New EEA Caselaw
Pre-Settled Status and right to live in 'dignified conditions'
A decision made by the Upper Tribunal on 12th December 2022 (SSWP vs AT) could help some EEA Nationals (and certain family members) claim UC – but the scope of who it can help is very limited.
What did the court decide?
The Upper Tribunal ruled that before refusing a UC claim of an EEA National (or family member) with Pre-Settled Status, the DWP must consider whether doing so put the claimant (and any dependent child) at risk of not being able to live in ‘dignified conditions’. Let’s break down what this means -
EEA Nationals (and family members) with Pre-Settled Status
Following Brexit, to remain ‘legally present’ in the UK, certain EEA Nationals and their non-EEA family members need to have applied / apply to the EU Settlement Scheme (EUSS). If they have been continuously living in the UK for less than 5 years, they are granted Pre-Settled Status – this allows them to remain in the UK and enables them to claim UC if they have a ‘qualifying right to reside for benefit purposes’.
An EEA National / family member should know if they applied to the EUSS and what status they were given. If they have not yet applied, they should seek expert immigration advice.
At risk of not being able to live in ‘dignified conditions’
If a claimant with Pre-Settled Status doesn’t have a qualifying right to reside for benefit purposes, the DWP have been rejecting their UC claims. But the Upper Tribunal ruled that before doing so the DWP should consider whether the claimant (and any dependent child) is able to live in ‘dignified conditions’ without UC – this is because the right to do so is conferred on them by EU law. The Upper Tribunal explained that to live in ‘dignified conditions’ the claimant must have reasonable access to the necessary resources to ensure their ‘very basic needs’ are met (i.e. housing (including heat), food, clothing and hygiene). Each case should be considered individually, and decisions should be based on the claimant’s actual circumstances (e.g. if they theoretically should have access to support from the Local Authority but have applied for this help and been rejected, the decision maker should not consider this resource available to them).
Can I use this caselaw to support a claimant?
Firstly, we believe that the ‘anti-test case rule’ will probably apply, this means that the caselaw can only be used after the date on which it was decided (12th December 2022). This means that it cannot be used retrospectively to appeal decisions made before this date.
Secondly, the Secretary of State for Work and Pensions was not happy with the outcome and has been granted permission to take the case to the Court of Appeal (COA). This means that decision makers and judges can delay making decisions on claims / appeals using this caselaw until after the case has been heard in the COA (which will probably happen in March 2023). Claimants can request that the decision is made immediately as they are facing hardship, but they should be aware that any UC they are paid would be considered an overpayment if the DWP win their appeal.
EEA National refused UC?
This case will only be applicable to a small number of claimants and will not enable immediate assistance. Any EEA National refused UC should seek advice from an immigration expert. The DWP often make mistakes when deciding benefit claims from EEA Nationals, or someone may have a qualifying right to reside but be having difficulty proving it. Also some people will have been given Pre-Settled Status despite having continuously resided in the UK for five years, because they were unable to provide sufficient evidence. They should obtain the evidence they need and re-apply in order to be given Settled Status (and so be able to claim UC without having a qualifying Right to Reside). Information on the evidence they could provide on this page.