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We’re going to court to defend EU citizens’ rights to live with dignity

We all deserve to live with dignity in the country we call home. But many of our friends, family and neighbours do not have access to help when they need it. For many migrants, including some EU citizens and family members who have moved to the UK, following their dreams of living in a welcoming society, when life goes downhill, they can’t rely on the welfare safety net we should all be able to count on. 

This is why we are intervening in a County Court case in support of a pre-settled status holder who is being denied homelessness assistance.

We would like to thank ILPA’s Strategic Legal Fund #SLF for funding our intervention, and our legal team: Aoife O’Reilly from Public Law Project, Tom Royston from Garden Court North Chambers and Charles Bishop from Landmark Chambers. 

All EU citizens must have a right to equal treatment

The Withdrawal Agreement sets out that all EU citizens and family members who are beneficiaries of this international treaty have a right to equal treatment with UK nationals. This means that when someone who is protected by the Withdrawal Agreement applies for benefits or homelessness assistance, we should be treated the same as UK nationals and not refused access to these supports. 

We believe all EU citizens and family members who have EU Settlement Scheme status are beneficiaries of the Withdrawal Agreement - and thus, have a right to equal treatment.

Unfortunately, the UK government has decided to exclude some pre-settled status holders from accessing most social assistance. We think this is discrimination that is not allowed under the Withdrawal Agreement. 

Why would some people with status under the EU Settlement Scheme NOT have equal treatment rights?

It may surprise you to learn that the Home Office does not consider all people with EUSS status to be Withdrawal Agreement beneficiaries. It secretly considers some to be a ‘true cohort’ and others to be the ‘extra cohort’ - but doesn’t tell anyone which cohort they fall into when they grant them status. 

Even though the Home Office tells everyone via decision letters and on View & Prove that the legal basis of their status is the Withdrawal Agreement, this actually counts for nothing when it comes to pre-settled status holders asking for help from the state. 

At that point, the state starts asking complicated questions about the person’s right-to-reside, rather than simply accepting that the grant of pre-settled status is by definition the required right to reside! 

This leads to many thousands of vulnerable people falling into destitution because they are denied Universal Credit, homelessness assistance and other benefits. It also creates a large and unnecessary pressure on the courts, as vulnerable people need to rely on judges to confirm they have a right to social assistance.

This particular court case is just one such example, where a judge is needed just to work out whether or not an individual with pre-settled status has Withdrawal Agreement rights.

Why this intervention is crucial

We felt it important to intervene in order to share our insights gained since the early Brexit negotiations. We have raised this issue countless times, putting pressure on the government to take responsibility for its implementation of the Withdrawal Agreement. 

The Independent Monitoring Authority (IMA), the independent public body that was specifically created to make sure EU citizens’ rights are respected in the UK, is also intervening.

In 2022, we intervened in support of a successful challenge brought by the IMA to the UK Government’s decision to insist that all pre-settled status holders apply to upgrade to settled status in order to keep their Withdrawal Agreement rights. That time, we were on the same side but sadly, on this occasion, the IMA appears to be taking a rather different view to ours. 

We are disappointed that the IMA does not agree with us that all EU Settlement Scheme status holders are residing in the UK on the basis of the Withdrawal Agreement. As a result, the IMA is of the view that some status holders can be denied equal treatment rights. We completely disagree with the IMA, though we hope to work with them constructively to persuade them that our interpretation is correct, and that there is in reality no ‘true’ and ‘extra’ cohort of EU citizens. 

We are delighted that the judge has agreed to hear our point of view. 

The hidden No Recourse to Public Funds condition

Our intervention is a piece of a much larger struggle. Everyone deserves to live with dignity in the country they call home, regardless of immigration status. Sadly, many migrants are left destitute by design, trapped in the immigration system by their visa conditions. Some of these visas come with a “No Recourse to Public Funds (NRPF)” condition. 

EU citizens and family members with pre-settled status who fail the right to reside test experience a hidden form of NRPF, suffering significant impact. Unlike other migrants with an NRPF condition imposed, EU citizens and family members cannot apply to have the condition lifted when it is putting them at risk of destitution. 

Campaigns across the migration sector fight against the NRPF condition. We believe no one should suffer from these unfair restrictions.    

Resources

Resources for EU citizens: 

Resources for advisers: 

Campaigns against NPRF:

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