April 2021 – EEA Nationals
Although free movement rights have in general been ended in UK law, some EEA nationals are protected and can continue to benefit from these provisions – particularly when claiming a benefit that requires a right to reside.
Irish citizens or those granted settled status have the right to reside. Others in a protected group (for example someone with pre-settled status is protected until they no longer have pre-settled status) may have a right to claim benefits if they have a free movement right to reside other than one which is excluded for the benefit they wish to claim.
For example, if an EEA national wanted to claim Universal Credit, they would need a right to reside other than that based on being an EEA jobseeker.
EEA nationals who came to the UK in 2021 may be entitled to some means tested benefits such as Housing Benefit or Pension Credit (but not Universal Credit) if they are in an exempt group during a period of leave. Nationals are in an exempt group if they come from a state that has ratified either the European Convention on Social and Medical Assistance or the European Social Charter. In effect, this means individuals from all EEA states except Bulgaria, Liechtenstein, Lithuania, Romania or Slovenia.
Advisors should also be aware that a challenge to these provisions is due to be heard by the Supreme Court, following an appeal by the Department of Works and Pensions (DWP) against the decision in the case of Fratila. In that case, the Court of Appeal held that the addition of pre-settled to the list of excluded rights to reside was unlawful.
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