Rights to benefits and tax credits for European nationals

Introduction and definitions

Overview

Those with protected rights

Rights of those who make late EUSS applications

What being in a protected group means

Those without protected rights

Family members joining European nationals after 31 December 2020

Rights under the EUSS

Where to get advice and further information

Introduction and definitions

Below is basic information about the rights of European Economic Area (EEA) nationals and their family members to access benefits and following the UK’s exit from the European Union (EU).  For where to get more detailed information on these rights and the eligibility conditions for individual benefits, see Where to get advice and further information.

'European national'

Here, ‘European national’ is used to refer to EEA nationals. The EEA is made up of the 27 EU states, plus Iceland, Liechtenstein and Norway. Under separate agreements, Swiss nationals have most of the same rights as EEA nationals.

The EU member states are:

Austria, Belgium, Bulgaria, Croatia, Cyprus, Czechia, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Republic of Ireland, Romania, Slovakia, Slovenia, Spain and Sweden.

'Family member'

‘Family member’ for the purposes of the residence rights of European nationals usually means your:

• spouse or civil partner; or
• child, grandchild, etc., (or your spouse or civil partner’s) under the age of 21; or
• dependent children, grandchildren, etc., over 21 or dependent parents, grandparents, etc. (or those of your spouse or civil partner).

In some circumstances, your ‘extended family members’ can be treated the same as the family members above, but extra conditions apply. These can include unmarried ‘durable partners’, other dependent family members or those requiring your care. If someone is not a family member but might be an extended family member, get further advice – see Where to get advice and further information below.

Family members may be European nationals themselves and if so, may have their own individual rights under the EEA rules as well.  Non-European national family members may only have a right to reside via you as a European national. 

'EEA rules' and 'right to reside'

Here ‘EEA rules’ refer to the residence rights (‘right to reside’) all European nationals and their families had in the UK up to 11pm 31 December 2020 (ie the end of the ‘transition period’) under EU law. The EEA rules were revoked from the end of the transition period but if you remain in a ‘protected group’ (see below) you can still use them. If in a protected group, you may have residence rights under the EEA rules if you are:

• within the initial 3 months in another state; or
• a jobseeker; or
• a worker or self-employed person; or
• someone who has stopped working but who ‘retains’ worker or self-employed status; or
• a self-sufficient person; or
• a self-sufficient student; or
• someone who has acquired a permanent right of residence.

If you have rights because you fall into one of these groups, your family members have the same rights if they are also in a protected group. 

In addition to the above types of right to reside, you can have a ‘derivative’ right to reside under EU law. These derivative rights to reside were established via EU caselaw. They include a right to reside for the children of EEA workers while they complete their education and a right to reside for the primary carer of such children. Working out who has these derivative rights can be complex and is usually only necessary if another ‘qualifying’ right to reside for the benefit you are claiming cannot be established. See Where to get advice and further information if you need to rely upon a derivative right to reside.

Overview

After the UK left the EU on 31 January 2020, a ‘transition period’ until 11pm on 31 December 2020 meant the rights of European nationals and their family members mostly remained the same. During the transition period, European nationals and their family members could apply to the EU Settlement Scheme (‘EUSS’) to protect their existing rights after 31 December 2020. At the end of the transition period, a further 6 months ‘grace period’ applied ending on 30 June 2021 to allow those who had not already applied to the EUSS to do so. If you are eligible for the EUSS but did not apply before the end of the grace period, you can still make a ‘late’ application if the Home Office considers it reasonable to allow one. Family members joining those with status under the EUSS are also eligible to apply to the EUSS.

If you have made a successful application to the EUSS, your rights are protected. If you have ‘settled status’ under the EUSS, you have full access to all benefits and other services in the same way as British nationals. If you have ‘pre-settled status’ under the EUSS, you have no general restrictions on your rights to access services in the UK but may be excluded from accessing some benefits and other forms of help unless you also have a ‘qualifying right to reside’ under the EEA rules.

The benefits requiring a qualifying right to reside are:

• universal credit;
• pension credit;
• housing benefit (HB);
• income-based jobseeker’s allowance (JSA);
• income-related employment and support allowance (ESA);
• income support;
• child tax credit (CTC);
• child benefit

Note that it is not possible to make new claims for income-based JSA, income-related ESA, income support or CTC, and new HB claims can only be made if you are over state pension age or in other limited circumstances. However, if you have an existing awards of these benefits you usually need to have a continuing right to reside to keep getting them.

Other benefits may have other residence and presence rules but do not require you to have a qualifying right to reside. Getting some benefits may require you to be 'passported' through entitlement to one of the benefits listed above first.

If you have applied to the EUSS but have not yet had a decision or are appealing a refusal of status, your rights are also protected in the same way as those with pre-settled status.

If you are a European national, but you and your family members are not eligible for the EUSS, you have the same rights as non-EEA nationals, ie you need to obtain leave to enter and remain in the UK and if it is granted that may include restrictions on your right to work, access services and public funds. If you are eligible for the EUSS but have not yet applied to it, you are excluded from most benefits as a ‘person subject to immigration control’ until an application to the EUSS is accepted.

The rest of the information below provides more details about the above rights and information about where to get further advice and find out more.

Those with protected rights

From 1 July 2021, for you as a European national and your family members to have 'protected rights', you usually must have ‘pre-settled status’ under the EU Settlement Scheme (EUSS), ie limited leave to remain. This is referred to below as being in a ‘protected group’.

Under domestic UK legislation, if you made an application to the EUSS before 1 July 2021 and it has not yet been decided or it is being appealed, you are in a protected group until it is decided. However, while the deadline for most to apply to the EUSS was 30 June 2021, ‘late’ applications can still be accepted. 

If you have made a late application to the EUSS and it has been accepted by the Home Office after the 30 June 2021 deadline, your rights are protected under the Withdrawal Agreements between the UK, the EU and the non-EU EEA states, rather than domestic legislation. The Home Office usually issues a ‘certificate of acceptance’ if they accept such an application. The protection continues until the application is decided or while a refusal is being appealed. This covers you if you are a European national, or if you are the family member of a European national, and you were in the UK before the end of the transition period (ie before 11pm on 31 December 2020) and you had an EEA rules right to reside at any point before 31 December 2020 (even if it had ended by that date). There is further information below about the rights of those making ‘late’ applications – see Rights of those who have made late EUSS applications below.

Therefore, the main ‘protected groups’ now are if you:

• have pre-settled status under the EUSS; or
• had an existing right to reside under the EEA rules on 31 December 2020 and applied to the EUSS before 1 July 2021 but you have not yet had a decision on that application or are appealing a refusal; or
• have had a late application to the EUSS accepted but not yet decided, or are appealing a refusal, usually evidenced by a ‘certificate of acceptance’ issued by the Home Office.

If you may be eligible for the EUSS has not yet made an application or have been waiting for a decision for a long time, you should get urgent advice – see Where to get advice and further information below.

As long as you remain in one of the groups covered by the above bullet points, you are not a ‘person subject to immigration control’ and are not subject to any restrictions on accessing public funds, and so cannot be excluded from claiming benefits for that reason. However, the rules for some benefits may still exclude you if you only have pre-settled status, unless they also have a right to reside under the EEA rules. You may also be protected in other limited circumstances or have rights under different rules, so if you do not fall into one of the above groups, seek further advice and information – see Where to get advice and further information below.

See Rights under the EUSS below for more information on the rights of those who in a protected group.

Rights of those who make late EUSS applications

If you make a late application to the EUSS which is accepted by the Home Office, you are protected under different rules to those who applied before the end the of the ‘grace period’ on 30 June 2021. Your rights protected under the Withdrawal Agreements between the UK, the EU and the non-EU EEA states, rather than UK domestic law. 

Under the Withdrawal Agreements, your rights are protected pending the outcome of an application to the EUSS, provided you had a right to reside under the EEA rules at any point before the end of the transition period (ie 11pm 31 December 2020). This protection continues while appealing a refusal of leave under the EUSS. The right to reside you had could be any under the EEA rules, including an ‘initial’ 3 month right to reside that applied to all EEA nationals, or a jobseeker, worker, family member, etc. Unlike the domestic ‘grace period’ rules, there is no need to have had such a right to reside at the end of the transition period.

This means if you have been allowed to make a late application to the EUSS by the Home Office, your rights covered by the Withdrawal Agreements are protected pending a decision on it. This includes rights of residence (ie rights to reside – those covered by the EEA rules). Therefore, as long as you currently have a qualifying right to reside, you should have access to any benefits (and other services) that require one. There is no need to have had a right to reside on 31 December 2020 to have this protection. Note that the above could also apply if you made your application before 1 July 2021 (ie within the grace period) if you have not yet had that application decided or if appealing a decision on such an application.

The difference sources of protected rights (ie UK domestic legislation or the Withdrawal Agreements) may cause confusion. For example, some official guidance was itself based on DWP guidance issued to housing benefit (HB) departments, and that seems to have confused the rights of those who are covered by the Withdrawal Agreements only (eg those who have late EUSS applications accepted) with those covered by UK domestic law (eg who applied to the EUSS before 1 July 2021). This is different to other DWP guidance issued to universal credit and legacy benefit decision makers, and also Home Office guidance. As there is no significant difference between the relevant rules for these different benefits in this respect, there seems no reason for this difference and so can only be accounted for by there being a mistake made in the HB guidance. For further advice about your rights if you have made a late EUSS application see Where to get advice and further information below.

What being in a protected group means

Being in a protected group usually means that the same EEA rules apply to you as applied to European nationals before 1 January 2021. So you can still have a right to reside under the EEA rules (which does not have to be the same one you had on 31 December 2020 or before) and be entitled to means-tested benefits like universal credit or housing benefit, or benefits for children like child benefit. Also, if you are in a protected group you should not be excluded from claiming other benefits that have no right to reside conditions, such as adult disability payment or carer’s allowance, as long as you meet all the other entitlement conditions for those benefits. 

Example:

Rosa is Portuguese and is married to Asif who is Pakistani. They came to the UK looking for work in November 2020 with their two school aged children and were initially living on their savings. Rosa got a job working 4 days a week in May 2021. They applied to the EUSS in the last week of June 2021 but have no decision yet. They are getting child benefit but want to know if they can also apply for universal credit as their savings are running out and Rosa’s wages are not enough to live on?

As they had both an ‘initial’ 3 month right to reside and jobseeker right to reside as a European national and family members under the EEA rules on 31 December 2020, they had protected rights until 1 July 2021. Rosa now has a right to reside as a worker and Asif a right to reside as her family member. As they are yet to get a decision on their EUSS applications, they remain in a protected group. As such, they should be able to claim universal credit now but should also get advice about why their EUSS applications are taking so long.

Those without protected rights

If you are a European national and you and your family members only came to the UK for the first time after 31 December 2020, you are usually treated the same as non-EEA nationals. That means you must apply for leave to enter and remain in the UK which if granted will usually be subject to restrictions on accessing services, working and public funds. Normally, you will not be eligible to apply to the EUSS and so cannot benefit from protected rights.

If you or your family members were in the UK on 31 December 2020 but do not yet have a status under the EUSS, or a pending application accepted, you do not have protected rights and may no longer have the right to be in the UK under UK immigration law. However, as you were in the UK before the end of the transition period, you may still be able to apply to the EUSS and if successful will be protected. As the normal deadline to apply to the EUSS, 30 June 2021, has now passed, you should seek urgent immigration advice – see Where to get advice and further information below.

Example:

Primoz is Slovenian, single and came to the UK to work four and a half years ago but stopped to care for his terminally ill father who came to live with him in November 2020. His father died a month ago and Primoz intends to find work again but has not yet applied to the EUSS. He should get urgent advice and apply to the EUSS for pre-settled status as soon as possible to try and protect his rights in the UK.

Family members joining European nationals after 31 December 2020

If you continue to have rights as described above because you have pre-settled status or settled status under the EUSS, you can be joined by family members who were not in the UK at the end of the transition period (31 December 2020). Your family members will need to get a EUSS family permit first which will then allow them to come to the UK. Once in the UK, your family members have three months in which to apply to the EUSS and once an application is accepted will have protected rights as above. However, until they apply for status under the EUSS, your family members with a EUSS family permit are usually excluded from getting any benefits which require a right to reside themselves, although you may be able to get some benefits for them.

Rights under the EUSS

The EUSS provides status under UK immigration law to European nationals and their family members who, usually, were in the UK before 1 January 2021. If you need help applying to the EUSS or with questions about whether your leave under the EUSS is still valid, you need to get advice from an immigration adviser who is registered with the Office of the Immigration Services Commissioner (OISC), or someone such as a specialist immigration solicitor or a Citizens Advice Bureau service which is exempt from OISC registration. It is an offence for anyone who is not registered with or exempt from registration with the OISC to provide immigration advice or assist with immigration applications.

Status under the EUSS is not automatic and each individual who might qualify, including children, should apply and will usually need to have done so before 1 July 2021. However, late applications may still be accepted by the Home Office. If you are granted status under the EUSS, this only gives you rights as an individual and family members do not automatically ‘derive’ rights from you. Your family members who were not in the UK before 1 January 2021 but are joining you may also be able to apply to the EUSS (see Family members joining European nationals after 31 December 2020 above). 

If you, or a family member, are granted status under the EUSS, it will be either ‘pre-settled status’ if you living in the UK for less than 5 years (or if you cannot prove they have been living in the UK for that long) or ‘settled status’ if you have been living in the UK for 5 years or more. 

If granted pre-settled status, it is advisable to apply again for settled status once you have been living in the UK for 5 years, although you may now have your status converted automatically by the Home Office to settled status. In some cases, settled status can be granted if you have been living in the UK for less than 5 years, such as if you had to permanently stop working due to an industrial accident. If granted either status, it is not subject to any restrictions on access to public funds, work, education, etc..

Settled status

If you have settled status under the EUSS, you are not in a ‘protected group’. You do not need protected rights if you have settled status as it gives you a qualifying right to reside under UK law for any benefits that need it (such as universal credit or child benefit), and full access to all other benefits under the same rules as British nationals. However, as this means that you cannot now have a right to reside under the EEA Rules, your family members cannot derive rights from you, ie a right to reside as your family member. But in practice, DWP appear to treat those with settled status as if they can still have rights to reside under the EEA Rules, and so their family members can derive rights from them as long as the family member is themselves in a protected group, ie has pre-settled status.

If family members with pre-settled status are refused benefits because they cannot derive a right to reside from you when you have settled status, seek advice – see Where to get advice and further information below.

Example:

Mariam is Polish, has worked in the UK for many years and has settled status. Her mother Anya’s health has deteriorated, and Mariam needs to care for her. Therefore, Anya applies for and is granted a EUSS family permit and joins Mariam in the UK. As soon as Anya arrives, Mariam helps her apply for pre-settled status which is granted.

Anya is now in a protected group and can have a right to reside under the EEA rules, including as a dependent family member of a European national with a permanent right to reside or right to reside as a worker. If so, she has a qualifying right to reside and can claim universal credit. Mariam does not technically have a right to reside under the EEA rules as she has settled status rather than pre-settled status and is not in a protected group. However, as DWP treat those with settled status as if they were in a protected group, they treat Mariam as having a qualifying right to reside and so Anya as her dependent family member.

Pre-settled status

If you have pre-settled status, you are in a protected group and so can still have a right to reside under the EEA rules for any benefits that require one. Only means-tested benefits, child benefit and child tax credit require you to have a right to reside. Other benefits, such as adult disability payment, carer’s allowance, maternity allowance or contributions-based jobseeker’s allowance, have no requirement that the claimant have a right to reside, although they may have other residence or immigration status related conditions – for example, if you have pre-settled status you can claim carer’s allowance as long as you meet the caring and earnings rules but also the two-year ‘past presence test’. As long as you have pre-settled status, your rights are protected.

Means-tested benefits

For means-tested benefits, including universal credit (UC), pension credit (PC) and housing benefit (HB), you must pass the ‘habitual residence test’, which includes having a qualifying right to reside. If you do not, you are treated as not being in Great Britain and so not entitled. UC is claimed jointly by couples, whereas most other means-tested benefits are claimed only by one member of a couple who may then be entitled to extra amounts for their partner. 

For UC, if you are part of a couple living together and either you or your partner fails the habitual residence test but the other passes, UC is paid as if it was awarded to a single person. Such an award still takes into account the other partner’s income and capital. Therefore, even if you think you or your partner might not pass the habitual residence test for UC, you can still make a joint claim for UC but it will be treated as a single claim if one of you fails the habitual residence test. Note that if one of you is over state pension age and the other under is not (a ‘mixed age couple’), special rules apply if the younger partner fails the habitual residence test that allows the older partner to claim PC and HB instead.

For other means-tested benefits, either member of a couple (ie the one most likely to be eligible) can be the ‘lead’ claimant and amounts should still be included for the partner regardless of whether they would pass the habitual residence test or not (unless, except for HB, they are someone subject a no recourse to public funds condition or otherwise fall within the definition of a ‘person subject to immigration control’). 

To pass the habitual residence test for means-tested benefits, you must have a qualifying right to reside. The rules for UC, PC and HB exclude you from passing the habitual residence test if your only right to reside in the UK is:

• pre-settled status or a EUSS family permit; or
• as an EEA jobseeker or the family member of an EEA jobseeker; or
• an ‘initial’ right to reside; or
• as someone who has a derivative right to reside as the primary carer of a British citizen (‘Zambrano carer’). 

Any other right to reside under the EEA rules you have as someone with protected rights - eg as an EEA worker, retained self-employed status, permanent right to reside, family member of an EEA national with retained worker status or derivative right to reside as the primary carer of the child in education of an EEA worker - can allow you to pass the habitual residence test. 

Note that if the only EEA rules right to reside you have is as a self-sufficient person or self-sufficient student, or family member of either, while not excluded as a right to reside in the benefit rules, in practice it is often difficult to make a successful claim due to the need to demonstrate self-sufficiency. Seek advice (see Where to get advice and further information below) in such circumstances. Also note that you can have more than one EEA rules right to reside at any one time and can rely on whichever you need to - for example, if you are the family member of an EEA jobseeker you may also have retained EEA worker status in your own right, and so can rely on the latter to pass the habitual residence test for UC even though the former is excluded.

Pre-settled status and destitution

CPAG challenged the exclusion from UC of those with only pre-settled status and no other qualifying right to reside in a number of cases. 

A challenge to the legality of simply excluding those with only pre-settled status from UC was ultimately unsuccessful at the Supreme Court. However, a subsequent challenge has been successful in arguing that many of those with pre-settled status are still covered by the EU Charter of Fundamental Rights and as such should be protected from destitution if that is likely to mean the claimant or their family cannot live in dignified conditions. So if you only have pre-settled status and are at risk of destitution if denied UC, you may be able to secure entitlement. You should be prepared to provide detailed evidence showing why you would be left at risk of destitution and argue that this means the DWP or a tribunal must decide the case urgently. CPAG has published notes for advisers and template letters to assist those making these arguments available from CPAG’s website - see Destitute EU nationals with PSS can rely on EU Charter of Fundamental Rights to obtain Universal Credit.

Benefits for children

For benefits for children, eg child benefit, there is no habitual residence test but there is still a requirement for the claimant (not the child) to have a qualifying right to reside. If you have no qualifying right to reside, you are treated as not present in the UK for the purpose of these benefits and so not entitled. If your only right to reside is your pre-settled status or EUSS family permit these are excluded rights to reside. But if you have protected rights and so can still have a right to reside under the EEA rules, any other such current right to reside will satisfy the requirement for these benefits, other than if it is only a derivative right as the primary carer of a British citizen (sometimes referred to as ‘Zambrano carers’, after the case that decided there was such a right to reside under EU law). 

Social security co-ordination rules

If you or your family members have either pre-settled or settled status under the EUSS, you may still be covered by the EU Social Security Co-ordination Rules that applied before the end of the transition period on 31 December 2020. 

These rules include allowing periods of residence, employment and contributions equivalent to national insurance paid in EEA states to count towards benefit entitlement in the UK. So for example, if you paid the equivalent of national insurance in a EU state it should count towards calculating your state pension in the UK. 

In general, these rules will continue to apply to you for as long as you are covered by the Withdrawal Agreements but that protection may end if that coverage is ‘interrupted’. What counts as an interruption is not defined, and its interpretation is likely to be decided by future court cases but may include circumstance such as where you no longer have a right to reside under the EEA rules. Even if no longer covered fully, some 'partial coverage' can continue to apply to protect rights you previously acquired.

If you are not or no longer covered by these rules, less generous new co-ordination rules with the EU, EEA, and Ireland or reciprocal agreements with individual states may apply instead. If you have only come to the UK after 31 December 2020 you are also likely to be covered by these less generous rules.

Social security co-ordination rules are a complicated area to advise on but see Where to get advice and further information  below for further advice and information.

Where to get advice and further information 

Independent benefits advice is available from agencies such as a local Citizen Advice Bureau or law centre. Housing association tenants often have access to their own support staff and specialist welfare rights officers who can help. Some local authorities may have their own welfare rights officers who can help. You can also search the Advice Local website at advicelocal.uk/ for other agencies who can offer advice in your area.

For agencies who can help with non-benefits advice, including housing or immigration matters search Advice Local (see above). The Office of the Immigration Services Commissioner provides a database of qualified immigration advisers who are registered: portal.oisc.gov.uk/s/adviser-finder. 

If you are an adviser and need help with any benefits issues affecting those you support, you can contact CPAG. 

Scottish based advisers can call 0141 552 0552 Monday to Thursday 10am to 4pm and Fridays 10am to 12 midday, or email [email protected]. 

Advisers in England, Wales and Northern Ireland can call 020 7812 5231 Monday to Friday between 10am and 12 midday and 2pm and 4pm, or (if about UC, child benefit or tax credits) email [email protected]. 

If your questions are about your own benefit entitlement, we cannot help you but see above for the other agencies who may be able to.

For more detailed information about benefits and how immigration and residence conditions affect entitlement, see CPAG’s Welfare Benefits and Tax Credits Handbook and Benefits for Migrants Handbook. For other CPAG resources about benefits for migrants, see the Benefits for Migrants topic page.