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Forum Home  →  Discussion  →  Residence issues  →  Thread

UC HRT and settled status - magic cure?

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Jo_Smith
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Thanks Timothy. JSA and work was a piece-meal affair, a little bit of that, a little bit of this. Gaps in record, poor evidence, working for friends etc. So it would be incredibly hard to show worker-retained worker status.
MR was submitted by a client- in a form of a phone call saying “I disagree, i claimed benefits in UK for many years!”

I just hope they get settled status but it will feel so awkward; “Dear DWP,  I know you have rejected my UC claim before because I did not satisfy R2R, but taa daah, I do now, without any change in my circumstances”

Will be interesting.

 

 

     
Timothy Seaside
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To be honest, it often feels a bit awkward when you have to tell the DWP how to do their job. Personally I am very happy that something good has come out of Brexit.

But there’s nothing wrong with establishing a different right of residence. You’d do exactly the same in a situation where an EU citizen applies, is turned down for no right of residence, starts work, and claims again as a worker. In your clients’ case, they may not have a right of residence under EU law, but by applying for settled status they are not trying to establish an EU right of residence. The settled scheme has nothing to do with EU law - it is entirely down to the Immigration Rules.

We’ve discussed previously that some people have concerns about the government changing the settled scheme to make it less generous, and some of us have been quite confident that they won’t do that. But now perhaps we are coming to the point where we ought to be thinking about what happens when we stop Brexit altogether. Obviously the settled scheme would be likely to end, but what about all the people who have already been granted ILR - from a public law point of view I can’t see how they could change the nature of that ILR after the fact.

     
Mr Jim
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What Nationality are they? Were they on JSA continuously since 2010 before going on holiday abroad in 2018?

     
CHC
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Looks like the Settled/presettled status application portal is down…...

     
past caring
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This is somewhat worrying…...

http://www.legislation.gov.uk/uksi/2019/861/made

Actually, just seen this

http://www.legislation.gov.uk/uksi/2019/872/made

so that’s that then - no magic cure.

      [ Edited: 16 Apr 2019 at 05:27 pm by past caring ]
Elliot Kent
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past caring - 16 April 2019 05:20 PM

so that’s that then - no magic cure.

Not quite.

The Regulations amend reg 9(3) of the UC Regs so that as from 09/05/19, pre-settled status (limited leave to remain) does not count for UC purposes - so the claimant would need some other right to reside to qualify. Equivalent changes are made for other benefits.

Settled status (indefinite leave to remain) is not addressed by the Regs. But it is even clearer now that the view expressed above that settled status must be sufficient for HRT purposes is correct (as it would not have been necessary to introduce the regs at all if we were wrong).

So the position seems to be, from 09/05/19:
*EU nationals with settled status will have full access to means-tested benefits - even if they are not permanent residents in EU law, or have never been qualified persons and would therefore not have qualified for benefit pre-Brexit
*EU nationals who have pre-settled status or have not yet applied for status will be subject to the usual rules for the time being. At some point, free movement rules will presumably stop - at which point these people will have no access to means-tested benefits.

This means that it has suddenly become extremely important that people with pre-settled status who have actually been in the UK for 5 years take advice on challenging the decision if they anticipate needing to claim benefits.

     
HB Anorak
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I read that as settled good, pre-settled bad.  It’s only limited leave that is an “invisible” right to reside under those amendments

PS what Elliot said - simultaneous posts

     
past caring
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Was only saying it’s not a magic cure, not that it’s all bad.

Elliot Kent - 16 April 2019 06:50 PM

*EU nationals who have pre-settled status or have not yet applied for status will be subject to the usual rules for the time being. At some point, free movement rules will presumably stop - at which point these people will have no access to means-tested benefits.

I’m not so sure. I’d imagine (or at least hope) the I(EEA) Regs 2016 would remain in force to set out the basis on which an EU citizen with LLR/pre-settled status has a right of residence sufficient for benefit entitlement - with a minor amendment to the effect that the provisions apply up a certain post-Brexit date….

     
Elliot Kent
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Charles - 17 April 2019 03:50 AM
past caring - 16 April 2019 08:56 PM

I’m not so sure. I’d imagine (or at least hope) the I(EEA) Regs 2016 would remain in force to set out the basis on which an EU citizen with LLR/pre-settled status has a right of residence sufficient for benefit entitlement - with a minor amendment to the effect that the provisions apply up a certain post-Brexit date….

Aren’t the UK required to do this under the deal agreed with the EU? (If it ever gets through parliament!)

Yes - we assume that the EEA regs will be kept in force in some fashion beyond “exit day” to give effect either to any deal or to the no-deal plan although we don’t know exactly what that will look like. But hopefully it would be less of a “cliff edge” than my post made it look.

      [ Edited: 17 Apr 2019 at 07:56 am by Elliot Kent ]
Charles
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past caring - 16 April 2019 08:56 PM

Was only saying it’s not a magic cure, not that it’s all bad.

Elliot Kent - 16 April 2019 06:50 PM

*EU nationals who have pre-settled status or have not yet applied for status will be subject to the usual rules for the time being. At some point, free movement rules will presumably stop - at which point these people will have no access to means-tested benefits.

I’m not so sure. I’d imagine (or at least hope) the I(EEA) Regs 2016 would remain in force to set out the basis on which an EU citizen with LLR/pre-settled status has a right of residence sufficient for benefit entitlement - with a minor amendment to the effect that the provisions apply up a certain post-Brexit date….

Aren’t the UK required to do this under the deal agreed with the EU? (If it ever gets through parliament!)

     
CARH
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Elliot Kent - 16 April 2019 06:50 PM

So the position seems to be, from 09/05/19:
*EU nationals with settled status will have full access to means-tested benefits - even if they are not permanent residents in EU law, or have never been qualified persons and would therefore not have qualified for benefit pre-Brexit
*EU nationals who have pre-settled status or have not yet applied for status will be subject to the usual rules for the time being. At some point, free movement rules will presumably stop - at which point these people will have no access to means-tested benefits.

This means that it has suddenly become extremely important that people with pre-settled status who have actually been in the UK for 5 years take advice on challenging the decision if they anticipate needing to claim benefits.

Does anyone know what might happen in ‘mixed households’ when a partner of EU national with ILR, has pre-settled status?
Currently, family members of EU nationals will be eligible for benefits on the basis of their relationship with the EU national.
Will this principle continue to apply for EEA partners?

 

      [ Edited: 17 Apr 2019 at 07:14 am by CARH ]
Elliot Kent
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CARH - 17 April 2019 07:06 AM

Does anyone know what might happen in ‘mixed households’ when a partner of EU national with ILR, has pre-settled status?
Currently, family members of EU nationals will be eligible for benefits on the basis of their relationship with the EU national.
Will this principle continue to apply for EEA partners?

All of the rights that exist under the current law continue to apply - so for instance if you are the family member of a worker, you can still assert that right.

The EU settlement scheme grants additional parallel rights which you can rely on if it suits you.

So lets say that A has worked here for 15 years and was joined 2 years ago by their spouse, B, who has never worked.

Under EU law, A is a “permanent resident” and B is the “family member of a permanent resident” - they both have a right to reside in EU law. If neither of them made any application under the scheme, they would be able to rely on these rights if they were making a claim for UC.

If they apply to the scheme, A will get settled status and B will get pre-settled status. These are then additional rights which are added to the pile - they don’t replace the EU law rights they already have.

So if they then apply for UC, A will be able to say either “I am a permanent resident in EU law” or “I have settled status in UK law” - either is good enough.

B’s pre-settled status doesn’t count for UC - but that doesn’t stop B from saying “I am a family member of a permanent resident” in the same way as before. A is still a permanent resident in EU law, whether or not they have additional rights under UK law, so A’s family members can still rely on that.

If A had never worked (or otherwise had some sort of relevant status) then neither A nor B would have any EU law rights. They would still be able to apply for settled and pre-settled status respectively, but when they claimed UC, B would fail the HRT. This is because B’s LLR is insufficient under the new regs, and there is no EU right to fall back on.

I am hoping that makes sense…

      [ Edited: 17 Apr 2019 at 08:27 am by Elliot Kent ]
CARH
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Elliot Kent - 17 April 2019 08:24 AM
CARH - 17 April 2019 07:06 AM

Does anyone know what might happen in ‘mixed households’ when a partner of EU national with ILR, has pre-settled status?
Currently, family members of EU nationals will be eligible for benefits on the basis of their relationship with the EU national.
Will this principle continue to apply for EEA partners?

All of the rights that exist under the current law continue to apply - so for instance if you are the family member of a worker, you can still assert that right.

The EU settlement scheme grants additional parallel rights which you can rely on if it suits you.

So lets say that A has worked here for 15 years and was joined 2 years ago by their spouse, B, who has never worked.

Under EU law, A is a “permanent resident” and B is the “family member of a permanent resident” - they both have a right to reside in EU law. If neither of them made any application under the scheme, they would be able to rely on these rights if they were making a claim for UC.

If they apply to the scheme, A will get settled status and B will get pre-settled status. These are then additional rights which are added to the pile - they don’t replace the EU law rights they already have.

So if they then apply for UC, A will be able to say either “I am a permanent resident in EU law” or “I have settled status in UK law” - either is good enough.

B’s pre-settled status doesn’t count for UC - but that doesn’t stop B from saying “I am a family member of a permanent resident” in the same way as before. A is still a permanent resident in EU law, whether or not they have additional rights under UK law, so A’s family members can still rely on that.

If A had never worked (or otherwise had some sort of relevant status) then neither A nor B would have any EU law rights. They would still be able to apply for settled and pre-settled status respectively, but when they claimed UC, B would fail the HRT. This is because B’s LLR is insufficient under the new regs, and there is no EU right to fall back on.

I am hoping that makes sense…

Certainly does, thanks Elliot.

 

 

     
mycatismo
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Just wondering if anyone has been granted UC on the basis of pre-settled status - and if so, would they be allowed to stay on or have their UC claim closed??? Or is this a pretty unlikely scenario considering the difficulties those with settled status have had getting accepted as eligible?

     
past caring
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The amending regs. come into force 7/5/2019 and don’t have retrospective effect. So arguably anyone granted pre-settled status prior to that date, whether or not they have yet claimed UC (or any other benefits) is not excluded…...though a claim will need to be made before that date.