Advising EEA nationals now

Introduction

In Bulletin 279, the article ‘Ending of free movement: rights to reside and benefit’ described the effect of free movement rights ending on the benefit entitlements of EEA nationals and the new regulations which provide protections from these changes. This article looks at subsequent legal developments, in particular the Court of Appeal’s decision in R (Fratila and Tanase) v SSWP [2020] EWCA Civ 1741 (18 December 2020) and the government’s response to it, and provides a systematic approach to advising EEA nationals and their family members at this time.

Step-by-step approach

As explained in the article in Bulletin 279, although free movement rights have in general been ended in UK law, including in general revoking the EEA Regulations,1 from the end of the transition period, new regulations provide that, for those protected from these changes, the EEA Regulations continue to be available. This adds an additional consideration when advising many EEA nationals and their family members who want to claim a benefit that requires a right to reside.2 Given the number of factors that can determine whether a claimant has an effective (ie, a non-excluded) right to reside3 that will enable her/him to be entitled to benefit, it is helpful to work through the following questions.

Step 1: does the claimant have settled status or is s/he an Irish citizen?

If the claimant has been granted settled status (indefinite leave) under the European Union Settlement Scheme (EUSS), or s/he is an Irish citizen, s/he has a right to reside that satisfies all the benefits that require one. Note that if s/he has a partner and is claiming universal credit (UC), that partner will need her/his own right to reside for them to be paid UC as couple.

Step 2: is the claimant in a protected group who can still rely on free movement rights?

If the claimant is in a protected group that enables her/him to have a free movement right to reside under the EEA Regulations,1 then Step 3 below must be considered.

The protected groups are:4

A. someone with pre-settled status, protected until s/he no longer has pre-settled status;

B. someone who on 31 December 2020:

–had any right to reside under the EEA Regulations; and

–did not have leave under EUSS, protected until 30 June 2021 (and beyond, if by that date, s/he has applied to the EUSS and that application is pending – including any appeal);

C. someone who is a ‘relevant family member’5 (and who does not have leave under the EUSS) of a person who on 31 December 2020:

–had a right to reside under the EEA Regulations; and

–did not have leave under the EUSS, protected until 30 June 2021.

Although the majority of claimants who are in a protected group will have arrived before the end of 2020, a claimant arriving since then could also fit within any of the groups, so these groups should always be checked.

Note: if the claimant has come to join her/his family member who is in the UK with leave under the EUSS, s/he will need to obtain an EUSS family permit or an EUSS travel permit,6 which gives her/him time-limited leave to enter the UK. This type of leave has, since 31 December 2020, been added to the list of excluded residence rights for each of the benefits that require a right to reside.7However, although this type of leave will therefore not satisfy the right to reside requirement, the person may be in protected group C, and be able to have a right to reside under the EEA Regulations.

Step 3: does the claimant in a protected group currently have a free movement right?

If the claimant is in a protected group, the EEA Regulations can potentially apply to her/him. That means that s/he can be entitled to benefit if s/he has a free movement right to reside under the EEA Regulations at the time s/he needs to claim benefits, other than one which is excluded for the benefit s/he wants to claim –eg, other than as an EEA jobseeker if s/he is claiming UC. As noted in the article in Bulletin 279, if the claimant is in protected group B, the right to reside that s/he had on 31 December 2020 can be different from the one that enables the claimant to be entitled to benefit (see the example of Sofia in Bulletin 279, p4).

Step 4: is the claimant a person subject to immigration control but in an exempt group?

EEA nationals coming to the UK in 2021, other than on the basis of joining a family member already in the UK, will in most cases enter the UK with time-limited leave that is subject to a ‘no-recourse to public funds’ condition. As noted in the earlier article,8such an EEA national will therefore be defined as ‘a person subject to immigration control’ (a definition no longer limited to non-EEA nationals) and be excluded from most benefits on that basis, unless they are within one of the limited exempt groups. The exempt group that enables nationals of EEA states that have ratified either the European Convention on Social and Medical Assistance or the European Social Charter (all EEA states except Bulgaria, Liechtenstein, Lithuania, Romania or Slovenia) to claim means-tested benefits during a period of leave9has been amended so that it no longer applies to UC claims made on or after 1 January 2021.10However, those who come within this exempt group continue to be entitled to housing benefit and pension credit during their period of leave. Furthermore, the Home Office does not regard benefit received by virtue of being in this exempt group as ‘recourse to public funds’.11

Pre-settled status and benefit: Fratila 

If a claimant has pre-settled status, in all cases s/he should provide evidence of any non-excluded free movement right to reside which s/he has under the EEA Regulations. As noted above, simply having pre-settled status means the person is in a protected group that can continue to use the EEA Regulations. If the claimant does not have a non-excluded right to reside under the EEA Regulations, or if the evidence of it may not be accepted, then the claimant may be able to benefit from the ruling in Fratila.

In the decision in Fratila, the Court of Appeal held the addition of pre-settled to the list of excluded rights to reside was unlawful. The Order of the court granted a ‘stay’ until 25 February 2021 on the implementation of its ruling that those parts of the regulations which list pre-settled status as an excluded right to reside were to be deleted. That was to allow the government to attempt to seek permission to appeal against the court’s decision from the Supreme Court.

On 15 January 2021, the government made its application for permission to appeal to the Supreme Court. In an unprecedented move, the government has also made an application requesting the Supreme Court to grant a further ‘stay’ in the proceedings until the application is determined and, if permission is granted, until the appeal is finally decided by the Supreme Court. If granted, such a stay would in effect completely nullify the Court of Appeal’s decision, at least until the further appeal is finally decided.

In all other benefit cases, while a government appeal was ongoing (the lead case), no stay has been granted by the courts and instead the government has simply relied upon the rule in section 25 of the Social Security Act 1998 which gives decision makers a power to hold giving decisions in lookalike cases until the lead case is resolved.

CPAG, on behalf of the claimants, has argued in response that no further stay should be granted. In particular, it has been argued that:

1. the government has not put forward any evidence as to why a further stay is necessary;
2. a stay would prevent the DWP, in all cases, including those cases raising issues of particular hardship, from ever awarding benefit, and that would mean this was the one group of those with limited leave to remain who were shut out of the benefit system (those who are excluded because their leave has a ‘no recourse to public funds’ condition can apply to the Home Office to have that exclusion lifted in cases of hardship and thereby access benefits – 80 per cent of such applications are granted; and
3. parliament has legislated for how social security adjudication should work while test-case litigation is ongoing. That scheme represents a careful balance allowing a decision maker to apply a judgment that assists claimants while it is still subject to challenge in a higher court in appropriate cases – the courts should not interfere with that careful balance in this case.

CPAG has asked the Supreme Court for an urgent hearing on this aspect of the case should it be minded not to dismiss the application for a stay on the papers.

Provided no further stay is granted, then from 26 February until any further appeal is dealt with, decision makers will have to rely on section 25 in order to delay making decisions or (which would seem less likely) apply the judgment of the Court of Appeal and award benefit to those with pre-settled status.

An individual claimant whose case a decision maker proposes to, or has, stockpiled to await the outcome of a Supreme Court appeal would be able to ask that her/his case not be stayed. DWP guidance suggests decisions should not be stockpiled where that would cause hardship (Advice for Decision Making, para A6041). Arguably, the DWP would have a duty to inform claimants whose cases are stockpiled that benefit could be paid in exceptional circumstances if hardship would otherwise result, and explain how a claimant should raise this issue if s/he thought it applied to her/him. Failure to do this or to take account of a claimant’s circumstances in full when deciding whether to stockpile a case could be challenged in the first instance via the pre-action protocol for judicial review (see CPAG’s Judicial Review project).

Note: although the court’s decision was given only in relation to means-tested benefits, the argument applies equally to child benefit child tax credit and, in England and Wales, council tax reduction (in Scotland, the council tax reduction regulations do not list pre-settled status as an excluded right to reside).