Brexit and Welfare Benefit Entitlement for EEA/Swiss Nationals and their Family Members

This long form article explains rights to benefits for EEA/Swiss nationals and their family members after the end of the transition period on 11pm 31 December 2020.

This article was originally published on 20 January 2021. It was updated on 11 March 2021, 23 September 2021, 26 October 2021, 6 December 2021, 24 May 2022 , 12 June 2023 and 14 February 2024.

In this article references to EEA nationals also includes Swiss nationals, and references to the EEA also includes Switzerland.

Background

The UK left the EU at 11pm on 31 January 2020, under the terms of the European Union (Withdrawal) Act 2018. This is underpinned by the Withdrawal Agreement which forms the basis of the European Union (Withdrawal Agreement) Act 2020. The Act also gives effect to the EEA EFTA Separation Agreement between the UK and Norway, Iceland and Liechtenstein, and the Swiss Citizens’ Rights Agreement between the UK and Switzerland.

The interaction between the Withdrawal Act and the Withdrawal Agreement meant that EU law continued to apply directly during the ‘transition period’. The latter ended at 11pm on 31 December 2020. At that point, all EU law became ‘retained EU law’ in domestic law. This includes EU derived domestic legislation such as the Immigration (EEA) Regulations 2016 (which govern right to reside law and hence entitlement to certain social security benefits) and direct EU legislation such as Regulation (EC) 883/2004 (which is one of the regulations that governs the co-ordination of certain social security benefits).

The Government regarded the end of free movement of EEA nationals and their family members as central to Brexit — hence the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020, which came into force at 11pm on 31 December 2020. The purpose of the Bill before it became law was described as ‘a Bill to make provision to end rights to free movement of persons under retained EU law and to repeal other retained EU law relating to immigration; to confer power to modify retained direct EU legislation relating to social security co-ordination; and for connected purposes.’

Crucially, the Act revoked right to reside law under the Immigration (EEA) Regulations 2016 (the ‘2016 regulations’) , which would otherwise have become retained EU law. However, parts of the 2016 regulations have been saved (with mostly beneficial amendments) for certain EEA nationals and family members resident in the UK before the end of the transition period as discussed below. The 2016 regulations can also still apply to existing family members who come to the UK after the end of the transition period.

Schedule 1 Part 1 of The Act makes EEA citizens and their family members persons subject to immigration control (PSIC). It revokes section 7 of the Immigration Act 1988 which was an exemption from the requirement for leave to enter or remain in the UK for persons exercising EU rights. A PSIC is excluded from benefits that count as public funds (see updated Home Office Public Funds Guidance (PDF) under section 115(9) of the Immigration and Asylum Act 1999. The latter used to read;

“A person subject to immigration control” means a person who is not a national of an EEA State and who —

(a) requires leave to enter or remain in the United Kingdom but does not have it…’

Under regulation 12(6) of The Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations 2020, also in force since 11 pm on 31 December 2020, the words ‘who is not a national of an EEA state’ are omitted.

The above applies to all EEA nationals and their family members, including those resident in the UK in the UK before the end of the transition period. Hence the importance of applying for status under the EU Settlement Scheme (EUSS).

The Act also gives the Government the power to modify provisions relating to the social security co-ordination regulations and other EU derived rights.

From March 2019 (following an earlier trial) the Government introduced the EU Settlement Scheme (EUSS). EEA nationals and non EEA nationals with EU rights to be in the UK must apply for and receive a status under the EUSS to avoid being subject to immigration control and remain legally in the UK. Status is also vital for benefit entitlement.

The Withdrawal Agreement provides protection for those EEA nationals and family members resident in the UK immediately before the end of the transition period. Note that this can include certain groups not in the UK on 31 December 2020 — for example those with pre-settled status can be absent for up to two years. It protects the rights of their existing family members, provided the relationship existed on 31 December 2020. It also provides the same rights for their children born or adopted after 31 December 2020 and, for Swiss nationals only, future spouses/ civil partners until the end of 2025.

This protection extends to existing family members who lived outside of the UK at the end of the transition period. Family members can include non-EEA citizens.

Broadly speaking, the Citizens Rights section of the Withdrawal Agreement preserves access to benefits, housing and other services for those EEA nationals and family members resident in the UK before the end of the transition period, on the same terms as before.

The Withdrawal Agreement is with the EU but we have parallel agreements with the European Free Trade Association states (Norway, Iceland and Liechtenstein) and Switzerland.

To this end the Government issued two main sets of regulations. The Withdrawal Agreement allowed for a 6-month extension to the period during which an EEA national and their family members, who were resident in the UK before the end of the transition period, could apply to the EUSS. This was known as the ‘grace period’. The EUSS has therefore closed for applications after 30 June 2021 for those people, though late applications may still be made (see below). It also remains open indefinitely for joining family members after 1 January 2021. A grant of status under the EUSS will be vital to avoid being subject to immigration control after 30 June 2021, unless someone comes under the ‘temporary protection regulations’ described below, applied to the EUSS before 30 June 2021 and is still waiting for or appealing a decision. Also note that once someone applies to the EUSS and receives a Certificate of Application from the Home office, this counts as ‘temporary protection’ for the Home Office including protection from being subject to immigration control.

Settled status under the EUSS is indefinite leave to remain in the UK and provides entitlement to benefits that require a right to reside. It also ensures that the person is lawfully in the UK and can claim those benefits that do not require a right to reside, provided they satisfy the domestic conditions of entitlement. Pre-settled status is limited leave to remain in the UK and also ensures that someone is lawfully in the UK as above. However, it is excluded as a right to reside for benefit purposes (please see Rights to benefits with pre-settled status only further on).

The position of family members is complex — please see the separate section below.

Benefits that require a right to reside are universal credit (UC), child benefit, pension credit, income related employment and support allowance, income based jobseekers allowance, housing benefit, income support, child tax credit and council tax reduction.

Due to the roll out of UC the right to reside requirement will only apply to new claims for UC, child benefit, pension credit, council tax reduction and, in limited circumstances, housing benefit.

Rights to benefits from 1 January 2021 during the ‘grace period’, for those yet to apply to the EUSS (the ‘temporary protection regulations’)

The Citizens’ Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020 (the ‘temporary protection regulations’) allowed someone with a right to reside on 31 December 2020 to continue to exercise that right (and switch to another right to reside) during the grace period, provided they applied to the EUSS before 1 July 2021.

They were also not a PSIC provided they were covered as above, pending a decision on their application or an appeal.

The ‘temporary protection regulations’ also protected ‘relevant’ family members of those covered as above and allowed them to derive a right to reside from the main right holder. This applied to family members both in the UK before the end of the transition period and joining family members during the grace period. Both the main right holder and the family member needed to lack EUSS status for the regulations to apply.

The regulations above may be of historical interest only now, given that the grace period ended on 1 July 2021. However there may be claimants who made an application to the EUSS or appealed during the grace period who are still waiting for a decision. Also having a right to reside during the grace period may still be important for those who lacked EUSS status at the time, for example for those who need to establish a permanent right to reside pending an ‘upgrade’ from pre-setted to settled status.

Example

Lena is a Hungarian national and arrived in the UK on 1 March 2018. She looked for work for 2 months then found a full-time job and has worked continuously ever since.

Lena applied to the EUSS on 28 June 2021 and was granted pre-settled status on 8 October 2021.

She now wishes to give up work to care for her elderly parents and wants to claim UC.

Lena can apply for settled status as by 1 March 2023 she has been in the UK for 5 continuous years. She retains her pre-settled status until a decision is made on her settled status application, so she needs a right to reside for UC.

Lena has a permanent right to reside as of 1 March 2023. She was initially a jobseeker for 2 months — this is an excluded right to reside for UC but still counts towards a permanent right. Also Lena had an initial right of residence of up to 3 months, which is also an excluded right but still counts towards a permanent right to reside. She has been a worker for 4 years and 10 months. As she was a worker on 31 December 2020 and applied to the EUSS before 1 July 2021, she was still a worker due to the ‘temporary protection regulations’ despite not having pre-settled status until 8 October 2021. Once Lena was granted pre-setted status she continued to be able to exercise rights as a worker.

So pending a decision on her application for settled status, Lena should be entitled to UC without having to continue to exercise rights as a worker, as she should have a permanent right to reside.

Before stopping work Lena should be prepared to evidence her permanent right i.e when she arrived in the UK, that she was initially a jobseeker (though she would have had an initial right of residence anyway), was then in ‘genuine and effective’ employment including on 31 December 2020 when she applied to the EUSS and during her subsequent grant of pre-settled status.

Also note that under the Withdrawal Agreement a permanent right to reside is only lost after 5 continuous years absence from the UK, rather than 2 years.

For further guidance on the ‘temporary protection regulations’ please see ADM Memo 30/20 (PDF).

Late applications to the EUSS after 30th June 2021

Those EEA nationals and family members resident in the UK on 31 December 2020 had until 30th June 2021 to apply to the EUSS. Concern was expressed about vulnerable EEA nationals and family members who may have missed the deadline e.g children and young adults in the care or justice system, those with language, physical, mental or cognitive problems and elderly residents. Also many families did not appreciate that they all had to make applications to the EUSS, including for their children. There is no way of knowing how many EEA nationals and family members there were in the UK by 31 December 2020 as they were never required to register.

Revised EU Settlement Scheme guidance to Home Office caseworkers V.22.0 dated 16 January 2024 at P. 37 to 51, includes a ‘non exhaustive’ list of what may constitute ‘reasonable grounds’ for a late application. Note that this guidance also applies to a late application from a joining family member (and a child born or adopted in the UK to a joining family member), who has 3 months to apply to the EUSS if arriving in the UK after 1 April 2021 (or a new birth to a joining family member in the UK). It no longer applies to those who fail to ‘upgrade’ to settled status before their pre-settled status expires.¹

The guidance was updated in August 2023 to generally remove being unaware of the need to apply to the EUSS as ‘reasonable grounds’. The updated guidance now gives examples of where this could still be considered as ‘reasonable grounds’. For example, lacking the physical or mental capacity to apply, or providing information and evidence that they had a reasonable belief that they did not need to apply earlier to the EU Settlement Scheme or a reasonable basis for being unaware that they needed to apply, and in either case they have now applied without further delay. Again, the examples given are non exhaustive. Also guidance confirms that under the Withdrawal Agreement the right to make a late application is not time limited and that every case must be considered in light of its particular circumstances and the evidence provided.

After the end of the grace period on 1 July 2021 the DWP stated that those EEA nationals who had not applied to the EUSS, and who were also not covered by the ‘temporary protection regulations’, would not automatically have means tested benefits stopped. They would continue to be paid for a short time on an ‘extra statutory’ basis whilst signposted to apply to the EUSS, and benefits would only be suspended (and later terminated) if they had not subsequently made an application.

The DWP also announced that further to a data matching exercise carried out on 1 July 2021, the Home Office would write to all EEA and Swiss nationals who had still not applied for EUSS status and prompt them to urgently contact the Home Office and apply or risk their benefit payments being stopped.

We are not aware of any updates regarding the above.

EEA nationals and their family members who were resident in the UK on 31 December 2020 and who did not apply to the EUSS before 1 July 2021 would be PSIC and hence excluded from entitlement to the majority of benefits that require recourse to public funds.

However, once an EEA national or family member in the above situation has applied to the EUSS for status and has a ‘certificate of application’ (COA) to show that the application is valid, they are protected by Article 18(3) of the Withdrawal Agreement, pending a final determination of their application (including an appeal against refusal of status). They can then exercise a right to reside under EU law for entitlement to benefits that requires it. The EEA national has to be in scope of Article 10 of the Withdrawal Agreement. Also the Home Office will not treat them as a PSIC.

Article 10(1)(a) brings in scope ‘Union citizens who exercised their right to reside in the United Kingdom in accordance with Union law before the end of the transition period and continue to reside there thereafter’.

Note that all that is required is that the EEA national exercised a right to reside before the end of the transition period — unlike the ‘temporary protection regulations’ which required the EEA national to have a right to reside on 31 December 2020.

Also this can be at any time before the end of the transition period.

In practice, all EEA nationals who resided in the UK by 31 December 2020 will come under Article 10(1)(a) due to having an initial right of residence of 3 months. Hence any EEA national ( and a family member dependent on them for their right to reside) who was resident in the UK on 31 December should be able to make a new application, for example for UC, provided they have a current right to reside. They would require a COA from the Home Office to prove they have applied to the EUSS and that the application is ‘valid’ i.e. if it’s late application, grounds for lateness have been accepted. A COA is issued digitally. The Home office calls a COA ‘temporary protection’.

Prior to August 2023 it was in our experience rare for the Home Office to refuse to issue a COA on a late application to the EUSS. Since August 2023, following the change to Home Office Guidance on late applications, refusals have grown. A refusal to issue a COA is not a refusal to award a status under the EUSS and so is not open to an appeal (administrative review of EUSS decisions made after 5th October 2023 no longer applies). Effectively a person refused a COA on a late application can only make representations to the Home Office (involving their MP would be advisable), seek judicial review or apply again. Legal advice and legal aid would be necessary before starting a judicial review and so may make this impracticable for the vast majority of applicants. Also the guidance seeks to restrict the circumstances in which a further application may be considered on validity grounds — it refers to this applying only in ‘occasional circumstances’. This is likely to be a growing problem, as without a COA there can be no rights under the Withdrawal Agreement, and hence no rights to benefits that are public funds or require a right to reside. Additionally the person will not be able to actually get EUSS status and hence will not be in the UK legally unless they can use another immigration route.

Unfortunately there are various guidance documents regarding access to benefits with a COA.

The latest version of the Home Office Public Funds guidance (PDF) published on 5 October 2023 at P. 44 and 46 confirms that those with a COA ‘may’ be able to access benefits and services and that a right to reside may be needed for certain benefits as well. However the guidance has been significantly reduced from the previous version — there is no mention of rights under the Withdrawal Agreement, rights of joining family members and certainly no mention ( as in previous guidance) that those who could be ‘expected’ to get settled status would not need to show a right to reside for certain benefits.

DWP guidance to Local Authorities for housing benefit entitlement in guidance A10/2021 states that where an application is from a claimant with a COA from the Home Office for a late application to the EUSS , it should be treated in ‘the same way’ as an application made before 30 June 2021. Hence a claimant can access ‘HB and other income related benefits’ pending a decision on the application or an appeal.

The DWP also issued guidance in ADM Memo 19/21 (PDF), which is the first to mention those in scope of Article 10 of the Withdrawal Agreement. The latter will be able to ‘access benefits’ with a COA if applying to the EUSS on a late application after 30 June 2021, or if they are appealing a decision from the EUSS. Those that are not in scope of Article 10 will only be eligible for ‘non-contributory benefits’ once they have been granted leave under the EUSS.

Decision Makers are not told how to check if someone comes under Article 10, let alone what it says or how it should be interpreted.

Note that Article 10 also protects the rights of family members of those that come under Article 10(1)(a) to (d), including in some circumstances those that arrive in the UK after 1 January 2021.

Also DWP guidance does not deal with ‘joining family members’. Where guidance such as that issued by the DWP refers to ‘late applications’ it’s important to realise that a ‘joining family member’ who applies to the EUSS within 3 months of arrival is not making a late application. However Article 18(3) of the Withdrawal Agreement gives protection once an application is made to the EUSS and has been accepted as valid, whether that is in time or late.

Under the Withdrawal Agreement the situation is clear. EEA nationals and their family members resident in the UK before 31 December 2020, together with joining family members after 1 January 2021, should have rights to benefits once they have applied to the EUSS and have a COA, provided that they also have a current right to reside for those benefits that require it.

The lack of clarity in guidance is aptly covered in this briefing from the EU Rights and Brexit Hub.

Rights to benefits from 1 January 2021 for those with pre-settled status under the EUSS (The ‘savings regulations’)

Schedule 4 of The Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations 2020 (the ‘savings regulations’) allows an EEA national, and their family members, to continue to exercise a right to reside for benefits if they have pre-settled status under the EUSS. A right to reside is with reference to the saved and amended Immigration (EEA) Regulations 2016.

For example, the decision of the Upper tribunal in KH v-Bury MBC and SSWP [2020] UKUT 0050 (AAC) (PDF) is reflected in the amendments — the requirement for a genuine prospect of work test after 6 months, if employed or self employed for more than a year, is removed.

Persons with pre-settled status are members of ‘the post-transition period group’ under schedule 4 paragraph 1(b) and they continue to have access to the modified Immigration (EEA ) Regs 2016 under paragraph 2.

Someone with settled status would not have to rely on these regulations for benefit entitlement as settled status means that rights are on a par with those for British nationals. Settled status is indefinite leave to remain and will always constitute a right to reside. These regulations preserve the status quo for EEA nationals resident in the UK before the end of the transition period i.e pre-setted status on its own is excluded as a qualifying right to reside for those benefits that need it. Hence a qualifying right to reside under the saved and amended Immigration (EEA) Regulations 2016 is also needed for entitlement to benefits that require a right to reside, until the person has been resident in the UK for 5 continuous years, when they can apply for settled status and no longer require a right to reside.

Example

Lena (from the earlier example ) applies to the EUSS and is awarded pre-settled status on 8 October 2021. Her rights under the ‘temporary protection regulations’ stop as she now has an EUSS status. However, her rights to benefits continue under the ‘savings regulations’ as she has both pre-settled status and a right to reside as a worker. Lena can continue to rely on the ‘savings regulations’ until she is awarded settled status and will no longer have to show a separate right to reside. This includes being able to exercise a permanent right to reside.

For further guidance please see ADM Memo 29/20 (PDF).

Rights to benefits with pre-settled status only

When the government introduced the EUSS scheme properly in March 2019 it realised shortly afterwards that pre-settled status was in fact a right to reside and it had extended entitlement to a much larger group of EEA nationals and family members than was intended. Since 7 May 2019 pre-settled status has been an excluded right for means tested benefits that require it. This was the subject of litigation in the case of Fratilla, which culminated in the ruling of the Supreme Court on 1 December 2021. The Court ruled that the exclusion of pre-settled status as a right to reside was not unlawful discrimination. This was a forgone conclusion, given that the Court considered itself bound by an earlier decision of the Court of Justice of the European Union (CJEU) in C-709/20 CG v Department for Communities (NI).

However the CJEU in CG ruled that before denying social assistance such as UC to an EEA national with pre-settled status but no right to reside, the benefit authorities need to check whether doing so would expose the claimant and any children to an actual and current risk of a violation of certain Articles of the Charter of Fundamental Rights of the EU. For example, Article 1 of the Charter imposes an obligation for the EEA national to be able to live in dignified conditions.

The Supreme Court did not consider this aspect of the case of CG as it was not argued before it.

However the above was argued before a three Judge panel in Upper Tribunal (UT) case SSWP v AT (AIRE Centre and IMA Intervening) [2022] UKUT 330 (AAC), which gave its decision on 12 December 2022.

The UT was asked to answer three questions;

1. Does the Charter continue to apply after the end of the transition period on 31 December 2020? It ruled that it does, under the Withdrawal Agreement.

2. Is an individual assessment required of the risks to the claimant and any children of a breach of certain rights under the Charter if social assistance would be refused? It ruled that it is.

3. Did the First-tier Tribunal err in holding that without UC the claimant and her child would not be able to live in dignified conditions? It ruled that the Tribunal did not err in law.

The DWP appealed to the Court of Appeal, which gave its judgment on 8 November 2023. All the DWP’s grounds for appeal were dismissed. The DWP then sought leave to appeal from the Supreme Court, but this was refused on 8 February 2024.

The UT ruling has therefore created potential benefit entitlement for EEA nationals and non EEA national family members with pre-settled status but no right to reside at risk of ‘destitution’ if UC is refused. However advisers will need to be careful on which cases to run and potential arguments available.

CPAG has some excellent resources for advisers at the bottom of this article, including dealing with the DWP or the First-tier Tribunal where cases have been ‘stayed’.

Rights to benefits after the end of the transition period that do not require a right to reside

Not all benefits require a right to reside, for instance disability benefits such as personal independence payment, disability living allowance, attendance allowance or carer’s allowance.

However, for those benefits, the claimant will still need to satisfy domestic conditions of entitlement, such as the past presence test. Crucially most benefits require that the person is not subject to immigration control. There is protection from being subject to immigration control if someone is covered by the ‘temporary protection regulations’. Also having applied to the EUSS and having a COA, or having an EUSS status, will ensure that an EEA national or family member does not fall foul of this requirement. Hence applying to the EUSS is vital for all EEA nationals and their family members, who were resident in the UK on 31 December 2020, before 30 June 2021 — not just for benefit entitlement — but to ensure that they are not subject to immigration control and have the right to remain in the UK after 1 July 2021 (though note the section on late applications above). Status under the EUSS is an individual status, so a person cannot ‘derive’ a status under the EUSS as they may be able to do for a right to reside. So, for example, even EEA children have to apply to the EUSS.

Once awarded EUSS status is not retrospective to the date of application.

Example

Florin is a Romanian national who has been in the UK since 2019. He was working then became ill. He has pre-settled status. He was refused universal credit but is challenging this decision on the grounds that he retains his worker status, and so has a right to reside, due to temporary incapacity. He is also entitled to personal independence payment (PIP). Having pre-settled status ensures that his PIP can continue.

ADM Memo 8/21 (PDF) gives guidance for assessing claims for PIP when someone may or may not be covered by the ‘savings regulations’. An EEA national or family member resident in the UK on 31 December 2020 who is not covered by the ‘temporary protection regulations’ at the end of the ‘grace period’ will be a PSIC until they apply to the EUSS, and then have the protection of the Withdrawal Agreement.

Rights to benefits of family members

Family members can include non EEA nationals and are:

• spouses or civil partners
• children and grandchildren aged under 21
• children and grandchildren over 21, if ‘dependent’
• Relatives in the ascending line such as parents and grandparents, if ‘dependent’
• Extended family members, for example (note that these are not the only categories);

A relative (e.g. brother, sister, aunt or uncle) who, for example on serious health grounds, requires the care of the EEA national or their spouse or civil partner or;

Unmarried partners in a durable relationship which has, in general, existed for at least 2 years as of 31 December 2020.

Note that extended family members, including those in a durable relationship, must have been issued with an EEA residence document such as an EEA family permit, a registration certificate or a residence card, in order to be treated as a family member. All extended family members must have applied for such an EEA document before 31 December 2020 — though partners in a durable relationship who arrived in the UK during the grace period may have been issued with one. Extended family members with the required EEA document can derive a right to reside through their main EEA family member, provided that main family member is exercising a right to reside.

This leads to problems for extended family members who were in the UK on 31 December 2020 but who didn’t apply for the required EEA document before 31 December 2020. They will not be able to derive rights from a family member, even if they have pre-settled status — they need to exercise a right to reside in their own right (provided they are an EEA national), or have settled status.

Also even those extended family members who applied for a relevant EEA document before 31 December 2020 (or partners in a durable relationship who were issued with one during the grace period) may no longer be able to rely on these after 1 July 2021 as they are no longer recognised after that date. In addition, EEA documents that have expired are no longer replaced. An extended family member in this situation who is refused benefit or whose benefit is terminated should seek specialist advice. It should be arguable that they are protected by the Withdrawal Agreement.

Note that extended family members do not have the right to join a family member already in the UK, after 1 January 2021, unless they are partners in a durable relationship as of 31 December 2020.

Rights to benefits for family members under the ‘savings regulations’

Persons with pre-settled status are members of ‘the post-transition period group’ under schedule 4 paragraph 1(b) and they continue to have access to the modified Immigration (EEA ) Regs 2016 under paragraph 2.

Rights of family members are preserved under the above.

Also Part 3 of the savings regulations amends the relevant legislation for those benefits that require a right to reside to make it clear that, as per ADM Memo 29/20 (PDF) at paragraph 24;

‘At the end of the definition of “EEA Regulations” insert “and references to the EEA Regulations are to be read with Schedule 4 to the Immigration and Social Security Coordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) Regulations 2020.” This has been added so that a person reading the legislation knows that references to the Immigration (EEA) Regs 2016 are to be read in conjunction with the Home Office Consequential SI, which makes clear they only apply to those who have pre-settled status. This will be relevant after the end of the Grace Period.’

Can someone with pre-settled status derive a right to reside from a family member with settled status?

Status under the EUSS is an individual right given under domestic immigration law and cannot be ‘derived’ from another family member. However, what if the person with settled status is still exercising a right to reside, such as a worker, or has a permanent right to reside?

As noted above the ‘savings regulations’ only apply to those with pre-settled status — ADM Memo 29/20 (PDF) at paragraph 24 states that the relevant regulations for individual benefits that require a right to reside (e.g regulation 9 of the UC Regulations 2013) have been amended. References to the Immigration (EEA) Regs 2016 are to be read in conjunction with the ‘savings regulations’ which ‘makes clear they only apply to those who have pre-settled status.’

Also since the revocation of the 2016 regulations at 11 pm on 31 December 2020, those with settled status are not in a protected group that continue to have access to those regulations. This won’t matter for their individual benefit entitlement as they have indefinite leave to remain, but might be thought to have consequences for family members who need to derive rights from those with settled status who are still exercising a right to reside.

Prior to the revocation of the 2016 regulations at the end of the transition period it was irrelevant if the main right holder had settled status and had a right to reside — a family member could still derive rights from them.

Any denial of rights to a family member who continues to derive a right to reside from an EEA national with settled status may be contrary to the Withdrawal Agreement. In practice this is not something we have seen — the DWP appears content to allow a family member with pre-settled status to continue to derive a right to reside from a main right holder that has settled status, even though the latter no longer has access to the 2016 regulations.

However a family member with pre-settled status can only continue to derive a right to reside from their main right holder with settled status if the latter is exercising a right to reside. This can cause problems as someone with settled status may not be exercising a right to reside anymore. There can also be the usual problems with supplying evidence that the family member with settled status has, for example, a permanent right to reside.

Joining family members after 1 January 2021

The Withdrawal Agreement protects the rights of EEA nationals resident in the UK before the end of the transition period to bring family members to the UK at any time after 1 January 2021. This does not apply to extended family members, apart from partners in a durable relationship as of 31 December 2020. The family relationship must have existed before the end of the transition period, apart from children born to or adopted later by an EEA who was resident in the UK before the end of the transition period. Due to a separate agreement, the spouses and civil partners of Swiss citizens will still be eligible until the end of 2025, even if the marriage/civil partnership began after 1 January 2021.

Joining family members can still apply to the EUSS even after 30 June 2021 when it closed for applications for those resident in the UK before 31 December 2020 — though they need to apply within 3 months of arriving in the UK, or make a late application.

They would need to apply for and be granted an EUSS family permit first to enter the UK.

Family members can also make applications to the EUSS from outside the UK. If granted they ought to be able to travel with a passport or ID card, together with proof of their online EUSS status.

Note that a joining family member will only be able to exercise a right to reside once they have applied to the EUSS and have a COA, or have pre-settled status.Having an EUSS family permit on its own is an excluded right to reside.

Irish citizens

Irish nationals do not require leave to enter or remain but can use the EUSS if they wish to do so. They can have a right to reside in the UK as before, under the Common Travel Area arrangement, and their family members can also derive family member rights in the same way if the Irish national was resident in the UK before the end of the transition period and also exercising a right to reside in the same way as any other EEA national. However, non Irish or non British family members of Irish nationals resident in the UK before the end of the transition period should still have applied to the EUSS before 30 June 2021, or make a late application now. This is a complex subject and Irish citizens with dual British nationality or born in Northern Ireland should take further advice. Irish citizens arriving to live in the UK only after 31 December 2020 will derive no rights for their family to stay from either EEA rights or the EU Settlement Scheme. They will need to get family visas under UK domestic immigration law.

New arrivals from the EEA after the end of the transition period who are not joining family members

New arrivals from the EEA after the end of the transition period, who were not previously resident in the UK and are not joining family members of an EEA national resident in the UK before then, will be subject to immigration control and will usually have no recourse to public funds. They cannot apply to the EUSS. This will include those who arrive under the new points-based system and students, or visitors who will automatically be given 6 months’ leave to enter the UK. As such, they will not be entitled to the majority of benefits, including means-tested and non-means-tested benefits such as personal independence payment. They will still be entitled to contributory benefits such as contributory jobseekers allowance.

Rights to benefits under the EU co-ordination provisions.

The EU co-ordination provisions for social security benefits provided a reciprocal framework which applied to both UK and EEA nationals. Their primary function was to support free movement throughout the EEA. For example, they provided for an EEA country to consider periods of work, insurance or residence in another EEA country (which included the UK at that time) when determining entitlement to benefits (which is known as ‘aggregation’), and enabled an individual to receive benefits from one EEA country even if they were resident in another EEA country.

Benefits affected by the co-ordination rules include retirement pensions, cash sickness benefits (eg disability benefits), contributory benefits such as contributory employment and support allowance and contributory jobseekers allowance, maternity benefits (such as maternity allowance), invalidity benefits (eg main phase contributory ESA), family benefits such as child benefit and child tax credit and survivors benefits such as Widowed Parents Allowance and Bereavement Support Payment.

The Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 allowed the Government to modify the co-ordination regulations to make them compatible with the UK leaving the EU.

From 31 December 2020, the Social Security Co-ordination (Revocation of Retained Direct EU Legislation and Related Amendments) (EU Exit) Regulations 2020 revoked the EU co-ordination regulations, which would otherwise be retained EU law, with some specific savings provisions, to ensure that they will not take effect in domestic law following Brexit.

The above regulations insert new sections into the European Union (Withdrawal Agreement) Act 2020 which allow certain ‘cohorts’ protected by the Withdrawal Agreement to continue to rely on the EU social security co-ordination provisions contained in there, so long as they remain within scope of the Withdrawal Agreement.

The Withdrawal Agreement is with the EU but we have parallel agreements with the European Free Trade Association states (Norway, Iceland and Liechtenstein) and Switzerland.

The Withdrawal Agreement protects the rights of ‘cohorts’ that are ‘in scope’ of the Agreement, so that they can continue to rely on the co-ordination provisions both now and in the future. This will protect current entitlement and future claims under the co-ordination provisions. This may include rights to certain benefits for:

● EEA nationals in the UK before the end of the transition period and;

● UK and EEA nationals who have previously worked in another EEA state.

Their rights will depend on whether they are in ‘full’ or ‘partial’ scope of the Withdrawal Agreement and may also depend on whether they subsequently fall out of scope. Being in ‘full scope’ of the Withdrawal Agreement means that the old co-ordination rules will continue to apply, whereas being in ‘partial scope’ means they will only apply in certain situations. Those in full scope include, for example, EEA nationals who were ‘subject to the legislation of the UK’ at the end of the transition period, as well as their family members or survivors. Broadly speaking, this means those working or self-employed (or have been so in the past), or in receipt of certain benefits. They need to remain in this situation ‘without interruption’. Also included are those with a right to reside under EU law before the end of the transition period and who continue to reside in the UK and also have a right to reside.

Those in partial scope include, for example, returning UK nationals who have previous periods of residence, insurance or employment in an EEA state before or after 1 January 2021 and EEA nationals who have previous periods of residence, insurance or employment in the UK before or after 1 January 2021 and who now reside in the EEA. Family members with derived rights are also in partial scope.

There is detailed operational Withdrawal Agreement guidance on how the Government intends to implement the social security co-ordination provisions for those protected by the Withdrawal Agreement.

Rights under the co-ordination provisions of the Withdrawal Agreement are not directly linked to having a status under the EUSS. For example, a Spanish national could have worked in the UK and paid national insurance and returned to Spain for good in February 2021 without having applied to the EUSS. But they would still be covered for periods of work, insurance or residence spent in the UK prior to 1 January 2020 when determining entitlement to Spanish benefits where such a condition needs to be satisfied. Likewise, an EEA national who exercised an EU right of residence prior to the end of the transition period does not need to have also had a status under the EUSS for the co-ordination rules. However, that EEA national will still need a status under the EUSS (or a pending application with a COA) to remain lawfully in the UK after 30 June 2021 and be entitled to public funds.

Section 26 of the European Union (Future Relationship) Act 2020 gives effect in domestic law to the Protocol on Social Security Coordination of the EU-UK Trade and Cooperation Agreement.

The provisions in the Protocol on Social Security Coordination ensure that individuals who move between the UK and the EU in the future under new immigration arrangements will be able to protect their contributions for state pensions and access a range of social security benefits (including healthcare) in line with those provisions.

The UK and EU Member States will be able to take into account relevant social security contributions paid into each other’s social security systems, or relevant periods of work or residence, by individuals in order to determine those individuals’ entitlement to a state pension and to a range of benefits (for example, unemployment and invalidity benefits). The Protocol also provides for the up-rating of the UK State Pension paid to pensioners who retire to the EU after the end of the transition period.

There is also the UK-Ireland Convention which continues some co-ordination provisions after 1 January 2021 for those not protected by the Withdrawal Agreement, who have moved between the UK and Ireland.

For those who are not in the scope of the Withdrawal Agreement, entitlement may be determined under domestic law unless there are future reciprocal agreements with the EU or the individual countries within the EEA including Switzerland.

Examples

Full scope: Andreas is a Greek national who has worked in the UK for many years, became ill and is entitled to contributory ESA (CESA) with the support group element. He was therefore subject to the legislation of the UK at the end of the transition period. He also receives personal independence payment (PIP) enhanced rate daily living component. In June 2023 Andreas returns to live in Greece permanently. He can ‘export’ his entitlement to both CESA and PIP. Main phase contributory ESA is an invalidity benefit under the co-ordination rules and can be ‘exported’ to another EEA state. It also counts as a pension under the co-ordination rules, which means the UK remains responsible for the payment of a cash sickness benefit such as PIP daily living component. Andreas remains subject to the legislation of the UK provided he does not work in Greece or claim a Greek social security benefit.

Partial scope: Julia is a UK national who lived and worked in Italy from July 2018 to July 2022 and paid national insurance contributions in Italy. In August 2022 she returned to the UK and was employed for a year until becoming unemployed in August 2023. To be entitled to contributory jobseeker’s allowance, Julia would have to have paid sufficient national insurance contributions for the tax years April 2020/21 and April 2021/22. She cannot satisfy this condition through contributions paid in the UK but can still rely on their past contributions paid in Italy.

Note that the Operational Guidance does not correctly interpret the provisions for those in ‘partial scope’. It implies that, for example, a returning UK national needed to return before the end of the transition period. This is not the case, provided they were subject to the legislation of an EEA state before the end of the transition period. Periods of insurance both before and after the end of the transition period can be used towards aggregation.

With thanks to input from Djamilla Hitchins and John Donkersley, Immigration Experts.

Carlos Hagi works in the Welfare Benefits Expert Advice Team at Citizens Advice.

The information in this article is correct as of the date of the most recent update.

Unfortunately, we are unable to respond to comments left on the medium site — please contact expertadvicesupport@citizensadvice.org.uk if you wish to give feedback on an article.

References

[1] A successful judicial review decided that it is unlawful under the Withdrawal Agreement to require those with pre-settled status to have to apply again for settled status, and that rights cannot be lost if pre-settled status expires. The Home Office decided not to pursue an appeal against the judgment. From September 2023 the Home Office has automatically extended pre-settled status for those whose leave was to expire and who had not applied for settled status. We understand that the Home Office is now running checks for those who may be entitled to settled status, with other Governmental departments such as HMRC and the DWP. If those support the 5 year continuous residency condition, settled status will be given automatically. Those whose entitlement to settled status cannot be certified in this way will not be contacted. Therefore they should continue to make applications for settled status once they are eligible for it, for the moment.