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What can someone with no Free Movement Right to Reside do?

To be entitled to benefits an EU National with Pre-Settled Status^ has to have a Free Movement Right to Reside (click here for more details).

However due to some caselaw, where an EU National with Pre-Settled Status^ doesn't have a Free Movement Right to Reside, the benefit authority must consider whether refusing the benefit would mean that the claimant (and their family) would be at risk of living in the UK in undignified conditions (which would be a breach of their Human Rights). If they find that it would, then they must award that benefit.

DWP guidance states:

'The AT threshold for this guidance means the inability to ‘meet their most basic needs’ at present or in the near future and should be considered in all cases. The threshold is high and the claimant’s position must amount to extreme material poverty incompatible with human dignity. Areas to be considered for basic needs are:

food;

personal hygiene;

clothing;

housing; and

adequate heating.'

'When looking at a claimant’s inability to meet their most basic needs, decision makers should consider what alternative financial resources claimants are in receipt of and whether those are sufficient to meet their most basic needs at present or in the near future.'

The Guidance states that this only applies to new claims for Universal Credit, Housing Benefit and Pension Credit from the date of the Court of Appeal’s decision: SSWP v AT [2023] EWCA Civ 1307 for England, Scotland and Wales being 12th December 2022 (see CG v Department for Communities NI in Northern Ireland).


 

What should a claimant do?

When applying for a benefit which requires a Free Movement Right to Reside, the EU National should seek to provide evidence of the risk that without assistance they would be unable to live in the UK in dignified conditions.

To do this, the claimant needs to demonstrate that there is no other reasonable way they could reliably obtain enough support, such as:

  • the reasons why they are unable to work, and
  • a statement from them, accompanied by any supporting evidence, which addresses the headings below.

 

^ or who have a valid pending application to the EUSS and that application (or appeal against, or administrative review of, a refusal) has not been finally determined, withdrawn or abandoned.

Who doesn't this apply to?

The DWP Guidance states that the AT case does not apply to:

  • claims from non-EU national claimants, including those from Norway, Iceland, Liechtenstein and Switzerland;
  • claimants who were not in scope of the Withdrawal Agreement at the end of the transition period (31/12/20) as ‘they did not exercise a Treaty right such as being a worker, self-employed person, jobseeker, self-sufficient person, student, having a permanent right to reside, being a family member of all of the above, being within the initial 3 months of arrival in the UK, or having a retained or derived right of residence’;
  • claims from those with Settled Status, a Certificate of Application (for the EU Settlement Scheme), or any other form of leave; or
  • decisions considering entitlement before 12 December 2022.

However, it is arguable that the AT case does apply to non-EU national claimants, and those who were not residing in the UK by 31/12/20 – as long as they are covered by the Withdrawal Agreement. This would also include those with a pending application to the EU Settlement Scheme.

Recent cases at the First-tier Tribunal have also supported this (see a Rightsnet thread about this). More information about these particular issues can be found in a CPAG article, which also includes a note for advisers and useful template letters at the bottom of the page:

  • FTT15: EU national with pre-settled status refused universal credit under SSWP v AT because DWP say that they are outside the personal scope of article 10 of the Withdrawal Agreement
  • FTT14: Appeal submissions where DWP say, without explaining why, that SSWP v AT cannot apply to a third country national issued pre-settled status as family member of EU national
 
 
 
 
 
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