Written evidence from the3million CLP0026

the3million was formed after the 2016 EU referendum to protect the rights of EU citizens who have made the UK their home. Our work includes monitoring the implementation of the Withdrawal Agreement, and informing people of their rights. For more information see www.the3million.org.uk. 

We would like to make a short submission to the call for evidence on Cost of Living Support Payments, focusing on the ability of those we represent to fulfil the eligibility criteria.  This is in answer to questions 2 (a) and 2(e) of the call for evidence.

2(a): Passporting

Pre-settled status under the EU Settlement Scheme

Pre-settled status under the EU Settlement Scheme [EUSS] is Limited Leave to Remain granted under Appendix EU of the Immigration Rules.

Pre-settled status is granted to those who are eligible for status under the EUSS but who do not yet have, or who cannot evidence, five years of continuous residence in the UK. Those eligible persons who can evidence five years of continuous residence are granted settled status.

Although pre-settled status is clearly a right to reside (live, work and study) in the UK, it is not treated as a right to reside for benefit purposes. 

People with pre-settled status do not have an explicit “No Recourse to Public Funds” (NRPF) condition attached to their immigration status.  Instead, regulations were passed in May 2019 (The Social Security (Income-related Benefits)(Updating and Amendment)(EU Exit) Regulations 2019[1]) which expressly exclude pre-settled status from being a relevant right to reside for the purposes of establishing habitual residence. It achieved this by amending the various benefit regulations, for example the Universal Credit Regulations 2013[2], where Regulation 9(3)(c) was inserted, adding rights obtained via status under the EUSS to the list of rights which are not considered a right to reside for establishing habitual residence.

People with pre-settled status therefore cannot simply satisfy the Right to Reside part of the Habitual Residence Test by showing their pre-settled status. Instead, they must try to demonstrate an alternative right to reside, under the legacy EEA Regulations. This involves a great deal of complexity and a very high evidential burden, especially for vulnerable people with, for example, a work history of working on zero-hour contracts, often not in receipt of sufficient documentation evidencing the work. There is added complexity around establishing whether someone’s work is “genuine and effective work”.

the3million disagrees with this policy, and considers that all those who were granted status under the EUSS have rights under the Withdrawal Agreement (WA), as per Article 18(1) of the WA which states “The host State may require Union citizens [...], their respective family members and other persons, who reside in its territory in accordance with the conditions set out in this Title, to apply for a new residence status which confers the rights under this Title”.  These rights include rights to equal treatment (Article 23) and non-discrimination (Article 12).

All this results in around 3,500 refusals of Universal Credit applications per month[3] from EU citizens with pre-settled status. At various times during the COVID pandemic, the number was over 11,000 a month[4].  A large number of these refusals are challenged and often overturned by the courts.

This resource-intensive policy wastes a large amount of time for DWP decision makers (due to the complexity of establishing habitual residence), and substantial court costs. It also means that vulnerable people are excluded from basic living support.

It is worth noting that this same cohort was excluded from Universal Credit payments during COVID and therefore likely became more vulnerable to destitution due to the pandemic.

The exclusion of certain pre-settled status holders from benefits is akin to a hidden form of NRPF. Furthermore, unlike with explicit NRPF, there is no provision in the rules for the Secretary of State to set aside the restrictive condition for holders of pre-settled status. With explicit NRPF, the immigration rules say that a NRPF condition may be disapplied if “(i) the applicant is destitute as defined in section 95 of the Immigration and Asylum Act 1999, or at risk of imminent destitution; or (ii) there are child welfare reasons that outweigh the rationale for imposing the NRPF condition.”[5]

This cohort of excluded people with pre-settled status are therefore automatically excluded from the Cost of Living Support Payments.

Pending applications under the EU Settlement Scheme

The situation for those who are eligible for status under the EUSS but are still waiting for a decision is even worse.

Article 18(3) of the Withdrawal Agreement states “Pending a final decision by the competent authorities on any application referred to in paragraph 1, and pending a final judgment handed down in case of judicial redress sought against any rejection of such application by the competent administrative authorities, all rights provided for in this Part shall be deemed to apply to the applicant, including Article 21 on safeguards and right of appeal, subject to the conditions set out in Article 20(4).”

Leading up to the EUSS deadline of 30 June 2021, the Home Office insisted that any applications submitted after this deadline would result in late applicants not having any rights until their application was finally decided, despite consistent advocacy efforts on the part of the3million and other organisations. The Home Office only changed its position on this on 6 August 2021 - see this news story on Gov.UK[6]. However, despite repeated calls, it has not introduced any legislation to implement this decision, instead stating that people can rely on the “direct effect” of the Withdrawal Agreement.

It is not fair or reasonable to expect individuals, or indeed small advice organisations, to have to argue “direct effect” of an international treaty to DWP decision makers. Many are not in a position to do so, and consequently remain unable to access their rights.

To make matters worse, there is confused and conflicting guidance around the rights of those with pending applications.

We have written to the Home Office and the Department for Work and Pensions on a number of occasions about this, and summarise this correspondence here:

●        15 April 2022 - joint letter[7] with Rights of Women, Coram Children’s Legal Centre, Law Centres Network, New Europeans, Roma Support Group, East European Resource Centre, Glassdoor and Greater Manchester Immigration Aid Unit to the Home Office Safeguarding User Group. This letter called for policies that relate to those with pending status to be reviewed and updated, and cites that the DWP “has not updated any regulations governing access to welfare benefits and other entitlements that are conditional on habitual residence / right to reside.”
 

●        8 June 2022 - reply[8] from the Home Office Safeguarding User Group, stating that, with the exception of some amended regulation (regarding right to work, right to rent), “The Government has no plans for further regulations at this stage”.
 

●        18 August 2022 - joint letter with EU Rights & Brexit Hub[9] which supplied lots of examples of vulnerable citizens denied access to benefits while their EUSS applications were pending. This letter has not received a reply, and no action has been taken as a result of the letter.
 

●        28 April 2023 - letter[10] to the Home Office setting out many areas of difficulty for those with pending applications under the EUSS. Page 4 includes a section on accessing Universal Credit and other benefits.  The letter, on page 2, also lays bare the scale of the problem, noting that as at September 2022 over 41,000 people had been waiting for an EUSS decision for over 12 months (of which over 7,000 had been waiting for more than 24 months).

This cohort of people with pending applications are on the whole excluded from the Cost of Living Support Payments, because of their difficulty being granted universal credit or other benefits.

2(e): Other technicality in need of investigating

Being disadvantaged by Social Security Coordination regulations

Some people living permanently in the UK, with status under the EUSS, can be excluded from receiving benefits from the UK as their EU member state of origin is considered to be the ‘competent state’ under Social Security Coordination Regulations.

This can lead to people who might otherwise be eligible, being excluded from cost of living support payments.

An example of this, as received by the3million from an EU couple, is shown below:

“Both me and my wife (as well as our 2 year old) are [EU country] citizens living in Scotland.

We are both disabled and unfortunately unable to work as a result of it. The [EU country] government pays us an Occupational Disability Benefit.

As I understand from the Withdrawal Agreement, specifically section 31 of which itself refers to the European Regulation on the Coordination of Social Security Systems. Article 5 of said Coordination states disability benefits from one country ought to be treated as equivalent (and thus confer the same passporting rights) as disability benefits from another country. And article 44 states that whichever country we became disabled in remains responsible for those benefits nor are we allowed to switch those benefits to a new country voluntarily.)

Social Security Scotland has determined that our Dutch benefits are equivalent to ESA(Income Related) and therefore has granted us the Scottish Child Payment to which recipients of ESA(IR) are automatically entitled.

The Department of Work and Pensions however states that "I should explain that the [EU Country] Occupational Disability Benefit is not treated as a means-tested benefit in respect of the Cost of Living Payment." which we therefore miss out on.

This is quite a lot of money, especially with a second payment having been announced in the latest Autumn Budget.”

This is a concern that has received some negative press coverage in recent months and is an issue that we anticipate will continue to recur unless fully addressed.

May 2023