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What risks EEA Nationals now face due to the new benefit rules...

...in place from 1st January 2021, with further changes from 1st July 2021

New benefit rules can into play on 1st January 2021 - following the end of the Brexit 'transition period'. EEA Nationals that do not understand the new systems could miss out.

Failed to apply to the EU Settlement Scheme by 30th June 2021

EEA nationals (and certain family members) who were living in the UK by 31st December 2020 will have gained rights under EU law. To retain those rights now the UK has left the EU they need to apply to the EU Settlement Scheme and be given either Settled or Pre-Settled Status.

If they fail to do so, they will become unlawfully present in the UK on 1st July 2021. This means that they will no longer have the right to live, work or claim benefits in the UK. If they have been in work then they may lose that job – as their employer would be breaking the law if they continued to employ them. If they have been claiming benefits these will stop. If they have been getting Universal Credit then this will end from the beginning of the Monthly Assessment Period in which July 1st falls. If it is some time before this failure is discovered there will be a recoverable overpayment. NOTE: where this is one member of a couple, then as long as the
other member has the right to claim benefits their benefits will continue, but this will be at a lower amount.


They will not be able to apply to the EUSS from 1st July 2021 unless the Home Office accepts that they had a good reason for not applying on time and applied within a reasonable time period. We do not yet know what will be accepted as a good reason. If not able to make a late application to the EUSS, then to become ‘lawfully present’ in the UK they would have to leave and apply on a Visa or family permit from abroad: but they may not qualify.

Example:
Samia came to the UK from France in 1988. Since her husband died she has been working as a care assistant and currently supplements her income with Universal Credit. She hasn’t picked up on the need to apply to the EU Settlement Scheme. When someone mentioned it she dismissed it as she has been in the UK so long. In August 2021 she is notified that her Universal Credit has ended and that she has not been entitled since 3rd June 2021 (her assessment periods run from 3rd to 2nd of each month so this is the assessment period in which she became ‘unlawfully present’). There is also the risk that she may lose her job as she has no legal right to work in the UK.
 

Not recognising the importance of having Settled Status

EEA nationals (and certain family members) who have Settled Status have the same rights as a British citizen – including the right to claim benefits.

EEA nationals (and certain family members) who have Pre-Settled Status have the right to live and work in the UK, but to be able to claim benefits they must also demonstrate a qualifying ‘Right to Reside’. So where they lose their ‘Right to Reside’ they will also lose their benefits. Where this is one member of a couple, then as long as the other member has the right to claim benefits their benefits
will continue, but this will be at a lower amount.

Someone may have Pre-Settled Status but actually be entitled to Settled Status. They could therefore miss out on the benefits they are entitled to. This could be where:

• Although they had been living in the UK for 5 years when they applied to the EUSS they could not demonstrate this and so were only given Pre-Settled Status.
• They are under 21 and have a parent living in the UK that has Settled Status but did not link their EUSS application to that parents’.
• When they first applied to the EUSS they had not yet been living in the UK 5 years – but they have now. NOTE Pre-Settled Status is awarded for a period of 5 years regardless of how long they had been in the UK when it is granted.


These EEA nationals – were they to apply for Settled Status and be given it – would then not have to also demonstrate a qualifying Right to Reside’ in order to claim benefits.

Example:
Sofia from Romania has separated from her partner, taking their 3 year old daughter. She has lived in the UK since 2014, doing a variety of jobs until the baby was born. Much of the work was cash in hand so she has no records. She claimed benefits occasionally. When she applied to the EU Settlement Scheme the Home Office could not trace sufficient records of her work or claiming history to show five years’ continuous residence in the UK, so although she has been living in the UK for seven years she was only granted Pre-Settled Status. As she currently has no qualifying ‘Right to Reside’ she cannot claim UC. However, she could re-apply to the EUSS supplying as much evidence of her residence as she can – tenancy agreements along with rent statements, paid utility bills etc – to show her continuing residence (note gaps in evidence of less than 6 months in any 12 month period can be allowed).
 

Loss of Right to Reside when they only have Pre-Settled Status

Someone with Pre-Settled Status only qualifies for UC (can stay on UC) if they also have a qualifying ‘Right to Reside’ so if they lose this, and do not have another, they will not be able to apply for UC or if they are on UC this will end from the beginning of the Monthly Assessment Period in which the ‘Right to Reside’ was lost. Whilst this is no different to the rules in place pre 1st January 2021, some
claimants may believe that having Pre-Settled Status is enough to entitle them to UC.

Example
Tomasz is 19 and came to the UK with his mother in 2018: they both have Pre-Settled Status and his mother has a good job so Tomasz has not been seriously looking for work. His mother returns to Poland in January 2021. As she is no longer supporting him, Tomasz claims Universal Credit – he thinks that his Pre-Settled Status is enough to entitle him. However, as has no qualifying ‘Right to
Reside’ so cannot claim UC.
 

DWP decision making errors
As the rules have changed recently – and are due to change again from 1st July 2021 - it would not be unreasonable to suspect that DWP decision makers might make mistakes.

For example:
• Thinking that someone with Settled Status also needs a qualifying ‘Right to Reside’,
• Not asking sufficient questions in determining a qualifying ‘Right to Reside’,
• Assuming that a worker who can’t show they fit the ‘automatically qualifies’ rules for ‘genuine and effective work’ is therefore in work that is ‘marginal and ancillary’ without asking further questions to establish that it is in fact 'genuine and effective'.

Example:
Elvira came to the UK from Portugal in November 2017: she has Pre-Settled Status. Her current job is on a zero hours contract and as she only earns about £170 on average a week she needs to claim Universal Credit. As she has not been earning £183 a week on average for 3 months the DWP refuse her UC saying she doesn’t have a ‘Right to Reside’ as her work isn’t genuine and effective. She needs
to challenge this, providing other evidence to show that it is.
 

Failing to apply for Settled Status by the expiry date of their Pre-Settled Status

When someone is granted Pre-Settled Status it expires after five years. However if they will have been continuously resident in the UK for five years before the expiry they can then apply for Settled Status.
If they don’t do this then they will be ‘unlawfully present’, their benefits will end, and they may need to leave the UK. (Unless the Home Office allows an extension for good reason, as above.)

NOTE: The EU Settlement Scheme opened to applications in June 2018, and those granted Pre- Settled Status are awarded it for a full 5 year period regardless of how long they have been living in the UK. So the earliest someone’s Pre-Settled Status could expire would be June 2023.

Example:
Franco is Italian. He came to the UK on 5th December 2017. He applies to the EU Settlement scheme in March 2021 and is granted Pre-Settled Status on 23rd March 2021, with an expiry date of 22nd March 2026. As he has a qualifying ‘Right to Reside’ as a worker he is able to claim UC. He could have applied for Settled Status from 5th December 2022, but forgets all about it. As he has changed contact details several times and not kept the Home Office up to date, he doesn’t get a reminder from them. He fails to apply, and on 22nd March 2026 his UC ends as he is unlawfully present in the UK. It is possible that the Home Office will accept a late application for Settled Status.
 

Pre-Settled Status – outside the UK for more than six months in a 12 month period

Although Pre-Settled Status is only lost when someone is out of the UK for a two year period, if they are out of the UK for more than six months in any 12 month period (with some limited exceptions) then they will never be able to apply for Settled Status and when their Pre-Settled Status runs out will become ‘unlawfully present’ in the UK.

Example:
Gosia, from Poland, came to the UK in January 2018. In July 2020 she applies for and is granted Pre-Settled Status that runs up to June 2025. If she is continuously resident in the UK then she will be able to apply for Settled Status after being in the UK for five years ie in January 2023.
In December 2020 Gosia goes back to Poland to visit family. As she now has no work in the UK to go back to, she decides to stay with her Mum in Poland until the pandemic is over. She returns to theUK in July 2021.
She doesn’t lose her Pre-Settled Status - she would have to be out of the UK for two years for that to happen – but she has broken her continuous five year period to build up to getting Settled Status.
She will be eligible for benefits up to June 2025 as long as she has a qualifying ‘Right to Reside’. She is not able to extend her Pre-Settled Status so will then become unlawfully resident in the UK.
 

Arrived in the UK from 1st January 2021 on a Visa under the new points based immigration system

From 1st January 2021, any EEA national (apart from some joining family members) who wishes to come to the UK for more than a 6 month visit will need to apply for a Visa.
The Visas under the new immigration system do not allow the holder to have ‘Recourse to Public Funds’. Many of them allow the holder to apply for Indefinite Leave to Remain after they have held the Visa for five years but until then they will be ineligible for UC and other benefits.
NOTE: Where this is one member of a couple, then as long as the other member has the right to claim benefits they can, but this will be at a lower amount.

Example:
Juan from Spain has been offered a job in the UK and applies for a work Visa in January 2021. When he arrives in the UK he is expected not to be a ‘burden on the state’ – his Visa is granted under the condition that he has “No Recourse to Public Funds” so he will be unable to claim any benefits.

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