The EU Settlement Scheme (EUSS), to which all EU/EEA/Swiss citizens living in the UK should apply should they wish to remain in the UK after the end of the transition period on 31 December 2021, confirms the applicant’s right of residence in the UK after Brexit. This aim – to provide EU citizens who live in the UK with status to remain after free movement ceases to apply in the UK – seems simple enough. However, as we have written many times before, the Scheme is not perfect, and has many gaps. Here, we focus on one of those gaps: social security for EEA citizens, an issue which the EUSS does not address, as it fails to confirm explicitly that people who obtain status under the Scheme are protected by the Withdrawal Agreement. Whether someone is protected under the EU Withdrawal Agreement is important, as it determines whether the applicant in question is entitled to social security benefits in the UK.
The relevant framework to understand whether a person is entitled to social security in the UK after Brexit is quite complicated. It requires an understanding not only of UK and the member state’s immigration rules, but also its social security rules, the EU-UK Withdrawal Agreement, the Free Movement Directive and the European Union Social Security Co-ordination Regulations (883/2004).
The 883/2004 coordination Regulations do not establish a single, unified social security system across the EU, but instead provide a reciprocal framework to protect the social security rights of people moving within the European Economic Area (EEA) states (and Switzerland). As such, each member state can choose what sort of benefits-in-kind and cash benefits it funds for nationals from another member state.
The coordination Regulation tells us which country is responsible for paying a person’s benefits, where those benefits can be received and what benefits may be redirected. In short, it simplifies the process of claiming and making benefits, allowing all benefits to be made in one single payment across borders. It provides a mechanism for countries to speak to each other, to resolve who meets the costs and where they will be paid, with an ability to challenge those decisions.
Member States however remain responsible for their own social security systems: it is up to them to decide which benefits are granted, at what rate, as well as define conditions for entitlement. So, a person’s entitlements is dependent on the domestic rules that are in place during their periods of residence in the respective EEA country and the UK.
All benefits referred to in the coordination Regulations are included in the Withdrawal Agreement at Part Two, Title III. This section ensures that if a person is entitled to benefits now, before the end of the transition period, they will maintain the right to those benefits and, if they are entitled to a cash benefit from one country, they will in principle be entitled to receive it even if they decide to live in another country. Title III also covers groups of people, other than those persons meeting the Free Movement Directive, who might also benefit from coordination.
There are four main principles for coordination. The first is the ‘single state principle,’ which sets out that at any one time, a person is covered by the social security system of one single country and is only liable to make contributions in one country – this is what we call the ‘competent state.’ The second is the prohibition of discrimination and guarantee of equal treatment, which sets out that a person has the same rights and obligations as a national of the Member State where they are covered. The third is the idea of ‘aggregation’ which establishes that periods of insurance, employment or residence in other Member States can be taken into account when determining a person’s eligibility for benefits. Finally, the last principle concerns exportability, and explains that a person can receive benefits from one Member State even if they are resident in another Member State.
All the persons who fall within the scope of the provisions set out above get the benefit of the rules and objectives set out in the coordination Regulations, its implementing Regulations and its governing EU treaty provision (Article 48 of the Treaty on the Functioning of the European Union). In other words, the full coordination rules apply and so there is protection for social security, healthcare, and pensions.
There is a saving provision: anyone who does fall within the four categories set out above, but who falls within Article 10 of the Withdrawal Agreement is also covered (as are their family members and survivors) and will remain entitled to social security benefits. Article 10 refers to the categories of persons who continue to have rights of residence under the Withdrawal Agreement. So, if it’s too complex to determine eligibility in one of the categories above, then a person can still remain protected by the coordination rules in the future if they have attained the right of permanent residence in the UK, as long as they retain that right of residence.
Now we come to the EU Settlement Scheme. As we have explained before (for example when assessing EEA applications for naturalisation), settled status does not confirm whether a person falls under these provisions. This can lead to complex coordination in the future. The UK may not be able to determine that a person falls within one of the four categories, and this may lead to disputes with other states also involved in the coordination of rights. So, without a document confirming that they fall within the Withdrawal Agreement, a person with settled status may be excluded from social security coordination provisions under the Withdrawal Agreement, unless they have enough evidence to show prior exercise of EU rights. This is obviously problematic.
Another point to note is that the persons who fall within Article 10 of the Withdrawal Agreement are only covered for so long as they have a right to reside under Article 13 (residence rights) of the Withdrawal Agreement or a right to work in their state of work under Article 24 (rights of workers) or Article 25 (right of self-employed persons) of the Withdrawal Agreement. Again, this risks excluding settled status holders based merely on five years’ presence from social security co-ordination provisions under the Withdrawal Agreement unless they can show the prior exercise of EU rights.
This issue is easy to resolve: applicants who receive settled status and have been beneficiaries of the Withdrawal agreement should simply receive a document to confirm that, which would enable them to claim the benefits they are entitled to without any complications. Unfortunately, the government has previously shown that it is not keen on providing physical status at all – let alone physical proof of entitlement to benefits.
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Whilst waiting to find out if their asylum claim is accepted, asylum seekers are often stuck in the country where they lodged their claim for months. In the UK, they are not allowed to work during this time, yet they have to provide for themselves. To help alleviate their financial burden, the government provides them with “Asylum Support” which includes housing and a small cash allowance for essential products such as clothing, food, and toiletries.
The government guidance on eligibility and access to this support is clear. To qualify for accommodation, an asylum seeker will have to prove that they have nowhere else to stay. For the cash allowance, they will have to prove that they do not have the means to survive. Applicants should fill in form ASF1, which asks about their financial situation and that of their relatives, await a decision, and then receive the support they qualify for.
In practice, however, the decision-making process is slow, leaving applicants in limbo for weeks if not months before getting the support they need. Housing is scarce, and there is often a waiting list for accommodation. The cash allowance is minimal: asylum seekers are expected to make do with just over £5 a day. To make matters worse, they are often forced to spend a significant part of that sum on public transport, as they have to report once a week to the immigration authorities whilst awaiting the outcome of their application. This makes it very hard for asylum seekers and their families to make ends meet.
A number of charities have challenged this allowance in the past, arguing that it is unrealistic to expect anyone to survive on that little money. They argue that asylum support should be more in line with Universal Credit rates, which are more than twice as high as the Asylum Support allowance.
During the COVID-19 pandemic, these charities’ voices were amplified. As prices are rising in general, and all citizens are expected to invest in basic hygiene products such as hand sanitiser, masks and pain killers to avoid the spread of the coronavirus, the economic hardship imposed on asylum seekers has spiralled out of control. That is why on June 8th, the Immigration Minister Chris Philp announced that from June 15th, the stipend or Asylum Support rates would increase - from £37.75 to £39.60 per week, to be precise. Effectively, that amounts to an increase of 26p a day. If that does not sound very ambitious, that’s because it isn’t. If before the pandemic, asylum support rates were already significantly lower than mainstream benefits, the gap has now widened beyond belief, as they are now barely equal to 40% of the allowance people over 25 receive on Universal Credit.
With the prospects of inflation and an economic crisis on the horizon, over 250 organisations, faith groups and community leaders wrote to Home Secretary Priti Patel to ask her to urgently reconsider her decision. They called the proposed changes to the Asylum Support Rates “an insult, not an increase”, and instead requested an increase in line with the recent changes to Universal Credit and Working Tax Credit, which were increased by approximately £20 per week as part of the coronavirus relief measures. As of yet, there has been no response from the Home Office.
When lockdown measures were introduced in March, the Prime Minister stated that the UK “will look after all the most vulnerable in society” including asylum seekers. On 23 May, he stated that, “we will make sure that nobody in this country, let alone asylum seekers, is ill-treated.”. Ensuring that people seeking safety in the UK are able to meet their essential needs and stay safe, and making up to those promises, however, will take more than a 26p increase in funds.
In March, the PM promised that destitute migrants would receive the necessary accommodation and funding during the coronavirus pandemic. Six weeks later, food banks are struggling to meet demands, asylum seekers are moved out of their flats without warning, and local authorities fail to offer guidance on how to offer shelter to rough sleepers during the crisis.
Under Theresa May’s “hostile environment” rules, individuals without immigration status in the UK do not have access to public funds. The hostile environment prevents them from accessing many benefits, ranging from healthcare to housing to public authority assistance of any kind.
In an open letter to the Government, the Jesuit Refugee Service (JRS) asks the Prime Minister to grant all immigrants who currently do not have status a period of Leave to Remain for the time of the pandemic, to avoid the hostile environment’s detrimental effect on public health. The letter is signed by over 30 organisations and charities who work with asylum seekers, refugees and other individuals with insecure immigration status, including Bail for Immigration Detainees, Women for Refugee Women and many others.
The JRS’ letter asks the PM to “to grant a period of leave to remain, with recourse to public funds and access to the labour market, to all those with insecure immigration status,” stating that “This is a vital step to protect public health during the Covid-19 pandemic. At a time when public health demands that everyone has ready access to housing and healthcare, insecure immigration status acts as a barrier and puts everyone’s health at risk.”
Although the government has made all COVID-19 treatment free of charge irrespective of the patient’s immigration status, many people with precarious status are reluctant to get help. They fear that data-sharing between the NHS and the Home Office, another pillar of the hostile environment policy, will lead to their deportation if they go to the hospital. If they think they might be sick, many migrants prefer staying under the radar so as to avoid the risk of getting into trouble, leading infected people to remain untested and at large.
In order to avoid a crisis of exploitation, destitution and homelessness on top of the coronavirus emergency we are already going through, all migrants should be encouraged to access public funds and especially healthcare.
As charities which normally support vulnerable asylum seekers have been forced to shut down, destitute and vulnerable asylum seekers have been left out in the cold. A #HumaneMigration system including temporary amnesty and leave to remain for migrants who are in the UK during the pandemic is the only viable solution not only to help all the people who are currently slipping through the cracks, but also to limit the spread of the virus in the wider community. Only unprecedented measures can reflect the unprecedented nature of this crisis, and ensure the health and safety of the nation as a whole.