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Pre-Settled Status: No Right to Reside
EEA Nationals (and certain family members) who have Pre-Settled Status will only be able to claim / stay on UC if they have a qualifying 'Right to Reside' for benefit purposes.

Single claimant

If they don't have a qualifying 'Right to Reside' for benefit purposes then they cannot make a new claim for UC - but see case law below.

If they are currently on UC and due to a change in circumstances lose their qualifying 'Right to Reside' for benefit purposes, then unless they have a different qualifying 'Right to Reside, their UC should end from the beginning of the Monthly Assessment Period in which they lost it - but at the moment these claims are being suspended whilst we await the outcome of a decision by the Supreme Court - see below.

Couple claim

If they are both EEA Nationals (or family members) with Pre-Settled Status and neither has a qualifying 'Right to Reside' for benefit purposes then they will not be able to make a new claim for UC. If one has a qualifying 'Right to Reside' then they will be able to make a new claim, but they will only be entitled to have the single rate Standard Allowance.

If they are both EEA Nationals (or family members) with Pre-Settled Status and have been claiming UC and they both lose their qualifying 'Right to Reside' for benefit purposes then their UC award would end form the beginning on the Monthly Assessment Period in which they lost it
 - but at the moment these claims are being suspended whilst we await the outcome of a decision by the Supreme Court - see below.
If one loses their qualifying 'Right to Reside' then the UC award can continue but with a single rate Standard Allowance.

Case Law - Fratila

In December 2020 the Court of Appeal ruled that the government acted unlawfully in denying rights to benefits for those EEA Nationals with Pre-Settled Status when they did not also have a Right to Reside.  

But the DWP appealed to the Supreme Court, and we are awaiting the outcome.

Guidance in ADM 02/21 tells decision makers to to delay making a decision in cases where someone with Pre-Settled Status does not have a qualifying 'Right to Reside' for benefit purposes until the outcome is known. But they should take the claimant's circumstances into account before 'stockpiling'* the decision. And they should definitely not refuse benefits where the claimant has a qualifying 'Right to Reside'. 
*Note - the DWP are only stockpiling claims/decisions made before 1.1.21 and they believe claims made on or after 1.1.21 are not affected by this case. However, many commentators believe they are - hopefully this issue will also be resolved by the Supreme Court judgement.

Anyone with Pre-Settled Status should claim Universal Credit as soon as possible and, if refused, should request a Mandatory Reconsideration of that decision quoting this case. This will mean that if the Court of Appeal's decision is upheld, then the UC award could go back to the date of claim.
If they have already had a review decision refusing their claim, then they should appeal to HMCTS. 
If they had previously applied and been refused and that decision was less than 13 months ago then they can request a late MR request - if it was over a month ago they will also need to give reasons for not challenging it earlier. Letter UC HRT11 on this page (in the EEA Nationals box).







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