Ending of free movement: rights to reside and benefits

Introduction

The UK government will end European free movement rights within UK law when the post-Brexit transition period ends at 11pm on 31 December 2020. At the time of writing, the legislation to achieve this, the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020, had just been passed.1

This article looks at the main changes to rights to reside and benefit entitlement that will result from this ending of free movement, for EEA nationals, their family members and primary carers, living in the UK.2

The status quo

European free movement residence rights currently enable many EEA and some non-EEA nationals to be entitled to benefits that require a right to reside.3 These rights also enable some non-EEA nationals to be entitled to benefits that they would otherwise be excluded from if, without the free movement right, they would be defined as a ‘person subject to immigration control’ (the definition is in the last section of this article).

European free movement residence rights currently exist alongside other parts of UK immigration law, of particular relevance being the EU Settlement Scheme (EUSS). Under the EUSS an EEA national resident in the UK before the end of the transition period, and her/his family members, can obtain settled status (indefinite leave), in broad terms following five years’ residence in the UK, or pre-settled status (limited leave for five years) if residence in the UK is less than five years.

While settled status satisfies the right to reside requirement for all benefits that have it, pre-settled status is listed as an excluded right to reside for each of these benefits. At the time of writing, a challenge to this exclusion had just been heard in the Court of Appeal and judgement was pending.4 The exclusion of pre-settled status as a qualifying right to reside means that anyone with this status needs another non-excluded right to reside to be entitled to the benefit, and that generally means a free movement residence right.

Temporary protection during grace period

Although, as noted above, to be eligible for leave under the EUSS the applicant must be an EEA national who began residing in the UK before 31 December 2020, or be the family member of such an EEA national, the deadline for applications is six months later on 30 June 2021.5 Consequently, the ending of free movement rights from 11 pm on 31 December 2020 would mean, if there were no further provision made, that those who are still within the deadline to apply for leave, but have not yet done so, would be left without a lawful basis for their residence in the UK.

To address this, and other legal gaps, regulations (the ‘Grace Period Regulations’) provide ‘temporary protection’ during this ‘grace period’ from 1 January 2021 to 30 June 2021.6

These protections take effect at 11 pm on 31 December when the EEA Regulations7 will be revoked, and provide that for those who are protected, the EEA Regulations continue to have effect (subject to certain modifications8 for the purpose (among others) of entitlements to social security benefits.

Who is protected by the ‘Grace Period Regulations’

This temporary protection is provided if someone is a ‘relevant person’ which is defined as someone who does not have leave under the EUSS and:9

• was ‘lawfully resident by virtue of the EEA Regulations’ on 31 December 2020; or
• is the ‘relevant family member’ of a person who on 31 December 2020:
  • did not have leave under the EUSS; and
  • was ‘lawfully resident by virtue of the EEA Regs’.

‘Lawfully resident by virtue of the EEA Regulations’ broadly means has a right to reside under the EEA Regulations and, importantly, does not require someone to have been present in the UK on 31 December 2020. Indeed, the person is treated as resident in the UK during absences that would be ignored in the calculation of permanent residence (eg, up to six months in any year) or if s/he had a permanent right to reside and had been absent for less than five years on 31 December.10

A ‘relevant family member’ of a person (‘P’) includes anyone who was defined as a family member of P under the EEA Regulations11 on 31 December 2020, plus the durable partner of P on that date (ie, without the need for an EEA residence document), plus the child of P in certain circumstances, such as if the other parent is British or has leave under the EUSS or is a ‘relevant person’.

Significantly, a ‘relevant person’ can be so defined on the basis of having had any right to reside under the EEA Regulations on 31 December 2020, and that person can then be entitled to benefit on any date in the grace period on which s/he has a non-excluded right to reside,12 which may be different to the right to reside held on 31 December.

People with pre-settled status

The definition of ‘relevant person’ specifically excludes anyone with leave under the EUSS. This is not a problem if the person has settled status as this is a non-excluded right to reside for all benefits that have that requirement. The potential hole in protection for those with pre-settled status is not addressed in the Grace Period Regulations, but is covered by separate regulations. These regulations provide for the EEA Regulations to continue to have effect for the purpose of benefit entitlements for those with pre-settled status, despite the EEA Regulations being revoked more generally.13

When the protection ends

The temporary protection ceases for a ‘relevant person’ when s/he is granted leave under the EUSS, or after 30 June 2021, if that is sooner. However, if the person has, by 30 June, made a valid application for leave under the EUSS, then the temporary protection continues until that application for leave is finally determined (including any appeal) or withdrawn.14

For those with pre-settled status, the protection (ie, continuation of the EEA Regulations) only ends once the person ceases to have pre-settled status. Therefore, given that pre- settled status is granted for five years, the EEA Regulations will continue to have relevance for many years to come.

Rules for those without protection

For EEA nationals and their family members who are not ‘lawfully resident by virtue of the EEA Regulations’ on 31 December 2020, and who do not have pre-settled status, the free movement residence rights provided under the EEA Regulations will be revoked. This can apply both to EEA nationals resident in UK before 31 December and their family members (if they lack a right to reside on that date and have not obtained pre-settled status), and EEA nationals and their family members who arrive after free movement rights have been ended. However, the significant difference between these two groups is that only those in the former group will be eligible to apply for leave under the EUSS. If granted settled status, they will be then able to access all benefits or, if granted pre-settled status, will be able to make use of the EEA Regulations and, while they have a non-excluded right to reside, be able to access benefits that require a right to reside.

The primary barrier to accessing benefits for those who do not have any protections after free movement residence rights have been ended will be the exclusion from most benefits15 of those defined as a ‘person subject to immigration control’, because this definition is itself changing.

Whereas currently the definition16 of this term begins: ‘A person who is not a national of an EEA state and who…[falls into one of the listed groups – see below]’, regulations omit the words underlined, with the effect of expanding the definition to EEA nationals as well as non-EEA nationals.17

The definition of person subject to immigration control will therefore be:

‘A person who:

• requires leave to enter/remain but does not have it;
• has leave subject to a ‘no recourse to public funds’ restriction;
• has leave as a result of a maintenance undertaking;
• has leave solely due to appealing a refusal to vary leave.’

Note: this change does not take effect during the grace period for anyone defined as a ‘relevant person’ (or thereafter if an EUSS application, made by 30 June, is not yet finally determined.18 Furthermore, anyone who has leave granted under the EUSS will not be a defined as a ‘person subject to immigration control’ (unless the fourth bullet applies) as the leave is never granted subject to a ‘no recourse to public funds’ condition. However, other EEA nationals, including significant numbers who do not have, but will require, leave or who arrive after the end of free movement and are granted leave subject to a ‘no recourse to public funds’ restriction, will be defined as persons subject to immigration control and excluded from most social security benefits on that basis.

Consequently, the limited exempt groups that enable those defined as a ‘persons subject to immigration control’ to disapply this exclusion for specific benefits are due to become of greater importance for claimants and their advisers.19 Of particular note is the exempt group that enables access to means-tested benefits for nationals of countries who have ratified either the European Convention on Socia land Medical Assistance (1961) or the Council of Europe Social Charter,20 and who are ‘lawfully present’ (which includes being within a period of leave).

However, to end on a note of caution, this is a rapidly changing area and the specifics of exempt groups, and of benefit entitlement more broadly, are likely to change as new arrangements are negotiated between the UK and individual countries, and further legislation is passed in the UK.