This chapter provides advice about conducting a human rights assessment when a European Economic Area (EEA) national who is ‘in breach of immigration laws’ qualifies for social services’ support.
6.1 When does Schedule 3 apply to an EEA national?
When an EEA national qualifies for social services support, Schedule 3 applies when the person is ‘in breach of immigration laws’ i.e. is living in the UK without lawful status.
People who have an entitlement to apply to the EU Settlement Scheme will be ‘in breach of immigration laws’ when one of the following situations applies to them:
- They have a pending ‘in-time’ application (submitted before 30 June 2021) but were not exercising a European right to reside on 31 December 2020.
- They were resident in the UK by 31 December 2020 but missed the deadline to apply to the EU Settlement Scheme and have not yet made an application.
- They failed to apply to the EU Settlement Scheme within 3 months of their EUSS family permit expiring (non-EEA family members).
- Their late application is not accepted by the Home Office.
- Their application for settled or pre-settled status is refused and any subsequent administrative review or appeal is unsuccessful.
However, when a person is entitled to apply to the EU Settlement Scheme, a local authority will face challenges implementing Schedule 3.
The Independent Monitoring Authority for the Citizens’ Rights Agreement (IMA) has emphasised that local authorities will play a key role in upholding the rights of EEA nationals that are set out in the Withdrawal Agreement and agreements with EFTA states. On 30 June 2021, the IMA reminded public bodies ‘of the need for care in considering the status of citizens who have applied to the EUSS but have not yet received the results of their application’, and on 27 August warned that ‘better understanding of the rights of late applicants to the EU Settlement Scheme (EUSS) is required to avoid potential hardship for individuals’.
In order to meet commitments to protect the rights of EEA citizens that are set out in the EU-UK Withdrawal Agreement and other agreements, the UK Government has enabled late EU Settlement Scheme applications to be made when a person has a reasonable excuse for missing the deadline and has introduced various policy protections to protect a person’s entitlements whilst their EU Settlement Scheme application is pending, whether the application was made before or after the deadline. The UK Government also does not distinguish in the EU Settlement Scheme between those that have protected rights and those that do not, with the qualifying criteria based on residence in the UK rather than the need to have been exercising a European right to reside.
It will therefore be extremely difficult to implement Schedule 3 when a person is identified as needing to make a late application to the EU Settlement Scheme. In order to protect the rights of EEA nationals and their family members, when a person qualifies for social services’ support a local authority may need to continue to provide or to start providing accommodation and financial support whilst the Home Office determines whether settled or pre-settled status will be granted. Implementing Schedule 3 by withholding or withdrawing social support on the basis that the person can return to their country of origin could risk breaching the person’s rights and cause reputational damage to the local authority. As providing support in such circumstances will likely result in additional financial pressures for local authorities, the NRPF Network will monitor any changes in demand for support through NRPF Connect and will continue to raise the impacts on local authorities with the Government.
Local authorities may also encounter EEA nationals who will be ‘in breach of immigration laws’ and do not have an entitlement to apply to the EU Settlement Scheme. In such cases, Schedule 3 can be applied without needing to have regard to the protections set out in the Withdrawal Agreement. This would apply to a person who becomes visa overstayer following the expiry of visitor leave or another type of leave granted on or after 1 January 2021.
For more information about benefit and other entitlements for EEA nationals, see the NRPF Network factsheet: supporting EEA nationals who are destitute or at risk of homelessness.
6.2 When can a human rights assessment be undertaken?
The guidance set out in this section is based on the information available at the time of writing and is informed by the duty of local authorities to uphold the rights of EEA nationals living in the UK, as emphasised by the IMA.
When an EEA national who is without lawful status in the UK qualifies for social services’ support, the local authority will need to identify whether the person has an entitlement to apply to the EU Settlement Scheme in order to establish whether to proceed to complete a human rights assessment. Further detail of the legal position and the Government’s policy protections are outlined in this section according to the person’s immigration situation.
It will not be advisable to proceed with a human rights assessment to consider return when a person is ‘in breach of immigration laws’ and one of the following circumstances applies:
- They have a pending ‘in-time’ application (submitted before 30 June 2021) but were not exercising a European right to reside on 31 December 2020.
- They were resident in the UK by 31 December 2020 but missed the deadline to apply to the EU Settlement Scheme and have not yet made an application.
- They have a pending late application (submitted after 30 June 2021).
- They failed to apply to the EU Settlement Scheme within 3 months of their EUSS family permit expiring (non-EEA family members).
Instead, the local authority may need to assist the person to access legal advice when this is required, such as to make a late application or challenge a refusal. When the person qualifies for social services’ support, this can be provided and may need to be ongoing until the application is concluded.
Where support is provided, the local authority may still find it useful to complete Part B of the template in order to document details of the outstanding application and any action needed to regularly review its progress, or what assistance may need to be given to help the person to access legal advice in order to make an application. Recording this information may be beneficial if multiple staff will be dealing with the person’s case and will also be necessary if the person’s EU Settlement Scheme application is unsuccessful and the local authority proceeds to consider the person’s ability to return to their country of origin.
If an EEA national does not have an entitlement to apply to the EU Settlement Scheme, or has made an unsuccessful application, then it will be appropriate for the local authority to progress a human rights assessment in order to consider the person’s ability to return. A human rights assessment can therefore be carried out when a person is ‘in breach of immigration laws’ and one of the following circumstances applies:
- The Home Office refuses to accept a late application.
- The Home Office refused to grant settled or pre-settled status and any subsequent administrative review or appeal has been unsuccessful.
- They became a visa overstayer following the expiry of six months visitor leave or another type of leave (when the person is not entitled to apply to the EU Settlement Scheme).
In such circumstances, the template can be completed in the usual way and an assessment of the person’s ability to return to their country of origin will need to be made. As part of this process, it will be necessary to ensure that the person has received recent immigration advice about their immigration options, particularly if they have made their previous applications without any legal representation.
Schedule 3 does not apply when an EEA national is lawfully present in the UK, such as when a person has pre-settled status or has a pending ‘in-time’ application and was exercising a European right to reside on 31 December 2020. In such cases, a human rights assessment will not be required and the usual eligibility criteria for social services’ support must be applied.
6.2.1 Pending ‘in-time’ application (made before 30 June 2021)
The lawful status of a person who submitted their EU Settlement Scheme application before the deadline of 30 June 2021 depends on whether or not they are protected by the Citizens’ Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020 (the ‘Grace Period Regulations’).
The Grace Period Regulations only preserve the lawful status and entitlements of a person with a pending EU Settlement Scheme application if the person was exercising a European right to reside on 31 December 2020 or had acquired a permanent right of residence by that date. Anyone who was not exercising a right to reside on 31 December 2020 is not protected by the Grace Period Regulations and is therefore technically without lawful status in the UK. However, the Government has effectively disregarded a person’s lack of lawful status for the purpose of enabling access to some entitlements, so a person’s status under the Grace Period Regulations will be irrelevant in practice.
Instead, entitlements are retained on the basis that a person has made an ‘in-time’ application. The Home Office does not make a distinction in the Confirmation of Acceptance notice between an applicant who was exercising a right to reside on 31 December 2020 and a person who was not. A person can rely on the Confirmation of Acceptance notice as evidence of their immigration position in order to access employment and other services whilst their application is pending. For example, in England they can use their Confirmation of Acceptance notice to demonstrate that they have the right to rent or to access free secondary healthcare. In June 2021, the DWP confirmed that pre-existing benefits received prior to 30 June 2021 will continue whilst the person’s application is pending.
However, whether a person is protected or not by the Grace Period Regulations is relevant when it comes to their entitlement for benefits and homelessness assistance, so local authorities will still encounter people with pending applications who are in need of social services’ support if they are destitute or at risk of homelessness and cannot meet right to reside requirements to qualify for benefits.
6.2.2 No pending application
Anyone who missed the deadline to apply to the EU Settlement Scheme will be unlawfully present in the UK. However, in line with the commitment in Article 18(1) of the Withdrawal Agreement, the Home Office will accept a late application if a person can show that they have a reasonable excuse for missing the deadline. Examples of ‘reasonable grounds’ are given in the Home Office caseworker guidance, EU Settlement Scheme: EU, other EEA and Swiss citizens and their family members. It appears that late applications are likely to be accepted from children, people who lack mental capacity, and adults with care and support needs.
Anyone encountered by Immigration Enforcement who has not yet applied will be issued with a notice and will have 28 days to make a late application. No enforcement action will be undertaken by the Home Office during the 28 day period. This policy is set out in the Home Office caseworker guidance, EU Settlement Scheme: EU, other EEA and Swiss citizens and their family members.
A person without lawful status in the UK will normally be unable to work, will not have the right to rent (in England), and cannot access free secondary healthcare. They will be subject to immigration control and will have no recourse to public funds, so will be ineligible for benefits and homelessness assistance. However, some policy protections have been introduced, which mean that a person who missed the deadline may not immediately lose their entitlements if they were already working or claiming benefits. Employers and landlords are not required by the Home Office to make retrospective status checks, although when a person is identified as not having applied to the EU Settlement Scheme, they will need to take action to make a late application or risk losing their employment or right to rent. The DWP is also giving people with pre-existing benefit claims a period of time to make a late application before their claim is stopped.
The Government has therefore adopted the position of encouraging people to make a late application and enabling some entitlements to continue despite a person’s lack of lawful status. Once a late application is submitted then the person may be able to access other entitlements, such as free secondary healthcare and new employment.
Although EU Settlement Scheme applications can, in certain circumstances, be made from outside of the UK, the local authority may risk impeding the person’s right to make a late application by withholding or withdrawing support on the basis that the person can leave the UK in order to apply. For example, complications with regards to meeting the continuous residence requirement may arise, and obtaining evidence of past residence or accessing legal advice or practical assistance with making the application will be much more difficult.
6.2.3 Pending late application (made after 30 June 2021)
On 6 August 2021, the Government announced that people who make a late application will be granted temporary protection whilst their application is pending, in order to comply with Article 18 (3) of the Withdrawal Agreement. Guidance for employers and landlords makes it clear that they can rely on a person’s Confirmation of Acceptance notice as evidence that they can work or have the right to rent. Additionally, secondary healthcare will be free for people who have made a late application.
In Housing Benefit adjudication circular A10/2021, the DWP states, at paragraph 12:
‘Where a claimant has received a certificate of application from the Home Office, local authority (LA) Decision Makers should accept that the claimant has submitted a late application which has been verified and validated by the Home Office and treat it the same way as those who submitted an EUSS application before 30 June 2021. These individuals can access HB and other income related benefits until the outcome of their application has been decided or they have exhausted their appeal rights.’
The Homelessness Code of Guidance for local authorities (applicable in England) states, at paragraph 7.34(a):
‘In line with the Withdrawal Agreements, late applications to the EU Settlement Scheme will be accepted where there are reasonable grounds for missing the 30 June 2021 deadline. An applicant who has made a valid application for the EU Settlement Scheme and is awaiting a decision, who was resident and exercising a qualifying right to reside in the UK by 31 December 2020 should be treated as eligible if they have a permanent right to reside (normally acquired after 5 years), or are working, self employed or a Baumbast Carer at the time of their application for homelessness assistance.’
Once a person has evidence that they have made a late application, this guidance suggests that they will be able to apply for benefits and homelessness assistance, subject to meeting right to reside tests. It is likely that some people making late applications may continue to be ineligible for benefits or homelessness assistance if they cannot satisfy the right to reside requirements, and, therefore, could be in need of social services’ support if they are destitute or at risk of homelessness.
6.2.4 Application refused or late application not accepted
The majority of EU Settlement Scheme applications will succeed, with the Home Office reporting that by the end of August, 3% (145,200) had been refused. However, this is not an insignificant number.
A person who does not meet the continuous residence requirement in order to be granted settled status will instead be granted pre-settled status, therefore outright refusals will most likely be due to a person not meeting suitability requirements. Full details of the suitability requirements are set out in the Home Office caseworker guidance, EU Settlement Scheme: suitability requirements.
It is also possible that the Home Office could refuse to accept a late application if a person is unable to demonstrate that they have reasonable grounds for missing the deadline. However, this should only be in the rarest of instances. In its information for local authorities, the Home Office states: ‘The Home Office will take a flexible and pragmatic approach to accepting late applications and will continue to look for reasons to grant applications, not to refuse them’.
If a person’s EU Settlement Scheme has been unsuccessful and they have exhausted all means of challenging this, then they will be unlawfully present in the UK and the local authority may proceed to complete a human rights assessment to determine whether to withhold or withdraw social services’ support. However, before proceeding to consider their ability to return, the person would need to be given an opportunity to access legal advice to find out what their immigration options are, particularly if they made their original application without any legal representation or did not challenge a refusal by submitting an administrative review or appeal.
6.2.5 Visa overstayer (entered on or after 1 January 2021)
EEA nationals who entered the UK since 1 January 2021 are required to obtain leave to enter for a specific purpose, such as to visit, work, or study. Should they remain in the UK after their leave has expired without applying for further leave then they will become a visa overstayer and unlawfully present in the UK. In such cases, the local authority can proceed to undertake a human rights assessment in the usual way.
EEA nationals can enter the UK through e-gates using a national ID card (up until 30 September 2021) or a passport. Those entering as visitors will be deemed to have six months’ visitor leave and those who have obtained a visa in advance to work or study will only have access to electronic evidence of their status. Therefore, it will be important to obtain confirmation of the person’s status from the Home Office to determine whether their leave is still valid before a human rights assessment is carried out.