The 19th IMISCOE Annual Conference

Charlotte O’Brien and Alice Welsh are presenting their paper on ‘The misrule of non-law: guidance, press releases and rumours determining EEA nationals' access to welfare in a post-Brexit UK’ as part of a panel on ‘A legal approach to welfare and migration governance’ in the ‘Street-level bureaucrats and immigrants’ access to welfare’ session.

See event details on the IMISCOE website

Abstract:

The misrule of non-law: guidance, press releases and rumours determining EEA nationals' access to welfare in a post-Brexit UK

Charlotte O’Brien and Alice Welsh

Brexit has triggered an upheaval in the legal landscape of EEA nationals' welfare rights. In an already complex and error-strewn field, street level bureaucrats are now faced with multiple parallel rights regimes, depending status under the EU Settlement Scheme, the time of their application and for family members, on the situation of the rights-holder on which they rely.

Legislative instruments and amendments have been flying off the shelves, several subject to, or liable to become the target of, high level litigation, challenging compatibility with EU law and the Withdrawal Agreement. In such circumstances, decision-maker guidance assumes an elevated status, supplanting the impossible-to-follow law. And the State has increasingly treated changing the guidance as an alternative to amending the law - and in one case attempting through guidance alone to un-quash regulations quashed by the Court of Appeal.

Some unworkable rules laid down in regulations are to be largely ignored, according to reports from closed meetings with government officials, while other policies, affecting legal rights, are given effect through press releases with no accompanying legislative actions.

As a result of this informal, incoherent approach the guidance on which street level bureaucrats rely is plagued with contradictions, inaccuracy and confusion.

Utilising case studies from the legal action research clinic at the EU Rights and Brexit Hub, this paper highlights some of the extraordinary experiences of EEA+ nationals attempting to access to welfare and public services in the UK, reflecting on the heightened risks of administrative injustice in periods of significant legal transition.