Several recent updates impact the rights of pre-settled status holders in the UK. These include:
- The Home Office introducing an automatic five-year extension of pre-settled status
- Changes to how immigration status is viewed by employers and landlords
- The High Court widening eligibility for Universal Credit for some people with pre-settled status who do not have a qualifying right to reside
- Ongoing litigation as to whether people with pre-settled status, who do not have a 'qualifying right to reside', may be eligible for homelessness assistance
We explain these developments and the impacts and considerations for local authorities.
Automatic extension of pre-settled status
Under the EU Settlement Scheme (EUSS), pre-settled status is granted for a period of five years, initially requiring individuals to then apply for settled status once eligible (after five years of continuous residence in the UK). However, following a High Court judgment, the government published new rules in July 2023 confirming that those with pre-settled status will have their status automatically extended by a further two years. In May 2024, the Home Office confirmed that this extension has been increased to five years. This change aims to provide a more secure grace period for pre-settled status holders to regularise their stay and minimise the risk of anyone failing to acquire permanent residence before their status expires.
The Home Office has stated that it is working on plans to implement a system for the automatic conversion of pre-settled status into settled status where eligible, as the High Court outlined that it would be unlawful to require individuals to apply again through the scheme to obtain permanent residence in the UK. There are no further details on how and when this system will become operational.
Additionally, expiry dates for someone’s pre-settled status will no longer be visible to employers or landlords when checking a person’s digital status. This is intended to decrease the risk of individuals experiencing discrimination in access to employment or housing, and consequently financial insecurity and homelessness.
Universal credit and pre-settled status
Following the outcome of recent litigation, some people who have pre-settled status but are without a qualifying right to reside may now be able to access Universal Credit. While settled status holders do have access to benefits, those granted pre-settled status are only permitted to access certain benefits including Universal Credit, if they can establish that they have a qualifying right to reside, or if they are a family member of an EEA national who is a ‘qualified person’. Please see our information on welfare benefits and EEA nationals.
Under SSWP v AT (Aire Centre and IMA Intervening) [2022] UKUT 330 (AAC), a refusal to provide Universal Credit to someone with pre-settled status who does not have a qualifying right to reside under the EEA regulations may be unlawful in some circumstances, such as when the person is at risk of destitution, is unable to work, or is unable to access support elsewhere. This case concerned a family that was not provided with support under Section 17 of the Children Act 1989 by their local council and considered whether the availability of this support affected their eligibility for benefit. Although the judge suggested that eligibility for benefits should be decided on a case-by-case basis, it appears unlikely that Universal Credit would be awarded when Section 17 support is being provided or is available. However, the theoretical possibility that the local authority may have a statutory duty to provide support should not prevent individuals from accessing Universal Credit if such support is not in place. The Department of Work and Pensions has updated its guidance, outlining that where an applicant does not have a qualifying right to reside, the decision maker must establish whether the person is unable to ‘meet their most basic needs’.
Homelessness assistance for pre-settled status holders
Eligibility for homelessness assistance in England for pre-settled status holders also requires that people demonstrate that they have a qualifying right to reside under the EEA regulations. Two recent County Court judgements have ruled that pre-settled status holders without a right to reside should still be eligible for homelessness assistance under the Housing Act 1996, whilst a third judgement deviates.
Hynek v. Islington (HHJ Backhouse, 12 July 2022) and C v Oldham [2024] EWCC 1 both acknowledge the judgement in SSWP v AT on access to Universal Credit for pre-settled status holders. Both decisions affirm that a person’s equal treatment rights should be protected by the UK-EU Withdrawal Agreement, and that this should also apply to housing assistance.
However, in the more recent Fertre v Vale of White Horse District Council [2024] EWHC 1234 case, the judge ruled that ‘equal treatment’ under the Withdrawal Agreement would not be satisfied simply by having ‘pre-settled status’ without other conditional rights also engaged. Litigation is ongoing as this decision is being appealed.
In light of the continuing case-law developments, housing authorities must seek advice from their legal teams before finding applications from pre-settled status holders, who have no right to reside, ineligible.
Implications for councils
These developments will impact the assistance councils provide to people with pre-settled status and influence the responses of both social care teams and housing services. Councils will need to consider:
(1) The extent that these changes will prevent homelessness and destitution
These developments are positive for people living with pre-settled status. The automatic extension of pre-settled status and changes to digital status will help protect people’s status and rights in the UK.
While the AT case could mean more people are able to access Universal Credit, the County Court decisions show that housing authorities may be able to safeguard some people from street homelessness where they do not have a qualifying right to reside. However, these changes do not go far enough in terms of preventing destitution as access to key benefits like Universal Credit for pre-settled status holders are still not available to all in the first instance.
As a result, there will still be some instances where social care services may need to provide accommodation and financial support to families and adults with care needs whilst access to benefits or homelessness assistance is being established or has been denied. Local authorities can refer to our detailed guidance for councils to understand how their statutory duties apply and to assist them in safeguarding the needs of families or adults with care needs.
(2) How these changes affect the provision of social care support for families and adults with care needs
In the past financial year, councils have spent £82 million supporting adults and families with no recourse to public funds. EEA nationals and people with an EEA-related status make up a significant proportion of those supported, accounting for 13% of adults with care needs and 18% of families with children.
Despite the changes for people with pre-settled status, potential budget management challenges remain as councils cover the costs of subsistence and accommodation provision to support to people living with no recourse to public funds where there is a statutory duty to support. However, if more people are able to access Universal Credit, this could reduce the need for local authority intervention thereby mitigating some of these costs. As local authority statutory duties continue apply when there is a child in need or an adult with care and support needs, there will still be instances where councils may have to provide support, such as where a person has been refused benefits or is waiting on a benefit decision.
When support is provided, councils will need to consider how to help a person with pre-settled status establish a route out of this support and help them to achieve this. Although the Home Office has announced new status protections, pre-settled status holders who are being supported by social care teams will still need to be assisted to regularise their stay through facilitating access to immigration legal advice and applying for settled status when eligible (usually after 5 years residence in the UK). While the decision to automatically extend pre-settled status for five years will provide a safety net ensuring that individuals are not left without status at the end of their grant of pre-settled status, there is currently no process in place for the automatic conversion of their status to settled status, so supported individuals will still need to apply through the scheme at present. NRPF Connect members should be able to benefit from direct contact with the Home Office over processing times and updates for any outstanding application. See our guidance page on immigration and entitlements for EEA nationals for more information.
Where councils are providing support, social care teams should also continue to facilitate access to any additional assistance that may help alleviate financial insecurity such as through support accessing employment, applying for government childcare schemes, free school meals, and any other schemes that may be available to people without access to public funds.
While these developments may reduce the need for local authority intervention in some instances, there will still be cases that do require local authority support. As a result, costs for councils cannot be entirely avoided. Policy and funding solutions that we have recommended must be implemented urgently in order to reduce homelessness and destitution when people are excluded from benefits, and to reduce financial pressures on councils when people with no recourse to public funds, including pre-settled status holders, are provided with accommodation and financial support. It is therefore essential that councils fully record the support they are providing to families and adults with care and support needs on NRPF Connect. Local authority social care teams that need access to NRPF Connect or training on using the system can contact us.
This article was originally published on 7 August 2024 and has since been updated to reference the Fretre case.