Out of the frying pan…? Legal action research into EEA nationals’ access to welfare support during the transition and beyond.

Out of the frying pan…? Legal action research into EEA nationals’ access to welfare support during the transition and beyond

Charlotte O’Brien and Alice Welsh (University of York)

Even before the referendum, EEA nationals and their family members faced a host of complex legal and administrative obstacles accessing their welfare rights. As we near the end of the transition phase of Brexit and the end of free movement, we are about to enter a system of multiple parallel immigration regimes, each involving different welfare entitlements.

The EU Rights and Brexit Hub seeks to investigate the barriers to justice which arise during and after the Brexit transition period. We have set up a legal action research clinic which provides free specialist second-tier advice and drafting support on EU rights and access to welfare benefits and other public services for charitable organisations and other groups working with EU/EEA nationals and their family members. Through this, and a parallel advice-led ethnography documenting the cases we encounter, the project asks: how well are EU nationals’ rights protected? Do they face administrative obstacles or discrimination when accessing public services? How are EU rights asserted (or jeopardised) in post-EU law?  

The EU Settlement Scheme, intended to secure the rights of EU/EEA nationals (and their family members) who have exercised/exercise their free movement rights to move and reside in the UK before the 31^st of December 2020, awards ‘settled status’ to EU nationals resident for at least five years, and ‘pre-settled status’ to those resident for less than five years. The scheme presents a number of potential problems for EU nationals seeking to access welfare support. This blog notes in particular obstacles arising from (i) the limits to rights attached to pre-settled status, and (ii) delays in acquiring a status; both raise troubling questions of fairnes

Pre-settled status and access to welfare

There may be a substantial number of people who should get settled status being ‘awarded’ pre-settled status. For some, this may appear to be a successful result of their application – it is not a ‘refusal’. However, it is an inferior status for two main reasons; the first is that it is temporary, and will run out after five years – rather kicking the administrative can of chaos down the road. The second is an important difference in access to welfare rights.

A grant of settled status, where an individual has been resident in the UK for 5 or more years, provides a right to reside in relation to access to welfare benefits such as Universal Credit. However, as it stands grants of Pre-Settled status does not (although R (Fratila & Tanase) v SSWP, heard in the Court of Appeal in October 2020, concerns a challenge to these rules). This means that those with pre-settled status must continue to establish a ‘right to reside’ through the Immigration (EEA) Regulations 2016 to be eligible for welfare benefits on the same basis as UK nationals (provided these regulations are extended after The Immigration and Social Security Co-ordination (EU Withdrawal) Bill has passed).

Under these regulations, EEA nationals still face significant barriers to accessing welfare support as identified by the EU Rights Project, a legal action research project conducted between 2013-17. This included significant barriers to justice through ‘declaratory discrimination’ faced by EEA nationals, decision maker error, insufficient decision maker guidance and a particular disadvantage faced by women and children. It is likely that these barriers will persist and be exacerbated for all EEA nationals given that risks to administrative justice can become more acute in periods of legal transition, especially as for several years to come, there will be overlapping and differing rules for EEA migrants and their families.

Delays

Delays in the EUSS can also cause significant hardship for those relying on their long-term residence to access rights in the UK. Receiving ‘settled status’ can be a vital route to establishing welfare benefit eligibility for those who may struggle to meet the complex and sometimes discriminatory right to reside requirements, especially where meeting these requirements demands deriving a right to reside from an EEA family member, leaving those with estranged family members or victims of domestic abuse at risk. Statistics from a Freedom of Information request showed that in October 2019 over 30,000 EUSS applications had already faced delays of over 3 months, around 3,000 of these waiting over 6 months. While these delays persist, the ability to rely on their status under the scheme to access services in the UK is also put on hold. Already, the Hub has seen an applicant to the EUSS who, despite having resided in the UK for 7 years, had waited over a year for a decision to grant her settled status. During this year, she was refused Universal Credit twice and had no access to this support for herself and two children.

These are just a couple of the obstacles to justice which are being investigated by the EU Rights and Brexit Hub through its free second-tier advice clinic. Unfortunately, it is likely that there will be more as the Brexit transition period progresses. Alongside the clinic, the EU Rights and Brexit Hub is conducting political interviews with MPs and Peers; MEPs; NGOs and key governance stakeholders on problems faced by EU nationals accessing public services and analysing statistical data on variables that affect EU nationals’ access to public services. To find out more information about the project and, if you wish to  how to make a referral visit our referral page.