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Draft regs saving parts of I(EEA) Regs 2016

HB Anorak
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Kudos to @WRHadwen on Twitter for spotting an unfortunate lacuna in the draft regs saving EEA rights of residence during the grace period from January next year.  Traditional EEA rights of residence are preserved for “relevant persons” and their family members who do not have leave to remain under the EU settlement scheme (see definition of “residence scheme immigration rules” in s17 of the EU(WA) Act 2020).

This appears to leave people who have pre-settled status falling between two stools: because they have leave under the EU scheme, they are missed by the preservation of EEA rights, but their leave is specifically excluded from satisfying the right to reside test.  That means that someone who is currently, say, a worker and elgible for benefits on that basis and who also has pre-settled status will lose the status of EEA worker from January and will no longer have a right of residence that entitles them to benefit.  This puts them is a worse position than people who have no leave at all under the EU scheme. which cannot have bee the intention.  Needs fixing - definition of “relevant person” needs to refer to “indefinite leave” only, not just plain “leave”.

This is only an issue if the 2016 Regs are revoked generally in the first place - that requires a commencement order under the new I&SSCW; Act which is still going through parliament.

But an early warning of a drafting problem - well spotted Will.

Charles
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I don’t know. These Regs are being made to provide for the settlement scheme application deadline, and the consequences of the deadline being 6 months after the EEA Regs are actually revoked. I would have been surprised if the more general need to provide those with pre-settled status with a right to claim benefits had been legislated for within these regs.

HB Anorak
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Reg 3 preserves the right to reside for those who already have it and need to rely on it because they do not as yet have LTR - that is primarily an immigration matter, it’s to avoid people suddenly having no legal status in the country at all during the grace period.  So as you say, perhaps not the obvious place to legislate positively on a social security matter.  But Reg 3 does have the side-effect of removing traditional EEA rights of residence from those with pre-settled status, so I just wanted to make a noise about it in case the day arrives and no-one has noticed!

JenB
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HB Anorak - 05 October 2020 10:15 AM

Reg 3 preserves the right to reside for those who already have it and need to rely on it because they do not as yet have LTR - that is primarily an immigration matter, it’s to avoid people suddenly having no legal status in the country at all during the grace period.  So as you say, perhaps not the obvious place to legislate positively on a social security matter.  But Reg 3 does have the side-effect of removing traditional EEA rights of residence from those with pre-settled status, so I just wanted to make a noise about it in case the day arrives and no-one has noticed!

Yes, glad you made some noise!
Do you know if there has been any further clarification about this?

Ruth Knox
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But this is really worrying.  Does this really mean that, for instance, an EEA worker who has been in the UK for a couple of years and is getting Universal Credit now, will stop getting it on 31 December?

Ruth Knox
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But this is really worrying!  Does this mean that someone who has been in the UK for 3 years, and is going on happily working and claiming UC, will suddenly not be entitled to it after 31 December?  Or would that person be fine so long as she doesn’t apply for pre-settled status, but will her benefits immediately stop if she does?

Jon (CANY)
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Would this issue be related to a housing authority recently deciding to remove those who have been granted pre-settled status from their housing list, regardless of whether they were also exercising a current RTR?

Elliot Kent
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Ruth Knox - 30 October 2020 02:07 PM

But this is really worrying!  Does this mean that someone who has been in the UK for 3 years, and is going on happily working and claiming UC, will suddenly not be entitled to it after 31 December?  Or would that person be fine so long as she doesn’t apply for pre-settled status, but will her benefits immediately stop if she does?

I don’t think we know the answer to that. The problem is that the benefits and immigration situation don’t sit neatly together. From an immigration point of view, the fact that somebody has pre-settled status is sufficient and there is no need to recognise an additional secondary status as an EEA worker or whatever. This doesn’t have regard for the difference in benefit treatment of the different statuses.

We saw this happening the other way round when the EUSS was introduced and the government accidentally gave everyone with pre-settled status access to benefit because they apparently failed to appreciate that granting limited leave to remain without an NRPF condition would result in a right of access to benefit and then they had to roll this back with emergency legislation.

Jon (CHDCA) - 30 October 2020 05:00 PM

Would this issue be related to a housing authority recently deciding to remove those who have been granted pre-settled status from their housing list, regardless of whether they were also exercising a current RTR?

Do you have more info about this Jon? Very troubling. Message me if you can.

Jon (CANY)
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Was hoping this might catch your eye, thanks Elliot.

Martin Williams
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My understanding is that there will be additional regulations (to be made under the Immigration and Social Security Co-ordination (EU Withdrawal) Bill once that becomes an Act) which will allow the continued reliance on the I(EEA) Regs 2016 for benefit purposes for those who have pre-settled status.

So this should not be a problem for those with PSS.

Martin

Stuart
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The regulations have now been laid -  the Citizens’ Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020 (SI.No.1209/2020)

unhindered by talent
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So do the EU Co-ordination rules relating to the past presence test for disability and carers’ benefits still apply until the end of June 2021?

HB Anorak
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The coordination rules apply to anyone within the scope of the Withdrawal Agreement, which will be a long time after June 2021 in many cases.  See Article 30.

some good analysis here: https://eurelationslaw.com/blog/coordination-of-social-security-under-the-withdrawal-agreement

unhindered by talent
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Many thanks - some serious reading there!