Section 17 if I have status under EUSS

People who are citizens of EU countries (with the exception of Ireland) or from, Norway, Iceland or Liechtenstein (EEA) or Switzerland needed to apply to the EU Settlement Scheme (EUSS) to continue lawfully residing in the UK. The deadline for most people to apply to the EU Settlement Scheme was 30 June 2021, but it might still be possible to make a late application some cases.

If an application under the EUSS is successful, the applicant is either granted settled or pre-settled status. If someone has pre-settled status they can usually apply for settled status once they’ve lived in the UK continuously for five years. 

EEA nationals with pre-settled status and a qualifying right to reside

EEA nationals who have pre-settled status and want to apply for means-tested benefits (such as Universal Credit, Tax Credits, or Housing Benefit), will usually have to pass the Right to Reside test. An EEA national will usually pass the Right to Reside test if they are a “qualified person”. This usually requires that the EEA national is working, is self-employed, or has temporarily stopped work due to illness or pregnancy.

More information on the right to reside for benefits purposes can be found here.

EEA nationals with pre-settled status and no qualifying right to reside

The access to public funds of EEA nationals with pre-settled status who have no qualifying right to reside for the purposes of Universal Credit has been the subject of a court case, SSWP v AT (AIRE Centre and IMA Intervening) [2022] UKUT 330 (AAC); SSWP v AT (AIRE Centre and IMA intervening) [2023] EWCA Civ  1307

In November 2023, the Upper Tribunal held that AT, an EEA national with pre-settled status but no qualifying EU right to reside for the purposes of universal credit, is entitled to rely upon the EU Charter of Fundamental Rights even after the end of the Brexit “transition period” (i.e. after 31 December 2020).

More information about the ruling can be found on the website of the Child Poverty Action Group who represented the EU national in this case: https://cpag.org.uk/welfare-rights/resources/test-case/destitute-eu-nationals-pss-can-rely-eu-charter-fundamental-rights

EEA nationals with settled status.

EEA nationals who have settled status have full access to benefits as they have a qualifying right to reside for all benefits that have this requirement.

Non-EEA family members of EEA nationals can ‘mirror’ the rights of the EEA person as long as they meet the criteria for being classed as a family member. They might have a right to reside as their family member and have the same right to claim benefits as them. For example, if their husband, wife or civil partner is working in the UK, they will have a right to reside as the family member of a worker, even if they are unemployed.

Schedule 3 of the Nationality, Immigration and Asylum Act 2002 excludes some adult migrants from accessing section 17 support. The full list of excluded individuals is here. The second class of ineligible person "citizen of other EEA State" was removed in 2020 following the withdrawal agreement. This means that if an EEA citizen has pre-settled status then they are not excluded under schedule 3. They are not at risk of removal from the UK and should not be advised to return to their country of origin.

EEA nationals with pre-settled status who have a child in the family and who do not otherwise qualify for means-tested benefits, can therefore access support from their local authority under section 17 Children Act 1989. Non-EEA nationals whose mirror rights also do give access to public funds, may similarly be able to access section 17.

EEA nationals who arrived in the UK after the end of the transition period (December 2020) and who are undocumented with a pending immigration application are excluded by schedule 3. In these situations, individuals should seek urgent immigration advice.

Chen carers

A Chen carer is a primary carer of a self-sufficient EU citizen child. The child must have sufficient resources to prevent them becoming a burden on the social assistance system, which means they must be self-sufficient.

The Home Office guidance states:

Where funds of the primary carer are from the UK’s social assistance system, irrespective of the fact that the child is not themselves the claimant, the child can, in principle, be considered an unreasonable burden on that system if the amount of funds claimed is of sufficient magnitude that it is unreasonable for the UK to shoulder.

It is not completely clear what counts as part of the 'UK's social assistance system'. The Home Office guidance does not define the 'UK's social assistance system'. However, DWP guidance defines social assistance as including the following (means-tested) benefits: Housing Benefit, Employment and Support Allowance (income related), Income Support, Jobseeker's Allowance (income based), State Pension Credit, Universal Credit. The Universal Credit guidance says social assistance includes Universal Credit and Pension Credit.

This means that it might be possible for Chen carers to access section 17 support, but they should get immigration advice first, particularly as being in section 17 support long-term could make it more difficult for the carer to be granted settled status.