU Citizens Claim Benefits in the UK After Brexit?
Anyone even vaguely familiar with immigration law will know that certain questions are rarely answered with a simple yes or no. And with the background of the so-called, ‘hostile environment’, there are thousands of cases of EU citizens who have applied for benefits such as Universal Credit, only to be refused either due to administrative errors or specific restrictions put in place by the Government.
Whether an EU citizen will be able to claim benefits from the UK Government once we end the current transition period at the end of 2020 will depend on a range of factors, which will be explored in this article.
Habitual Residence and Right to Reside Tests
Since 1994, nationals of any country in the European Economic Area (EEA), including those from EU, Norway, Switzerland, Iceland or Liechtenstein, have been required to satisfy the ‘habitual residence test’. To pass the habitual residence test, applicants for benefits need to prove that they have the ‘right to reside’ by being a worker, self-employed, a jobseeker (for income-based JSA, Child Benefit and Child Tax Credit), or as a self-sufficient student. In addition, family members of a person in any of these categories may also be eligible to apply for benefits.
According to the UK Government website, for EU and EEA nationals in the UK, “there will be no changes before 1st January 2021 to the rules on claiming benefits and pensions in the UK as a result of the UK leaving the EU”, “Under the Withdrawal Agreement, you and your family members living in the UK by 31st December 2020 will be able to claim or continue receiving UK benefits for as long as you continue to be lawfully resident in the UK and meet the eligibility requirements”. Crucially, the Government website then states, “You will need to apply to the EU Settlement Scheme by 30th June 2021 to remain in the UK and be eligible to claim benefits.”
Do you Have Settled Status under the EU Settlement Scheme?
The EU Settlement Scheme opened in March 2019 to allow EU citizens to secure the right to permanently reside in the UK after having lived here for five years. The good news is that those EEA nationals who have secured ‘Settled Status’ under the EU Settlement Scheme satisfy the right to reside requirement for benefits automatically .
For people with ‘Pre-Settled Status’, the picture is less clear. Pre-settled Status is awarded to people applying under the EU Settlement Scheme who has not yet reached the five-year qualification period but will be able to work towards full Settled Status. The Government website states that those with Pre-settled Status will be able to, “access public funds such as benefits and pensions if you’re eligible for them”.
However, the recent High Court case of Fratila and Tanase v SSWP  EWHC 998 (Admin), has now confirmed that those with pre-settled Status being refused access to public funds are subject to indirect discrimination on the basis of their nationality. In this case, the claimant, Mr Tanase, an EU citizen who came to the UK to be cared for by another EU citizen, Ms Fratila, was refused Universal Credit on the basis that his Pre-settled Status did not give him the right to reside, and hence he didn’t pass the habitual residence test. By justifying this type of discrimination, it will be more likely that those with Pre-settled Status will be refused benefits in the future.
The Child Poverty Action Group (CPAG), who brought the High Court case are appealing the decision.
How can I Improve my Chances of Continuing to Receive Benefits after 1st January 2021?
If you have Pre-settled Status
Given the outcome of the recent High Court case brought by CPAG, the best advice is to secure Settled Status as soon as possible. In some cases, individuals have been refused full Settled Status and have been granted Pre-settled Status in error. Anyone who believes they should have received full Settled Status should seek the guidance of experienced immigration solicitors in the UK who will be able to assess if there are grounds to challenge the decision. In some cases, the decision is simply due to an error on behalf of the case officer, who may have incorrectly calculated the time in the UK of the applicant. Challenging these decisions means that full Settled Status can be granted, thereby allowing access to public funds when needed.
If you have not yet applied under the EU Settlement Scheme
If you have yet to apply under the EU Settlement Scheme, even if you are yet to meet the five-year requirement for Settled Status, it is essential that you submit your application before 30th June 2021. Failure to do so will mean you lose the opportunity to protect your UK residence status, and hence eligibility to seek recourse to public funds in the UK.
If you are planning to arrive in the UK on or after 1st January 2021
While the EU Settlement Scheme will remain open for applications until 30th June 2021, it is only available for those who were living in the UK before 31st December 2020. For individuals arriving after 1st January 2021, you will not be able to apply for EU Settlement in the UK. It is currently unclear how or if those arriving after the end of the transition period will be entitled to seek benefits in the UK.
Unfortunately, there are many cases of EU citizens applying for benefits who have been refused despite being eligible. Given the ‘hostile environment’ introduced by former PM, Theresa May, and to some extent continued under the current Home Secretary, Priti Patel, we do expect to see many more cases of EU/EEA nationals who meet the requirements to secure their right of residence to be refused benefits and are hence eligible, being refused once the extension period has ended.
If your application for benefits was denied despite being eligible, do not simply accept the decision. It is recommended that you seek legal advice from our experienced immigration solicitors as soon as possible. In the new post-Brexit extension world, unfortunately, anything is possible.