Advising Migrant Groups eBulletin - February 2021

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In this issue:

Changes to rights of EEA nationals and their families

The ‘transition period’ during which the rights of EEA nationals and their families basically remained the same following the UK leaving the EU, ended at 11pm on 31 December 2020. EEA nationals wanting to come to the UK now will usually have to apply for leave to enter and remain just like non-EEA nationals and be subject to the same type of restrictions on accessing benefits, working, etc.

Those with protected rights

The situation for EEA nationals and their family members is now complicated but basically many of those who were already in the UK at the end of the transition period have their rights protected. In general, these are:

  • Anyone with ‘pre-settled’ status under the EU Settlement Scheme (EUSS);
  • Those who had an existing right to reside under the EEA rules on 31 December 2020 but who have not yet applied to the EUSS, and their family members, until 30 June 2021

As long as someone remains in one of the above groups, they should not count as a ‘person subject to immigration control’ and so cannot be excluded from claiming benefits for that reason.

People with settled status under the EUSS do not need their rights protected as their status gives them a qualifying right to reside 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.

Those in the second bullet point above have until 30 June 2021 (what is called the end of the ‘Grace period’) to make their application to the EUSS. Until then, they can still have the same rights as before the end of the transition period. That means if they still meet the same rules, they have a right to reside (which doesn’t have to be the same one as on 31 December 2020) and may be able to claim means-tested benefits like universal credit or housing benefit. The same should apply to their family members. It is very important that people in this group apply to the EUSS before 1 July 2021, otherwise they will lose their protection.

Those with pre-settled status are also protected in the same way as those who had a right to reside under the EEA rules on 31 December 2020, so for example if they also have a right to reside as a worker or retain worker status they can claim universal credit. The difference is that as long as they have pre-settled status their rights are protected, so even after the end of the ‘Grace period’ on 30 June 2021. Before someone’s pre-settled status comes to an end, they need to apply for settled status as it isn’t granted automatically. However, see item on pre-settled status below for why such people should have the same rights as those with settled status.

Those without protected rights

EEA nationals and their family members in the UK on 31 December 2020 who did not have an existing right to reside under the EEA rules on that date, and who don’t yet have a status under the EUSS, do not have protected rights and are technically no longer in the UK legally (but it is understood that the Home Office will not take any steps to remove them as yet). However, as they were in the UK before the end of the transition period, they can still apply to the EUSS and if successful will then be protected. They need to apply to the EUSS before 1 July 2021.

Family members joining EEA nationals after 31 December 2020

EEA nationals who continue to have rights as described above either because they are in a protected group or have settled status under the EUSS, can be joined by family members who weren’t in the UK at the end of the transition period. The family members will need to get a EUSS family or travel permit first which will then allow them to come to the UK. However, these permits are granted with the condition that the family members have no recourse to public funds and no right to work and as such they will usually be excluded from most benefits, although there may be exceptions that apply. Once in the UK, the family members have three months in which to apply to the EUSS and if granted pre-settled status will then be covered by the first bullet point above and so able to have rights under the EEA rules.

Co-ordination rules

EEA nationals and their family members who had a right to reside on 31 December 2020 under either the EEA rules or EUSS may still be covered by the same EU Social Security Co-ordination rules as before. These rules include allowing periods of residence, employment and national insurance paid in EEA states to count towards benefit entitlement in the UK. However, if they have not continuously had a right to reside since, they may no longer be covered by these rules but by less generous new co-ordination rules or reciprocal agreements with individual states. EEA nationals and family members only coming to the UK after 31 December 2020 are also likely to be covered by these less generous rules.

Social security co-ordination rules are a complicated area to advise on, so advisers should contact CPAG in Scotland’s advice line for help navigating them and refer to the new editions of the Welfare Benefits and Tax Credits Handbook and/or Benefits for Migrants Handbook when available.

For more information:

Pre-settled status

EEA nationals and their family members in the UK before 1 January 2021 have been able to apply to the EU Settlement Scheme (EUSS) since early 2019 to secure their immigration status in the UK following Brexit. Those who have not yet lived in the UK for 5 years, or who have not been able to prove that they have, are granted ‘pre-settled status’ for 5 years. Having either pre-settled or settled status gives someone a right to reside under UK immigration law rather than EU law, and neither status has any conditions attached to it regarding rights to access benefits, services or work.

However, in May 2019, the government amended all the benefits and tax credit rules about right to reside so as to exclude those whose only right to reside in the UK is as someone with pre-settled status. CPAG challenged these amendments on the basis that they discriminate against those who otherwise have no conditions (other than a time limit) attached to their leave.

Having lost at the High Court, CPAG was granted permission to appeal to the Court of Appeal in England and that appeal was successful. The Court ordered that the amending regulations be struck down as it held that they are unlawful. That order was stayed until 26 February 2021 and the DWP have now applied for permission to appeal to the Supreme Court.

For now, the Court of Appeal’s decision is the leading authority on the rights of those with pre-settled status only. As such, anyone with only pre-settled status should have a qualifying right to reside for any benefit or tax credit that requires one, and so should be able to make new claims on that basis or challenge previous refusals. However, as the DWP is appealing they are unlikely to act on the judgment unless that appeal is unsuccessful, and may ‘stockpile’ or ‘sist’ new claims or challenges respectively pending a decision from the Supreme Court. Therefore, for the time being anyone with pre-settled status wanting to make a new claim or challenge a refusal will need to show that they also have another qualifying right to reside to ensure it is successful.

For more information on the Court of Appeals decision, links to the text to the judgment, template letters to challenge decisions and further advice see CPAG's test cases page.

Refugee rights

CPAG has been involved with a number of cases over the last year concerning the rights to benefits once someone is found to have refugee status.

Backdating of child benefits to date of asylum application

In one case that went to the Upper Tribunal, backdating of child benefit to the date that the asylum application was made had been refused. The reason for the refusal was that the child benefit claimant was the partner of the ‘lead’ asylum claimant and not the asylum claimant themselves, even though they were included in the application. HMRC had said that the rules only allow full backdating for the asylum claimant, not someone included in that claim. As such, to get full backdating, the lead asylum applicant would have had to make the child benefit claim (and have done it within 3 months of refugee status being confirmed). This interpretation of the rules would particularly adversely affect women found to have refugee status, who are often included in their partner’s asylum application but whose relationship with that partner may have since broken down. CPAG assisted the adviser appeal.

The Upper Tribunal found that HMRC were wrong and that the child benefit rules should not be interpreted in this way. While the rules say that backdating of child benefit should be to the date of asylum application for ‘a person who has claimed asylum’, the judge held that means not only the lead claimant but anyone included in that application. It was acknowledged that it is common practice that family members are included in a single asylum application and not expected to make individual applications themselves.

If advisers come across similar cases, the Upper Tribunal’s decision has not been challenged by HMRC and as such is binding. However, the decision is not published on the Upper Tribunal’s website but can be referred to under its neutral citation number CSF/33/2020 and copies can be obtained by contacting the Upper Tribunal directly.

Backdating child tax credits

Similarly to the child benefit backdating rules for those with refugee status, there are rules that allow claims for child tax credit (CTC) to be backdated to the date asylum was first applied for. However, new claims for CTC can no longer be made in nearly any circumstance and universal credit (UC) must be claimed instead. UC does not have any rule that allows backdated claims to be made once refugee status is confirmed and so this may mean a financial loss compared to CTC.

While a new CTC claim might not be allowed now, it might have been if made during the period while waiting for a decision on an asylum application. This would be the case if the area in which the person lives or was living was not yet UC ‘full service’ at the time or the person fell into a group who could not claim UC. CPAG now has a test case arguing that this should mean that a claim for CTC should be allowed for such a period and that the regulations that otherwise stop new CTC claims being made in fact contain an exception that allows claims for these periods.

If you have clients in a similar position, see CPAG’s test case page for updates on the progress of our case and for information on what action to take now: Retrospective Child Tax Credits For Newly Recognised Refugees.

Repeat asylum applications

CPAG has raised questions with HMRC about guidance that states that a child benefit claim can only be backdated to a refugee’s ‘first successful asylum claim’. It has been pointed out that existing caselaw (FK v HMRC [2009] UKUT 134 (AAC)) confirms that that does not necessarily mean the latest asylum application, provided that the events that the refugee status depends on pre-date earlier applications.

HMRC have said that they are looking at amending their guidance to better reflect the caselaw. CPAG is aware of current ongoing challenges to child benefit decisions that may have been made by HMRC based on the existing ambiguous guidance. If advisers come across similar cases, they should contact CPAG in Scotland using our advice line for updates and tactics on challenging decisions.

Universal credit and family reunion

CPAG has recently come across a number of cases concerning refugees who are joined by family members under ‘family reunion’ rules but then have problems adding those family members to their universal credit (UC) claims. This seems to be a particular problem where children or young people who the UC child element should be paid for join the refugee. It seems that UC are asking for confirmation of child benefit entitlement and/or excessive or irrelevant information, while the only requirement, as confirmed by the Upper Tribunal, is that the child or young person ‘normally lives’ with the claimant.

CPAG has assisted with getting several of these cases quickly resolved but if you have similar cases please contact us via the CPAG in Scotland advice line or our Early Warning System. The more evidence we gather that this is the systematic problem, the better are our chances of getting the DWP to review their practice, training and guidance so that these problems stop.

CPAG in Scotland advice line for advisers

CPAG in Scotland Early Warning System

Welfare Rights Bulletin article on UC Child Element and Child Benefit