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UC HRT and settled status - magic cure?
Afternoon all
I have seen this topic discussed in another post and it has cropped up again so I am hoping I can get some further clarification.
We have a couple of cases where an EU national has applied for UC and failed HRT as they do not have the right R2R.
On the advice of their caseworker, they have applied for and been awarded “settled status”. The caseworker for their appeal seems to be saying that this now gives them full access to benefits and satisfies HRT. Is this right? The conditions for being awarded settled status do not satisfy the R2R criteria as far as I can tell and the gov.uk website says that settled status will allow for “access public funds such as benefits and pensions, if you’re eligible for them”. “...if you’re eligible”...
Am I missing something?
Thanks all
This is a discussion which we have had in a number of threads as you say.
If you apply for and get settled status, then you get Indefinite Leave to Remain. It is not necessary to show that you have ever lived in the UK under the conditions of the Directive to qualify for settled status - physical presence will do.
To get UC, you need to have a right to reside which is not excluded under reg 9. ILR passes that test because it is a right to reside and is not excluded under reg 9(3).
Ergo, if you have ILR through the EU settlement scheme, you can currently get UC etc.
My concern is that there is absolutely no indication that this is an intentional policy. Every policy document produced by the UK government and even the withdrawal agreement are to the effect that it will be business as usual. There has been no (public) guidance to DWP decision makers on the operation of the scheme. There is nothing at all to suggest that the government has intended to give this massive unilateral extension of the right to claim benefits.
So I would bet that once the DWP realise what is going on, a new reg 9 (3)(c) will appear which will say something to the effect that ILR granted under the settled status scheme will not count unless the claimant would have satisfied the conditions of the EEA Regs were they still in effect.
Hopefully, I’m wrong.
Sure - you can prod people towards making applications, but I think that it is important not to give the false impression that this is cast iron way to get benefits forever unless we hear otherwise.
[ Edited: 30 Jan 2019 at 03:53 pm by Elliot Kent ]one of the case studies sent into me for the EEA national and UC report for the W&P committee says -
DWP are saying Settled Status means:
”you had to prove you had merely been resident in the UK for 5 continuous years. This is different from the UC rules which require you to be resident as a qualified person for 5 years. Although the letter states you have access to public funds, this only means you are entitled to apply for public funds.”
So I fear may not be the magic cure…
The extract cited by Daphne highlights the slightly different issues that arise with regard to immigration status on the one hand and benefit entitlement on the other.
As far as immigration status is concerned, ILR cannot have conditions attached under the 1971 Act and you are not risking any adverse consequences for your immigration status if you attempt to claim public funds. Whether you qualify for such funds is another matter. We already exclude certain non-EEA nationals with ILR from benefits in two ways:
- if ILR, or especially ILE, was only granted because a sponsor gave a maintenance undertaking then the claimant is still a “person subject to immigration control” caught by s115 of the Immigration and Asylum Act 1999
- just like a British citizen, someone with ILR could in theory fail the habitual residence test (although that’s unlikely)
I would be very surprised if the UC Regs are amended to make ILR a non-qualifying right of residence in cases where the claimant would not have had a right to reside had the UK still been in the EU - that just makes it even more complicated for everyone including DWP. But we cannot rule it out 100%.
And is it stands right now, the early adopters who have gone ahead and applied for ILR under the settled status scheme will have ILR with no strings - just cannot promise them that it will stay that way.
Morning all
Many thanks for your replies. I would be a tad surprised if the regs aren’t amended once the DWP cotton on. It is a generous workaround for those who have not obtained five years as a qualified person. We shall see…
I don’t think the rules will be changed to make settled status ILR any different to any other ILR. If they had meant it to be limited, like ILR with a maintenance undertaking, then that’s what they’d have done. While there are clearly benefits officers who don’t understand settled status and ILR, I don’t think it’s realistic to suppose that the secretaries of state for the Home Department and DWP somehow didn’t realise what it means to give people ILR.
As I’ve said before, we know that settled status is deliberately easier to get than permanent residence under EU law. The reasons for this are to do with pragmatism and politics. They don’t actually want to make EU citizens flee the country, and they want the scheme to be manageable for 3 million applicants. And there is an awareness, even in the cabinet, that we will continue to have a relationship with the EU even if we leave, so we don’t want to alienate them too much. And of course, whatever we do to EU citizens in the UK, EU member states can do to UK nationals living there.
Another reason why I don’t think it’s going to change is that the rules on permanent residence are EU law. The idea of Brexit is that we are no longer bound by EU law. The Immigration Rules and benefits regs are UK law. Only an enemy of the people would change the UK’s sovereign rules on benefits and immigration post Brexit to make sure they are aligned with the EU.
If you apply for and get settled status, then you get Indefinite Leave to Remain.
Does anyone know what you get if you apply for pre settled status?
Is it limited leave to remain with no additional restrictions?
[ Edited: 1 Feb 2019 at 10:13 am by Damian ]
If you apply for and get settled status, then you get Indefinite Leave to Remain.
Does anyone know what you get if you apply for pre settled status?
Is it limited leave to remain with no additional restrictions?
I think so, although I haven’t seen the letters.
An important point to all of this I suppose is that even if this is a “magic cure”, you cannot advise a claimant on applying for settled status unless you are OISC regulated to level one or exempt from regulation. If you do overstep the mark, you could be committing a criminal offence.
They have introduced a “light touch” scheme for not-for-profits to apply for level one regulation which is limited only to these applications. It is free for non-charging organisations to apply but every individual adviser needs to fill in an 11 page competence statement and submit to DBS checking.
https://www.gov.uk/government/publications/application-for-level-1-eu-settlement-scheme-registration
[ Edited: 1 Feb 2019 at 11:00 am by Elliot Kent ]Thanks for this Elliot, hadn’t seen either of these before.
The Home Office announced a 5to 9 million pound package to assist Voluntary and Community Sector (VCS) organisations to support with practical assistance those vulnerable at risk EU citizens with applications for settled status.
I get that I cant give advice, but I can signpost, but only if I know who these VCS are.
Does anyone know, who will be giving this invaluable service?
The pilots are running, March 29th is approaching.
Many of my clients are homeless and vulnerable….... I just need a list?
Am I missing something?
I believe quite a lot of these have gone to CABx - they can already do level 1 OISC advice, so it makes sense to send people there anyway.
OISC has an adviser finder tool: http://home.oisc.gov.uk/adviser_finder/finder.aspx
[ Edited: 1 Feb 2019 at 01:50 pm by Timothy Seaside ]The Home Office announced a 5to 9 million pound package to assist Voluntary and Community Sector (VCS) organisations to support with practical assistance those vulnerable at risk EU citizens with applications for settled status.
I get that I cant give advice, but I can signpost, but only if I know who these VCS are.
Does anyone know, who will be giving this invaluable service?
The pilots are running, March 29th is approaching.
Many of my clients are homeless and vulnerable….... I just need a list?
Am I missing something?
I think the deadline for applications for funding was 12 noon today so perhaps there is no list yet…...
https://www.contractsfinder.service.gov.uk/Notice/dcc90ff7-c416-465a-ad92-9dd7f15bcce7
Apologies: can’t figure out how to type outside the quote!
Thank you DebbieS, and Timothey Seaside
One step forward, (it will be done) but one step back. (but not yet).
I don’t get how they have piloted this properly, without knowing who will be helping the most vulnerable, as that surely would be the most difficult bit?
But there you go, we will all have a responsibility to ensure that we don’t have another Windrush situation, with folks roaming around in 2021 without status, just because they didn’t manage to apply.
So all we can do is crack on and make sure we signpost correctly, when we know who is going to be doing this.
Just my view.
i’ve just gone back and read the critera for settled status
it says, you have to have lived here for 5 years.
so if someone gets that, UC/the DWP should accept it - the immigration people WILL have checked it already before
pre settled status is a different matter - less than 5 years