By Olivia Vicol - 05 January 2021
Three years and three Prime Ministers after the Brexit referendum, the British Parliament ratified the Withdrawal Agreement. At the end of 31 January 2020 the UK left the EU. A relatively short (11 month) transition period was instituted to allow negotiators to draft the contours of the future relationship - notably, with regards to trade. Most EU laws including freedom of movement continued to apply, and the UK remained a contributor to the EU budget. All of this ended on the 31st of December 2020.
This article summarises what the end of the Brexit transition means for EU citizens’ social security rights. If there is one thing to remember, let it be this: make sure you apply for the EU Settlement Scheme (EUSS). If you already have Settled or Pre-Settled status, your rights to claim social security remain unchanged. If you don’t, you have until the end of June 2021 to obtain it. But hurry. Proving your entitlement to social security will be significantly harder without the EUSS. And as this article makes clear, some people are at risk of falling through the cracks.
What gives EU citizens the right to access welfare in the UK?
The European Union provides common rules to protect EU citizens’ rights to access social security in a different member state. This is known as EU Social Security Coordination (henceforth, the EU Coordination Regulations). All EU citizens had the right to access welfare under these regulations while the UK was a member of the Union, and during the transition period.
From 01 January 2020, this right is re-shaped by the Withdrawal Agreement. Simply put, the Withdrawal Agreement preserves the right to EU Social Security Coordination for some EU citizens, but takes it away for others. The trick is to understand how. To answer this, we reviewed Part 2 of the Withdrawal Agreement, and the Guidance relating to its implementation.
What does the Withdrawal Agreement do?
The Withdrawal Agreement created three different cohorts of EU citizens with regards to social security entitlement.
Full scope
As an EU national, you fall within this cohort if on the 31st of December 2020 you:
It is important to remember that you also have to retain the status you had during the transition period. In other words, you have to continue to be in the country (to remain a subject of UK legislation, as per Article 30), or continue to be a worker, self-employed, or insured (to retain your right to reside, as per Article 10). Having Settled Status allows you to live outside of the UK for up to 5 years without losing your resident status. Pre-Settled Status allows you to spend up to 2 years abroad. But if you have neither and you left the UK for 6 months in any 1 year, you will lose your right to reside - and with it, your right to social security.
How do authorities determine if you meet the criteria for full scope?
There are a few types of proof the Department for Work and Pensions will use to determine if you qualify:
Partial scope
You will fall within this cohort if you exercised your right of free movement before the end of the transition period, but you have since stopped working, studying, or living in the UK (so that you lost the continuity in you right to reside, or in being a subject of UK law).
The social security entitlements in this case are complex. But broadly speaking, they are directly linked to the contributions you have made during the period when you were working in the UK. For instance, your contributions in the UK can be added to your contributions in your country of origin when you reach retirement age and apply for your pension. Or conversely, you can get a pension from the UK, based on the contribution you have made here, even if you settle in a country of the EU.
Family member derived rights
Family members cover spouses or civil partners, children and grandchildren under 18, or over 18 who are dependent, as well as grandparents and parents. This mirrors the definition of family members within the EU Coordination Regulations.
There are two ways to access the right to social security as a family member.
Remember: if your right is derived, it is dependent on your relationship with the primary right holder. Children can fall out of scope if, for instance, they reach the age of 18 and are no longer dependent on the parent (who is the primary right holder). Similarly, a partner or spouse can fall out of scope if they separate.
Who is likely to fall through the cracks?
Anyone who struggles to get Settled or Pre-Settled Status under the EUSS is at risk of being excluded from the British social security net.
A small but important minority of EU nationals continue to live and work in the UK without knowing the full consequences of lacking (Pre)Settled Status. We have seen this time and again at the Work Rights Centre. Applying for the EUSS means mastering a certain level of bureaucratic discipline and digital literacy, which aren’t easily within the reach of people with modest levels of education, who struggle with precarious and informal employment.
Secondly, there are those who are well aware of the importance of the EUSS, but struggle to apply. This includes recent EU migrants who were denied a National Insurance Number (NINo) after the DWP suspended allocations in March, and have subsequently struggled to find work. Without a record of tax contributions, proving one’s presence in a state becomes significantly more complex, even though not impossible. Also at risk are EU nationals who lost their employment during Covid and returned to their country of origin - but in doing so, lost continuity in their right to reside (as per Article 10), or being subject to UK law (as per Article 30). Finally, it may include anyone who wanted to move to the UK for the first time before 31 December, but couldn’t do so due to lockdown restrictions.
Home Office statistics remind readers of the 4 million + applications made. What we cannot count are the applications that were never made - by those bemused by the digital platform, and by all those who were pushed into informality through no fault of their own.
Where next?
If there is one thing we want you to remember is to apply for the EUSS. Proving that you fall within the scope of Social Security Coordination under the Withdrawal Agreement without the EUSS will be significantly harder.
If in doubt, ask for advice. This article is a summary of vast and complex regulations. Ask a member of our team if you need help with your EUSS application and get advice from a solicitor if you want more clarity on your rights. You can also contact the Government's EU Settlement Resolution Centre.
Terminology
Article 30 - refers to the Article in the Withdrawal Agreement, that specifies who is covered by the coordination of social security systems.
Article 10 - refers to the Article in the Withdrawal Agreement, that specifies who is covered by personal scope. Together with Article 30, it defines who is covered by the coordination fo social security systems.
Right to reside - refers to the conditions set forth in EU law, namely Article 21 of the Treaty on the functioning of the European Union.
Scope (being in scope, or falling out of scope) - refers to being eligible for (or under the scope of) EU Social Security Coordination, as per the EU Withdrawal Agreement.
Subject to UK law - there is no single definition for this. Most people are subject to the laws of the country they live in (unless they hold diplomatic immunity), but this is not the only application of the term.
Withdrawal Agreement - implemented in the European Union (Withdrawal Agreement) Act 2020, which received Royal Assent on 23 January 2020.
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