The UK residence rights and immigration requirements for European Economic Area (EEA) nationals and their family members have significantly changed following the UK’s departure from the European Union (EU) and the end of free movement in the UK. Now that the end of the grace period (30 June 2021) - the deadline for EEA nationals and their family members to apply to the EU Settlement Scheme - has passed, councils will need to ensure that they understand what this means regarding the rights and entitlements of residents.
Councils will play a key role in upholding the rights of EEA nationals that have been protected in the Withdrawal Agreement and need to ensure that decisions regarding eligibility for services are made correctly. The Independent Monitoring Authority for the Citizens’ Rights Agreement has reminded public bodies ‘of the need for care in considering the status of citizens who have applied to the EUSS but have not yet received the results of their application’.
Understanding benefit and housing eligibility is particularly important, as it may fall to the Council to provide accommodation and financial support to alleviate destitution and prevent homelessness when a person is ineligible for means-tested benefits and homelessness assistance. Councils will also need to assist EEA residents who still need to apply to the EU Settlement Scheme to get information and advice about making a late application.
This article addresses some of the questions arising from recent legal and policy developments relating to late applications, Zambrano carers, and entitlement to benefits and social services' support. For further information, councils will need to refer to our factsheet: supporting European Economic Area (EEA) residents who are destitute or at risk of homelessness.
When will the Home Office accept a late application?
The Home Office has recently published guidance on when it will accept a late application submitted after the deadline on 30 June 2021. A late application will be accepted when a person can show that they have reasonable grounds for failing to meet the deadline. Several examples of what might constitute a ‘reasonable ground’ are given in the Home Office caseworker guidance and it appears likely that late applications will be accepted from children, people who lack mental capacity, and adults with care and support needs. The guidance sets out other examples along with the evidence that a person would need to submit.
The Office of the Immigration Services Commissioner (OISC) has confirmed in guidance for EU Settlement Scheme advisers the circumstances when a level one adviser can assist a person to make a late application.
Can a Zambrano carer apply to the EU Settlement Scheme?
Until 30 June 2021, a non-EEA national primary carer of a British citizen, usually a child, had a derivative right to reside under European law as a Zambrano carer. The EU Settlement Scheme has been open to Zambrano carers but a Home Office policy prevented Zambrano carers from being able to obtain pre-settled or settled status if they had already been granted a different form of leave to remain under the Immigration Rules, such as under Appendix FM as the sole carer of a British child.
A recent High Court decision has found this policy to be unlawful. The Home Office is currently in the process of appealing this decision so it is not clear what the final outcome will be, but people who are affected may need to take action now. Anyone who had a derivative right to reside as a Zambrano carer on 31 December 2020 may be able to apply to the EU Settlement Scheme even though the deadline has passed. For some Zambrano carers, there will be clear advantages of obtaining status under the EU Settlement Scheme, but for others there could be disadvantages. Therefore any individual who may be affected should seek legal advice about how to proceed. This includes anyone who has previously applied to the EU Settlement Scheme and has been refused or has previously been advised that they cannot apply because they already have leave to remain. For more information, see Hackney Migrant Centre's guidance note.
What happens to a person’s benefits if they applied before the deadline of 30 June 2021 but have not received their decision?
The DWP has confirmed that if a person is receiving benefits, their entitlements will continue until they get a decision on their application. Therefore, a pre-existing benefit claim should continue whilst the person’s EU Settlement Scheme application is pending, so long as the person continues to qualify for the benefit in question.
However, a person making a new claim for means-tested benefits will need to show that they had a right to reside on 31 December 2020 in order to qualify.
For other entitlements, such as employment, right to rent, and secondary NHS care, a person can rely on their Confirmation of Acceptance notice to evidence that they have a pending application in order to access services.
For more information, see our factsheet: supporting European Economic Area (EEA) residents who are destitute or at risk of homelessness.
What happens to a person’s benefits if they did not make an application before the deadline?
A person who has not applied to the EU Settlement Scheme will be unlawfully present in the UK. Even if a late application is accepted by the Home Office, the person will continue to be without lawful status until they are granted settled or pre-settled status.
A person in this position will not be eligible for means-tested benefits if they make a new claim but they may not immediately lose access to any benefits they are already receiving.
EEA nationals who are currently receiving benefits may have already been contacted by the Home Office or Department for Work and Pensions to remind them to apply to the EU Settlement Scheme. In a letter to local authority Revenue and Benefits staff, the DWP has advised that benefit claimants who failed to apply by 30 June 2021 are likely to be contacted by the Home Office again in July and issued with a notice advising them to make a late application within 28 days. Those that do not apply will be referred to the DWP and provided with a further reminder to take action. Anyone who fails to make a late application will risk having their benefits stopped.
For more information, see our factsheet: supporting European Economic Area (EEA) residents who are destitute or at risk of homelessness.
When will the legal challenge regarding pre-settled status and access to Universal Credit be concluded?
In the case of Fratila v the Secretary of State for Work and Pensions, the Court of Appeal ruled that the Universal Credit eligibility regulations unlawfully prevent people from being able to rely on their pre-settled status as a qualifying right to reside. The Supreme Court hearing of the Government’s appeal against this decision has been stayed pending the outcome of a Court of Justice of the European Union (CJEU) case that will consider the same issue. The Advocate General of the CJEU has given an opinion on the case and a final ruling is expected soon. The Law Centre Northern Ireland explains what the opinion might mean for benefit claimants. Anyone with pre-settled status who has been refused Universal Credit should seek advice about challenging this decision or make an application if they have not previously applied. For more information, see the Child Poverty Action Group’s summary of the Fratila case, which contains a link to a guidance note for applicants and benefit advisers.
What does a council need to do if a person is destitute or at risk of homelessness and is ineligible for benefits?
Following the end of the grace period, councils are likely to encounter EEA nationals who fail to satisfy benefits and homelessness eligibility requirements, including people with pre-settled status who are unable to work, people with pending EU Settlement Scheme applications who did not have a right to reside on 31 December 2020, and people who did not apply to the EU Settlement Scheme by 30 June 2021. In such cases, social services will need to consider whether statutory duties are engaged to provide accommodation and financial support to families or adults with care needs, and, whilst the pandemic is ongoing, councils will need to consider whether public health powers are engaged to accommodate people who are at risk of rough sleeping.
When requests for social services’ support are being considered, it is important to be aware that many EEA nationals will have lawful status in the UK and will not be subject to the bar on support set out in Schedule 3 of the Nationality, Immigration and Asylum Act 2002. In such cases, a human rights assessment should not be completed. Additionally, there will only be limited circumstances in which a council will be able to withhold or withdraw support on the basis that an EEA national who is ‘in breach of immigration laws’ can return to their country of origin. If a person is ‘in breach of immigration laws’ because they failed to apply to the EU Settlement Scheme by the deadline, they will need to be assisted to access legal advice about making a late application and can be provided with support whilst this is being made when social services' duties are engaged.
For more information about social services’ support and when a human rights assessment is required, see our factsheet: supporting European Economic Area (EEA) residents who are destitute or at risk of homelessness.
What is the impact of the end of the grace period on local government?
Councils may receive enquiries from concerned residents about their entitlements, with some groups at risk of destitution and homelessness if they are unable to work or claim benefits. Councils are also likely to experience additional pressures on services when accommodation and financial support needs to be provided whilst people are making late applications to the EU Settlement Scheme or are waiting for the decision on an 'in-time' application, or whilst people are unable to rely on a grant of pre-settled status to qualify for means-tested benefits. This impact on local government has been recognised in a recent report on local authority delivery on the EU Settlement Scheme by the EU Rights Hub.
Any delays in obtaining settled or pre-settled status will add to pressures on local government, so the backlog of outstanding EU Settlement Scheme applications (currently around 570,000), and the lack of funding for community advice services after September, is concerning. Councils will also be interested in the outcome of the Fratila case, as people with pre-settled status who are unable to work and access benefits may need to be supported by social services until they qualify for settled status, which could be in just a few months or over four years' time.
We will continue to work with sector partners to raise concerns and evidence these impacts with central government, using NRPF Connect data to evidence cost pressures and any changes in demand for support. Councils are encouraged to use NRPF Connect to obtain accurate information from the Home Office about an EEA national's immigration status when a person or family is being assessed for support from social services, and to make us aware of any challenges they are experiencing when providing assistance to EEA nationals and their family members.