By Olivia Vicol and Emma McClelland - 15 December 2021
Earlier this month, the Supreme Court ruled that the government is free to discriminate against EU benefit claimants who hold pre-settled status in the UK, upholding restrictions introduced since 2019. With the potential for legal challenges reduced to a minimum, and vulnerable claimants at risk of being excluded from many of the main benefits in the UK, campaigners for equality warn that getting the right benefits advice is more important than ever.
The background
The dispute over the rights of EU citizens with pre-settled status is a complex one, to say the least.
Back when the UK was still a member of the European Union, EU migrants and their family members could reside in the country under a relatively restrictive set of conditions inscribed in EU law (the most common one being as workers, but also as jobseekers, students, and self-sufficient migrants, on condition they had something called Comprehensive Sickness Insurance). Despite what some sectors of the press would lead us to believe, claiming income-benefits was never easy. Unless they lived in the UK for five years and acquired permanent residence, claimants had to prove that they were either in genuine and effective employment or, failing that, demonstrate that they qualified on the basis of a disability, a family relation, or other entitlements which, for most people, are difficult to grasp.
Brexit changed the notion of residence - and with it, reconfigured EU migrants' access to benefits. The EU Settlement introduced in 2019 to give EU citizens a status in the UK, made the criteria for residence more generous than they had been under EU law. Surprisingly for many, the EUSS granted resident status not on the basis of work (or the stricter criteria for self-sufficiency inscribed in EU law), but simply on the basis of being in the UK before the end of freedom of movement on 31 December 2020. Those with five years of residence were given settled-status, or an indefinite leave to remain. Those with less than five years were given pre-settled status, or a limited leave to remain which expires and must be renewed. You'd think that access to benefits got easier as well. Only it didn't.
In 2019 the government argued that, despite widening what it means to have a right to reside, it never meant to make access to benefits more generous. The DWP thus required claimants with pre-settled status to prove an additional right to reside, reverting to the restrictions applicable under EU law. Campaigners challenged it, and won in the Court of Appeal. To give everyone a right to reside under domestic law, then ask some people to pass additional requirements, they argued, was a form of direct discrimination. More worryingly, Prof. Charlotte O'Brien argued, it sets a dangerous precedent across the EU. Alas.
In December this year, the Supreme Court ruled that the government is free to discriminate against people with pre-settled status. Citing the EU Court of Justice, which ruled in a similar case in July, judges at the Supreme Court noted that benefit claimants with pre-settled status are not covered by Article 18 of the Treaty on the Functioning of the European Union, which prohibits descrimination on the basis of nationality. Instead, they are covered by Article 24 of the Parliament and Council Directive 2004/28/EC (the Directive), which states that EU citizens can claim equal treatment in respect of social assistance only if they meet residence criteria as workers, self-employed professionals, or jobseekers with the genuine chance of being engaged.
What does this decision mean?
In practice, the judgement of the Supreme Court does not make things harder for claimants with pre-settled status than they already were. But it does leave them considerably fewer options for legal challenge. Simply put, it seals the deal, and not in favour of poor migrants. It also affects the benefits advisers, charity professionals, and the diverse world of community leaders who find themselves called upon to help demystify the arcane world of benefits entitlements. If anyone was hoping that judges would rule in favour of claimants and simplify things, that decision did not come.
This is why it's more important than ever to understand who is at risk, and where to access the expert support to navigate the complex set of eligibility criteria for people with pre-settled status.
Who is likely to struggle when accessing income-based benefits?
Women
Despite some progress in gender equality, the responsibility for bringing up children still falls more heavily on women, who may not engage in paid work in order to fulfill this non-paid caregiving role.
"The privileging of 'active' EU citizens puts women at a disadvantage since unpaid caring responsibilities frequently result in interruption to paid employment," notes Benjamin Morgan, Research and Communications Coordinator at the Public Interest Law Centre. "Female EU citizens living in the UK are more likely than male counterparts to do unpaid, low-paid or informal work that may lead to their being excluded from 'worker' status. Paid work done by women may be more likely to be assessed as 'ancillary and marginal' rather than 'genuine and effective'. This issue is compounded by the 're-privatisation' of caring and other 'socially reproductive' work in the context of the rollback of the welfare state."
The judgment may also have severe consequences for single parents and those who become destitute as a result of domestic or intimate-partner violence or abuse, and who will struggle to affirm their eligibility for benefits on the basis of a family relation.
Homeless people, carers and the disabled
"People who haven't worked in the UK, or haven't worked recently, are likely to be disabled people, homeless people (or those with a history of homelessness), carers and other vulnerable groups," explains benefits expert Will Hadwen. "Sometimes it's just not possible to find a link to work through the claimant themselves or their family members in the UK. That means not being able to claim these subsistence benefits, with a risk of complete destitution as a result."
"There are still people in homeless shelters and hostels who are yet to receive a decision on their EUSS applications, and some who haven't applied", added Anna Yassin, Migrant Project Manager at the homelessness charity Glass Door. "The reasons are extremely complex, and can involve things like a history of domestic abuse, exploitation, and mental health challenges. But while frontline organisations do everything possible to support them, the fact that at structural level they are all but excluded from income-based benefits, has made everyone's work much more difficult".
Precarious workers
"Asking someone to prove a history of genuine and effective employment before they can receive any income-based benefits will disadvantage those who work precariously in the gig economy, and who lack the formalities or even the regular work hours, to prove it," Vicol notes.
This, Morgan explains, is also likely to have racialised implications. "The Supreme Court's judgment in Fratila will have particularly grave implications for [...] working-class EU citizens from Central and Eastern Europe and EU citizens and non-EU family members who may be racialized as non-white."
Due to structural factors, both of these groups are at disproportionate risk of poverty - including insecure and inadequate housing or rough sleeping. They may also be more likely to have been awarded pre-settled rather than settled status even where they have lived in the UK for more than five years and therefore qualify for the latter.
"Such EU citizens (and non-EEA family members) who work at the hyper-exploitative low end of the UK labour market may find it more difficult to prove that their work is 'genuine and effective' - one of the extra conditions that, as a result of this judgment, people with pre-settled status may continue to have to meet in order to claim most benefits," explains Morgan.
What could happen as a result?
The implications of the Supreme Court's decision are pernicious. "Not being able to claim most benefits will expose affected EU citizens and non-EEA family members to increased risk of destitution and associated abuses such as sexual exploitation, trafficking and modern slavery," explains Morgan. "This decision is also likely to result in more EU citizens and non-EEA family members with pre-settled status turning to social services for support (e.g. under the Children Act 1989 or Care Act 2014), increasing the cost burden already faced by underfunded local authorities."
The decision also presents frontline organisations with a momentous challenge. "I'm worried that the level of complexity inherent in the eligibility criteria for people with pre-settled status will put them off applying, or lead to erroneous decisions, and they won't even be able to recognise those," adds Vicol. "There is a real risk that charity and community advisers who are already overstretched may not give the right advice and that would be tragic, as they'd effectively be reproducing the very exclusion campaigners have tried so hard to challenge".
What are our options?
Stay informed. In the short term, it is more important than ever to know when to contact a welfare benefits expert. The Supreme Court decision makes claiming income-based benefits harder for people with pre-settled status, but not impossible. The best thing anyone can do, if they work in a frontline capacity, is to familiarise themselves with the eligibility criteria, recognise what they can and cannot advise on, and build the necessary referral relationships with benefits experts who have the capacity to recognize when someone has been unfairly rejected.
Remember other sources of support. "It is worth remembering that other benefits can still be claimed," says Hadwen. "For example, child benefit can be claimed if you can show that you have jobseeker status, and other benefits - such as contribution-based benefits - are not affected by the right to reside test. If your circumstances change, it's also worth seeking advice because you might be able to claim when you couldn't before."
If you are refused, seek legal advice. "Anyone refused benefits can continue (and often should) seek legal advice about the possibility of challenging the refusal through a mandatory reconsideration request and, where appropriate, appeal to the First-Tier Tribunal (Social Security and Child Support)," adds Morgan. "Pre-settled status may not confer automatic entitlement to benefits such as Universal Credit. But claimants should always seek legal advice if they fear their claim may have been wrongly assessed; for example, if their work or self employment is held not to be 'genuine and effective'."
You can view background information and advice compiled by CPAG here.
For claimants looking for advice, visit: https://advicelocal.uk/
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