Advising BME Communities e-bulletin March 2019

23 March 2019

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In this issue:
Brexit: ‘Settled’ and ‘pre-settled’ status for EU nationals

In anticipation of the UK leaving the European Union (EU), the Home Office has introduced new rules (the ‘EU settlement scheme’) about granting leave to remain to EU nationals and their family members under UK immigration law. As of 21 January 2019, EU nationals and their family members already living in the UK before the 30 March 2019 have been able to apply for either ‘settled’ or ‘pre-settled’ status. If granted this status, the person has either indefinite leave to remain (‘settled’) or limited leave to remain (‘pre-settled’) under UK immigration law with no further conditions. This means someone with either status should have full access to all UK public services and benefits.

Until 30 March 2019, applications are made under a pilot scheme which requires access to an android smart phone to apply and a fee of £65. The applicant will also need a current passport or identity card from their state of origin or a UK biometric residence card. From 30 March 2019, application should be able to be made via any device with access to the internet and the fee abolished – those who have paid a fee during the pilot should have it refunded.

Settled status should be granted to those who have been living in the UK for 5 years. Unlike acquiring a permanent right to reside under EU law, there is no need to show that the applicant has had a right to reside during that period. Pre-settled status should be granted to those who have not yet been living in the UK for 5 years, again with no need to show a right to reside under EU law. In both cases the Home Office should normally use data already held by the government to confirm that the applicant has been living in the UK.

As either status provides leave to remain under UK immigration law with no conditions, there should be nothing to prevent someone with such a status claiming benefits under the same rules as UK nationals. Having either status provides a right to reside under UK law, so the only reason someone might fail the habitual residence test for universal credit, housing benefit, pension credit, income-based JSA, income-related ESA or income support is if they are found not to be habitually resident 'in fact', eg if they have only been in the UK for a short-time or can't show their 'settled intent'. However, experience so far suggests that the DWP do not necessarily accept this and have disallowed claims where the only right to reside the person has is settled or pre-settled status. If someone with settled or pre-settled status is refused benefit because it is decided they have no right to reside, they can appeal this decision following a mandatory reconsideration, but CPAG has also produced a template judicial review letter that could be used when to challenge decisions in urgent cases (see below).

Similar schemes apply for non-EU European Economic Area and Swiss nationals. Advisers should remember that as applications to these schemes are under UK immigration law, both advice and assistance with applications should only be provided by advisers either registered or exempt from registration with the Office of the Immigration Services Commissioner (OISC).

Home Office information

CPAG template letters

OISC guidance

​National insurance number problems: template letters

CPAG’s judicial review project is producing a series of template letters that can be used by advisers to challenge common benefit problems. Normally judicial review is only used if a decision can’t be appealed but it can also be used where a matter is particularly urgent such as when someone will be left destitute without the benefits they’re entitled to. This might include where someone is refused benefit because it is decided they don’t meet the national insurance number requirements even though they in fact either do or an exception applies – this is an issue which has been covered in previous ebulletins as it disproportionately affects BME communities. As such, CPAG has produced several letters that can be used in these circumstances depending on the person’s status in the UK.

The letters are worded in terms of the requirement in England to first go through a ‘pre-action protocol’ before proceeding with the actual judicial review application. While there is no such requirement in Scotland, there is no harm in first issuing a pre-action letter and if there is no satisfactory response then asking a solicitor to assist with a judicial review application. Scottish advisers can therefore adapt these templates to their needs.

CPAG template letters

Entitlement to child elements of UC

Several agencies working with refugees and their families have brought it to CPAG in Scotland’s attention that the DWP are refusing to pay amounts of universal credit (UC) for children until child benefit is awarded. It is not uncommon for HMRC to take up to 6 months to award child benefit where the claimant is from outside the UK. The DWP have said that child benefit entitlement is required before child elements of UC can be paid. This has resulted in no UC at all or an award not including amounts for the children until child benefit is awarded.

This DWP practice is wrong. Entitlement to UC child elements is not dependent on child benefit entitlement. In fact, both the Upper Tribunal and the DWP’s own guidance makes this clear. However, the DWP have said that they use child benefit entitlement to verify that the child lives with the claimant – but again this is wrong as child benefit can be awarded to someone who doesn’t live with a child. For more information about this issue see the recent article in CPAG’s Welfare Rights Bulletin (link below).

UC child elements and child benefit

Best Start Grants

Best Start Grants have now replaced Sure Start Maternity Grants in Scotland. In fact there are three grants that will be paid for young children: the pregnancy and baby payment (now available); the early learning payment (planned for summer 2019); the school age payment (planned for summer 2019). In addition ‘Best Start Foods’ are planned to replace Health Start Vouchers during 2019.

To get a Best Start Grant, the claimant usually needs to be getting a qualifying benefit such as universal credit, or someone might be getting amounts paid in their benefit for the claimant (ie a parent gets the UC child element for their 18 year old who has just had a baby because they are still at college). As such, the claimant or their parent/guardian will have had to pass the residence or immigration conditions for the qualifying benefit. However, under 18s don’t need to be getting any qualifying benefits to get a Best Start Grant. The Scottish Government have been in contact with the Home Office who have said that if under 18's get a Best Start Grant it should not be considered to have broken any no recourse to public funds condition, although this is yet to be confirmed in writing.

The Scottish Parliament, Social Security Committee Official Report, 21 February 2019

Best Start Grant information on CPAG website

Caselaw: genuine and sufficient link to ...?

To get personal independence payment, disability living allowance (DLA), attendance allowance or carer’s allowance, you usually have to meet the ‘past presence test’. This usually means that you must have been in Great Britain for a cumulative period of 2 years in the last 3 years. There are exceptions, including that which applies to those granted refugee status or humanitarian leave to remain.

For European Economic Area (EEA) nationals, there is a particularly exception if, amongst other things, you can show a genuine and sufficient link to the UK. If so the past presence test is not applied. This EEA nationals’ exception was established via a case decided by the European Court of Justice but when transferred into the UK social security legislation the exception read as a ‘genuine and sufficient link to the UK social security system’, eg a link through other benefit entitlement, potential benefit entitlement or payment of national insurance contributions by the claimant or a close member of the family.

CPAG took a test case to the Upper Tribunal where the judge held that the link required for this exception to apply was to the UK only, not specifically to the UK's social security system. The DWP appealed and in Kavanagh v Secretary of State and Pensions [2019] EWCA Civ 272, the Court of Appeal upheld the Upper Tribunal judge’s decision and dismissed the DWP’s appeal – the genuine and sufficient link need only be to the UK in general and not necessarily to the social security system. As such, the fact that the claimant’s mother (the claimant was a child born in Ireland applying for DLA) was a British national, her personal history and connections with the UK were enough on their own to show a genuine and sufficient link to the UK and so exempt the claimant from the past presence test.

CPAG test case summary


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