Template skeleton for Pre-settled status and access to benefits
This template is currently in the process of being updated after the UT judgment in SSWP v AT [2022] UKUT 330 (AAC). In the meantime, please get in touch with us at law-eurightshub@york.ac.uk for second-tier advice on this issue.
Today, the Hub launches its new template skeleton argument to assist advisers when trying establish eligibility for benefits for EU nationals and their family members with pre-settled status but no other qualifying right to reside.
The template may be (or any part of which may be) useful at the point of mandatory reconsideration and appeal, when representing a client who is relying solely on their pre-settled status as a qualifying right to reside to access benefits. This template addresses claims relating to periods after the Brexit transition period ended on 31 December 2020 (please contact us if you have queries about drafting arguments for claims relating to periods before then).
We have received a lot of queries about the rights of people with pre-settled status to claim benefits, and queries from advisers trying to understand the implications of Fratila. Our key take-away point is that Fratila does not close off the possibility of accessing means-tested benefits as a person with pre-settled status.
First of all, please explore and outline any rights to reside that the client may be able to demonstrate under the Immigration (European Economic Area) Regulations 2016, such as:
a worker/self-employed person,
someone with retained worker status
someone with entitlement to permanent residence rights under the 2016 EEA regs either through a continuous period of five years having a right to reside or through some of the shorter routes to permanent residence (see regulation 15).
a family member of an EEA national exercising treaty rights.
Once you have outlined any such avenues to a right to reside, it is *also* worth outlining arguments based on pre-settled status in addition to, or in the alternative to, those arguments. In brief, these are arguments are that EEA nationals with pre-settled status are entitled to rely on non-discrimination rights within the Withdrawal Agreement, and that the CJEU case of CG, in combination with the Withdrawal Agreement, obliges the DWP to consider potential infringements of a client’s fundamental rights before refusing them benefits such as Universal Credit. These arguments are different from those raised in Fratila which relied on the rights in TFEU (an EU Treaty for Member States) not the Withdrawal Agreement.
Thanks to Martin Williams, from CPAG, and Luke Piper, of the3million, for their input. You may also find it useful to consider the arguments put forward by CPAG on their website.
Please do let us know if you find this guide/template useful, and please do not hesitate to contact the EU Rights and Brexit Hub for support with drafting, advice for the specific case you are working on or with any questions at:
law-eurightshub@york.ac.uk