Welfare rights
The right to reside test traps EU citizens in destitution.
EU citizens and their family members who lived in the UK prior to Brexit have to apply for a new immigration status to be able to continue living in the UK. Under the EU Settlement Scheme (EUSS), people are now granted either pre-settled status or settled status.
For the purposes of claiming welfare benefits, applicants need to pass a ‘Habitual Residence’ test. They must show the UK is their main home, and that they have a ‘right to reside’. Several immigration statuses automatically satisfy the ‘right to reside’ requirement and initially those with pre-settled status under the EUSS were also deemed to satisfy the test.
In July 2019 the UK government introduced an amendment to the Universal Credit Regulations 2013 which reversed that, imposing a requirement that those with pre-settled status demonstrate a second ‘right to reside’. This is assessed by reference to the old EU free movement rights - for example, showing they are a worker or are self-employed.
Why is there a problem?
The latest figures show that roughly 3,500 applications for Universal Credit by EEA nationals are refused every month because of the right to reside test.
Many with pre-settled status are unable to satisfy, or prove that they satisfy, this second test. For people with a patchy work history, such as those working in the gig economy, proving that they are working enough to satisfy the right to reside test is difficult. It can be hard to prove that work is ‘genuine and effective’. It can also be hard to access proof of chequered employment.
This is particularly problematic in the context of the current cost of living crisis, and in the wake of the Covid-19 pandemic during which so many lost their jobs.
Accessing advice and legal support is very challenging. There are not enough advisors to help. Challenging DWP decisions is costly and difficult, but appeals do often succeed. This shows that there is a need for proper legal help. For many people on the brink of destitution, getting access to the support they need is simply beyond reach.
