Lost in dissemination – Unpicking pending EUSS applications and accessing benefits?
The end of the Grace Period on the 30th June 2021 brought with it the deadline for the EU Settlement Scheme (EUSS) and the falling away of the old regime of EU free movement law for EEA nationals to establish residence rights and access to services in the UK. Over six months later, there are still 328,070 applications yet to be decided, of which 105,600 are ‘late’ applications. While a small number of these will be applications looking to upgrade to settled status, the majority of these hundreds of thousands of individuals will be waiting on the Home Office to process their application and award them with their first status. During this time, their ability to access essential services such as welfare benefits and housing relies on a mangled collection of contradictory or non-existent legislation, press releases and decision maker guidance.
What does the UK legislation say?
As it stands the Citizens’ Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020 states that those who have made an in-time application for the EU Settlement Scheme (EUSS) but are awaiting a decision on their application or appeal can continue to establish a qualifying right to reside in the same way as before the end of the Grace Period (under the EEA Regulations 2016) to be eligible for welfare benefits and housing providing that they had a lawful right of residence under the same rules on 31st December 2020.
There are no such provisions for those who made their applications after 30th June 2021. In the UK legislation at least, it appears as though anyone who has made a late application must wait until their application has been decided before they have a route to access means-tested welfare benefits and housing. Individuals who have made a late application therefore face a significant status gap.
Article 18(3) of the Withdrawal Agreement, which has direct effect in the UK, states that the rights provided for in part 2 of the agreement, including protection from discrimination, shall be deemed to apply to applicants pending a final decision. It has no conditions attached to this continued protection and does not distinguish between ‘in-time’ and ‘late’ applications.
It is possible that the government intends to rely entirely on the rights in the Withdrawal Agreement to cover this status gap, but this doesn’t explain why they felt the need to introduce regulations for those with pending ‘in-time’ applications, nor why they decided to lay new regulations before parliament in March 2022, recognising the rights of those who have a certificate of application, whether their application was in-time or late, to work and rent in the UK (The Immigration (Restrictions on Employment and Residential Accommodation) (Prescribed Requirements and Codes of Practice) and Licensing Act 2003 (Personal and Premises Licences) (Forms), etc., Regulations 2022).
The commitment to temporary protection
In recognition of this potential status gap, on 6th August 2021, a press release from the Home Office stated that temporary protection would be introduced for those who make applications to the EU Settlement Scheme after 30th June 2021. The press release references the rules for those waiting for an outcome on their EUSS application as an example of how these temporary protections would work. The statement does not give clear information on how the change will be implemented, only that “[f]urther details will be published in due course.”
In September 2021, Chloe Smith MP responded to a parliamentary question that “those covered by the Withdrawal Agreement who submit a late application to the EUSS will also be able to access benefits and services, if they are eligible, from the point their application is validated, and identity has been verified”
So far, there have been no changes to regulations to implement these ‘temporary protections’ in relation to accessing benefits.
Mixed messaging - What has happened since the press release
Since the press release in August there has been a drip feed of at least three different guidance documents released over a period of three months explaining how decision makers should treat those with pending applications, whether on-time or late. Confusingly, each of these documents appear to suggest different requirements and standards that should be applied to applicants.
Home Office Guidance - 20th August 2021
The first update arrived in the Home Office guidance on ‘Migrant access to public funds’ (updated on 20th August 2021). This stated that in the case of pending applications for both in-time and late applications, once an application has been validated, the applicant can access benefits and services ‘subject to eligibility’. This includes where they ‘can demonstrate they are exercising a qualifying right to reside, such as having worker or self-employed status.’ So far so good, as far as following the regulations go, rather than complying with the Withdrawal Agreement.
However the guidance also introduces an entirely new consideration, that ‘Persons who can show that they have been residing in the UK for more than five years (and who are expected to be granted settled status) are eligible to access benefits (subject to eligibility) on the same basis as any other British citizen.’. It doesn’t explain how individuals can demonstrate that they are being considered for settled status, or how decision makers should assess this.
Local Authority Bulletin on housing benefit - 7th October 2021
Next, in early October, guidance was issued for local authorities making decisions on housing benefit. This explains that decision makers should treat anyone with a certificate of application in the same way, regardless of whether the application was late or not. However, this guidance is not clear on whether decision makers should seek to establish a qualifying right to reside in these circumstances, stating only that those with in-time applications can ‘retain access to HB’ or ‘continue to access’, suggesting that they may be required to continue to meet the same requirements as before the end of the Grace Period, but this is not explicitly stated and the guidance contains no reference to a ‘qualifying right to reside’ or other eligibility criteria.
Universal Credit ADM Memo 19/21 - 19th November 2021
Finally, the Universal Credit advice for decision makers received an update (Memo 19/21) on 19th November 2021, addressing late applications. Once again, this guidance appears to offer a unique set of rules. This is the first of the guidance to state that those pending applications are ‘protected by the Withdrawal Agreement’.
Curiously, the memo appears to treat those with an ‘in-time’ pending application less favourably than those with a late pending application. According to the memo, those with a pending in-time application can “access benefits as they did before the end of the grace period.” This would suggest that decision makers would require these individuals to have a certificate of application and to demonstrate an additional right of residence in the EEA Regulations 2016.
For late applicants, however, the memo only says that “...they can access benefits, from the date they made an application which has been validated”. The only requirement for those with pending late applications appears to be that they can demonstrate that their application has been validated, presumably with a certificate of application. There is no mention of those with late applications having a qualifying right of residence or that this access is ‘subject to eligibility’, though it is unclear how this is operating in practice. The guidance mentions whether the claimant falls into the scope of Article 10 WA (i.e. have had a right to reside in the UK at some point before the end of transition and continue to be resident in the UK), but there is no detail on how decision makers should approach this issue.
Collectively, this piecemeal and sporadic guidance appears to suggest that different bodies will be taking different approaches to EEA nationals with pending applications. It is telling that not a single source of law, press release or guidance accurately reflects the others and while the differences may be slight, they can result in very different interpretations.
Press release to law - Delays, confusion and legal wastelands
The differences in these documents may appear slight but, if applied as they are written, will result in vastly different approaches depending on which guidance is picked up and referred to. At worst individual may be wrongly refused access to benefits and services while they are stuck in the Home Office backlog. At best, many will likely be misled about their rights and may not be aware of what they are entitled to.
The delay to publishing up-to-date guidance left 5 months of tumbleweed for those waiting on both their EUSS status and an application for benefits or housing. This, alongside the strong messaging of the rights of EU nationals in the UK falling away after 30th June 2021, likely caused significant confusion and disruption among applicants, advisers and decisions makers. It is not a surprise that the EU Rights and Brexit Hub clinic has had to provide second tier advice and support with challenging errors in decision making for those with pending applications during this time.
Secondly, the contradictory guidance means that consistent and accurate decision making seems unlikely. Those who will need to challenge these decisions will be faced with trying to rely on law- through-press release and the pick and mix approach of the guidance to establish exactly what their rights should be. It is unclear how a tribunal will treat the press release and guidance alongside the unchanged regulations, or whether they would turn to the Withdrawal Agreement. This problem is part of a wider trend, highlighted in a previous blog, of the rift between what the law says and practice. Such an approach leaves the rules in disarray. Decision makers lack accurate and clear information, while advisers try to unpick the tangled layers of law and guidance. In the meantime, those impacted struggle to navigate their rights in the UK while at the mercy of the trundling Home Office backlog.
