IMA works to ensure landmark decision is correctly implemented by DWP

The IMA, which was set up to monitor and promote the rights of EU and EEA EFTA citizens and their family members, intervened in the case against the Secretary of State for Work and Pensions’ (SSWP).

In the case, DWP had said that an EU citizen (AT) was refused Universal Credit as she had pre-settled status but did not have a qualifying right to reside. By not being able to claim the benefit, AT was at risk of destitution as she had fled her home with her child after being the victim of domestic violence.

The courts consistently found that the protection of the Charter of Fundamental Rights of the European Union (the Charter) to be able to live in dignified conditions applies under the Withdrawal Agreement in certain circumstances. In this case, AT was able to rely on her Charter right to live in dignified conditions and therefore was able to access Universal Credit.

Claims for Universal Credit for those in similar circumstances to AT had their applications put on hold whilst litigation was ongoing. Following the conclusion of this case, the IMA is pleased to confirm these applications are now being processed.

The IMA is now monitoring how DWP is implementing the judgment and the progress on its plans to clear the backlog of Universal Credit applications that were previously put on hold. It is also looking into the wider implementation of the Charter to eligible cohorts.

The IMA continues to seek clarity on the way that claims are being assessed to assure itself that the judgment is being properly applied. The DWP has released guidance to caseworkers on Charter rights assessment following SSWP v AT. This guidance is being used to aid caseworkers in their decision making in cases similar to AT. The caseworker guidance is being used in the historic cases that are now being processed and for all future claims. The IMA has provided feedback to DWP on the revised caseworker guidance.

A further public statement with updates will be published in due course.

The IMA also continues to review the broader impact of the judgment across Government. The IMA is engaging with the Ministry of Housing, Communities and Local Government to assess the impact of the judgment to homelessness assistance.

The IMA welcomes the collaborative approach to resolve matters in these areas as we recognise this impacts some of the most vulnerable citizens in our society.

The IMA encourages any citizens who have been impacted by the judgment and have experienced issues with either Universal Credit, Pension Credit, Housing Benefit or homelessness assistance to contact us through our online portal.

IMA urges parents and carers to check their children’s EUSS application status

Concerns have been raised with the IMA regarding parents and carers paying thousands of pounds for NHS treatment for their children after missing the deadline for submitting an EUSS application on their behalf.

Parents and carers must apply to the EUSS within 90 days of their child being born or adopted in the UK; or if the child is living abroad and coming to join them in the UK.

Although the deadline for applications for most people was 30 June 2021, parents and carers can still apply for their child – or they can apply for themselves – if they lived in the UK by 31 December 2020.

EU and EEA EFTA citizens who have applied to the EUSS, have a number of rights in the UK or Gibraltar. Their family members also share these rights.

Applying for EUSS protects rights to:

Work in the UK

Use the NHS for free

Enroll in education or study in the UK

Access public funds such as benefits and pensions (if eligible)

Travel in and out of the UK

Further information on how to check whether your child is eligible to apply and the documents you will need for the application can be found on the GOV.UK website.

Applying to the EUSS is free. You can apply here.

IMA is assured that Health and Social Care Trusts in Northern Ireland are protecting the rights of looked after children and care leavers

Following the UK’s departure from the EU, all eligible citizens, including children, are required to apply to the EU Settlement Scheme (EUSS) and obtain a grant of Pre-Settled or Settled Status to guarantee their rights to live, work, study, and access benefits in the UK.

The IMA launched a review of Health and Social Care Trusts in Northern Ireland to establish how they identify looked after children and care leavers who need to apply to the EUSS, and the procedures put in place to monitor those applications.   

As part of our monitoring duties, we are undertaking assurance reviews across all local authorities in England, Northern Ireland, Scotland and Wales. You can read our Assurance Review Reports here.

The initial review in Northern Ireland looked at information in three key areas; identification, record keeping and retrospective checks, with each local authority categorised as red, amber or green in a grading system.  

The IMA identified no overarching concerns based on the responses from all five Health and Social Care Trusts and is sufficiently assured based on the information provided about the robustness of identification processes, record keeping and retrospective checks. 

The report can be located here.

Pam Everett, IMA Director of Operational Delivery said: “The IMA has welcomed the positive collaboration with Health and Social Care Trusts in Northern Ireland who have sufficiently assured the IMA that each Trust is discharging their responsibilities and are providing appropriate support in relation to making and supporting EUSS applications on behalf of all eligible looked after children, children in receipt of Health and Social Care Trust care and support, and care leavers. 

“Those who have successful applications should have guaranteed their rights to continue to live, study and work in the UK.” 

Based on the information provided, the IMA does not at this stage consider that further compliance action is required by any Health and Social Care Trust in Northern Ireland.  

The initial review of all local authorities and Health and Social Care across the UK have been completed as part of Phase 1 of this work. The IMA will continue with individual assurance reviews across England and Scotland.

IMA Welcomes Home Office Decisions On Measures To Implement Landmark Judgment

The judge had ruled in favour of the IMA in December 2022 and clarified that the Withdrawal Agreement residence right of a person with pre-settled status does not expire because someone does not make a second application to the scheme, provided they continue to meet the necessary conditions.

The judgment also found that irrespective of an application for settled status, those who have lived here for five years and have continued to meet the relevant conditions (as set out in the Agreements) are automatically entitled to permanent residence rights under the relevant Agreements.

The IMA raised significant concerns with the Home Office about its original measures to implement the judgement and discussed further changes to mitigate these issues.

In the IMA’s view, the Home Office’s initial approach of automatically applying a two-year extension to pre-settled status holders shortly before they approach their current date of expiry did not go far enough to address the judgment. This was because it could potentially adversely impact their rights.

The IMA was concerned this position may have continued to cause challenges for citizens, for example with employment or housing, due to the continued temporary nature of pre settled status being visible to third parties when checking a citizens’ status. The judgment was clear, status should not expire providing the person continues to meet the underlying conditions.

The IMA emphasised its concerns about this approach by the Home Office and sought a review of how they were implementing the judgment. The Home Office has now outlined several further changes it intends to make, some of which have been undertaken. These include:

Removal of pre-settled expiry dates from View & Prove and right to work (including licensing) and right to rent checking services for third parties – this has now been undertaken;
Removal of the requirement for employers and landlords to carry out follow-up checks once pre-settled status has been initially determined;
A five-year extension to pre-settled status instead of the current two-year extension and;
A public statement to make it clear to citizens how the judgment is being implemented.

Miranda Biddle, Chief Executive of IMA said: “From the outset we have always been clear that the court’s ruling is implemented in a manner that provides clarity and practical resolution for citizens.

“At the same time, it is crucial that in implementing the judgment, the uncertainties being faced in relation to citizens’ ability to access and prove their rights are addressed and concluded.

“We therefore welcome the package of measures which the Home Office has announced they will be putting in place as a pragmatic way of ensuring the principles of the judgment are upheld.

“This will mean that citizens with pre-settled status are assured they will not experience issues when proving their rights to work and rent as their digital status end-date will not be visible to landlords, employers and other external third parties.

“The IMA will continue to hold the Home Office to account and will now be monitoring how these measures are implemented.”

The IMA will also continue to give updates on this issue and will be seeking assurance on how these changes are made. We also reserve the right to take further action, including litigation, if necessary, if these measures do not prove effective in ensuring that the rights of citizens are upheld.

Anyone facing difficulties accessing their rights is encouraged to contact the IMA for support.

For more information visit the IMA’s website for detailed information on the rights of EU and EEA EFTA citizens and their family members who have applied to the EUSS.

Citizens’ Rights’ Watchdog Calls For Resolution On Landmark High Court Case Implementation

The judge ruled in favour of the IMA and clarified that the Withdrawal Agreement residence right of a person with pre-settled status does not expire for failure to make a second application to the scheme. This is provided they continue to meet the conditions for it.

The judgment also found that, irrespective of an application for settled status, those who have lived here for five years and have continued to meet the relevant conditions (as set out in the Agreements), are automatically entitled to permanent residence rights under the relevant Agreement.

In the IMA’s view, the current Home Office approach of automatically applying a two-year extension to all pre-settled status holders shortly before they approach their current date of expiry does not go far enough to address the first aspect of the High Court’s ruling. This is because it could potentially adversely impact their residency rights.

The IMA is concerned that this approach may continue to cause challenges for citizens, for example with employment or housing, due to the continued temporary nature of pre settled status being visible on official documents. However, status should not expire in practice providing the person continues to meet the underlying conditions.

The IMA is holding regular meetings with the Home Office to better understand its plans for how the judgment will be implemented. We understand that the Home Office is nearing a final view on proposals that seek to provide practical solutions for citizens. The IMA will continue to promote workable resolutions and monitor the effectiveness of any changes.

Miranda Biddle, Chief Executive of IMA said:

“The IMA is keen to ensure that citizens’ rights are upheld and the court’s ruling is implemented in a manner that provides clarity and practical resolution for citizens.

It is crucial that in implementing the judgment the uncertainties being faced in relation to citizens’ ability to live, work and raise their families in the UK are addressed and concluded.

The IMA will continue to hold the Home Office to account and urge them to implement the necessary changes when finalised.”

Anyone facing difficulties accessing their rights is encouraged to contact the IMA for support. There are also a number of supporting organisations listed on our website who can assist with EUSS applications. If you would like to share information with the IMA on behalf of EU and EEA EFTA citizens, then please visit www.ima-citizensrights/report-a-complaint

Interim Chair Appointed to IMA

This follows the resignation of Sir Ashley Fox after being selected as the Parliamentary Candidate for the Bridgwater constituency for the Conservative Party.

Leo has been a Board Member and Deputy Chair of the IMA since its inception in December 2020. He is a Member of the Senate of Queen’s University Belfast and a member of the Council of the Institute of Professional and Legal Studies in Belfast.

Leo said, “I have thoroughly enjoyed being a part of the IMA Board for the past three years as we have established ourselves to undertake the important work of the IMA to monitor and promote how the rights of EU and EEA EFTA citizens and their family members are upheld by public bodies.

“I am proud of what has been achieved so far and am delighted to take on the role of Interim Chair to help continue the good work of the IMA until a permanent Chair is in place.”

Chief Executive of the IMA, Miranda Biddle said: “I am grateful for the support Leo has provided to the IMA since Sir Ashley stood down from his role. I look forward to continuing to work with Leo to ensure the IMA is fulfilling its duties to promote and protect the rights of those EU and EEA EFTA citizens who have rights under the Withdrawal and Separation Agreements so that they can continue to live, work and raise families, here and in Gibraltar, as they did before the UK left the EU.”

The IMA, Ministry of Justice and the public appointments team are now working at pace on the recruitment process for the permanent position of Chair of the IMA.

Full details of the recruitment process can be found here.

Citizens’ Rights Watchdog Welcomes Supreme Court Appeal Decision

This means that the Court of Appeal’s decision stands, which we welcome due to the clarity that this decision gives on key areas of the Withdrawal Agreement.

The IMA, which was set up to monitor and promote the rights of EU and EEA EFTA citizens and their family members, had intervened in the case which concerned whether the SSWP had breached the rights of an EU citizen (AT) by refusing her claim for Universal Credit.

The SSWP had said that AT was not allowed to claim Universal Credit as while she had pre-settled status, she did not have a qualifying right to reside such as being a worker and therefore was ineligible to claim this benefit.

AT successfully argued throughout the courts, including in the Upper Tribunal and Court of Appeal, that in refusing her Universal Credit, the SSWP had breached her Withdrawal Agreement rights. The courts consistently found that the protection in the Charter of Fundamental Rights to be able to live in dignified conditions applies under the Withdrawal Agreement in certain circumstances.

The IMA’s independent view was that AT was able to rely on her Charter right to live in dignified conditions and therefore was able to access Universal Credit. This was also the basis of AT’s case. The Court of Appeal agreed.

The decision of the Supreme Court now means that other citizens who have had their claims for Universal Credit put on hold for similar reasons to AT will now have to have their claims decided.

The IMA also believes that the decision has a broader impact and will continue to speak to the SSWP about how he will implement the judgment and will provide further updates when these are available.

General Counsel for the IMA, Rhys Davies said, “We intervened in this matter as it is a case of significant public importance concerning the interpretation of the Withdrawal Agreement and also the continued role of the Charter following the end of the transition period. We now have clarity from the courts and can move to ensure that those within scope of the Withdrawal Agreement can fully access their rights.”

The Court of Appeal hearing was listed on 8-10 March 2023. The IMA’s skeleton argument can be read here and the judgment here.

The IMA encourages any citizen experiencing difficulties in exercising their rights to make them aware of this through their online portal.

If you are engaging in litigation in relation to your Withdrawal Agreement rights, please tell us by sending us details at litigation@IMA-citizensrights.org.uk. It helps to inform us where there may be issues with citizens accessing their rights.

Citizens Rights Watchdog Gives Update on Judicial Review

In December 2022, the High Court found certain aspects of the EU Settlement Scheme (EUSS) to be unlawful. The Court’s ruling affects more than two million EU and EEA EFTA citizens with pre-settled status.

The judge ruled that individuals with rights under the Agreements should not lose their right to live in the UK if they do not make a second application to the EUSS. Also, those with pre-settled status automatically acquire permanent residence rights once they have lived here for five years and met the relevant conditions under the Agreements.

The EUSS is the way which EU and EEA EFTA citizens and their family members secure the right to live in the UK. There are two types of EUSS status: pre-settled status for those that have lived in the UK for under five years and settled status, usually for those who have lived here for over five years.

The Home Office plans to address the High Court’s judgment by granting a two-year extension of pre-settled status for those who haven’t switched to settled status shortly before their original expiry date, automatically converting as many pre-settled status holders to settled status as possible and ensuring individuals can rely on their permanent residency rights once acquired.

The IMA is concerned that a two-year extension for pre-settled status does not address the Court’s ruling and that citizens may face challenges in areas of their lives, such as employment or housing due to the temporary nature of pre-settled status being reflected on official documents.

It is also highlighting a lack of clarity for citizens and authorities regarding automatic acquisition of permanent rights, leading to potential confusion.

The IMA is urging the Home Office to make a public statement clarifying the rights of citizens under the Agreements.

Miranda Biddle, Chief Executive of IMA said: “We continue to work with the Home Office to resolve potential issues arising from the proposed implementation of the High Court judgment. While the Home Office has been effective in many cases, some citizens face uncertainty impacting their ability to live, work, and raise families in the UK.”

The IMA will continue to give updates on this issue but in the meantime, anyone facing difficulties accessing their rights is encouraged to contact the IMA for support.

For more information visit the IMA’s website for detailed information on the rights of EU and EEA EFTA citizens who have applied to the EUSS.

For further information on changes to the EU Settlement Scheme as a result of the Judicial Review please visit the FAQs section of our website.

Citizens’ Rights Watchdog Marks Third Year in Operation

The IMA was established at 11pm on 31 December 2020. We were set up to monitor public bodies in the UK and Gibraltar to ensure they are upholding citizens’ rights as well promote the rights to which EU and EEA EFTA citizens and their family members are entitled to receive.

These rights broadly give European citizens the rights to live here, working, studying and raising their families as they did before the UK left the EU.

During our first three years in operation some of the work we’ve undertaken has included:

Issuing successful judicial review proceedings against the Home Office, as the IMA considers that citizens who fail to apply for Settled Status before the expiry of their Pre-Settled Status automatically lose their rights, is unlawful. In taking legal action the IMA wanted to provide clarity for millions of citizens with Pre-Settled Status.
Launching a number of inquiries including one to assess whether there are delays with issuing of Certificates of Application to the EUSS and making a number of recommendations.
Issuing an open letter to airline carriers to remind them of the rights of EU and EEA EFTA citizens and their family members entering the UK.
Undertaking a number of surveys to assess the sentiment of EU and EEA EFTA citizens living in the UK and Gibraltar after the UK left the EU.
Reaching an agreement with HMRC to resolve delays experienced by EU citizens when obtaining National Insurance documentation.This followed a number of complaints from European citizens experiencing problems accessing social security in their home countries who relied on a Statement of National Insurance Contributions from HMRC when applying for benefits.
Analysing over 100 pieces of legislation.
Receiving a Practice Direction which means that when a party serves a statement of a legal case which raises a citizens’ rights issue, that party must send a copy of the statement of case to the IMA at the same time.
Receiving confirmation from the Home Office that EU Settlement Scheme (EUSS) family permits can be granted to dependent relatives who are extended family members of EU or EEA EFTA citizens who applied for an EEA family permit before 31 December 2020 and would have been granted this, including on appeal, had the route not closed on 30th June 2021.
Working with the Department for Education to amend legislation which could have excluded some EU and EEA EFTA families living and working in England from receiving up to 30 hours of free childcare.
Calling on the Home Office to clarify the rights of EU citizens applying late to the EUSS and reminding public bodies of their duty to uphold the rights of late applicants or those who might be awaiting the results of their EUSS applications. The IMA also advised all UK universities and colleges to ensure they were aware of the latest guidance for students who had applied to the EUSS.
Ensuring EU and EEA EFTA citizens with Pre-Settled and Settled Status continue to receive local authority housing support by Newham Council and Pembrokeshire County Council.
Launching a #YourRights campaign on Instagram, Facebook and European-language podcasts and radio stations to increase understanding of EU and EEA EFTA citizens’ rights in the UK and Gibraltar after Brexit.
Recommending changes to the process for EU and EEA EFTA citizens to apply for UK-issued European Health Insurance Cards (EHIC) after the system became overwhelmed earlier this year. This followed several complaints from EU citizens who were experiencing delays and uncertainty in obtaining the cards.

The IMA encourages citizens and their family members who believe their rights are not being upheld to make them aware of this through their online portal.

Miranda Biddle, IMA Chief Executive said:

“When the IMA launched three years ago it was with a clear intent to do all we can to make sure the lives of EU and EEA EFTA citizens and their family members living here and in Gibraltar, raising their families, working, studying and receiving support where needed could continue as normal after the UK left the EU.

“As part of this we have always been keen to work with public bodies to ensure we can bring swift resolution to any issues so that citizens receive those rights to which they are entitled with as little inconvenience and interruption as possible.

“From the work we have undertaken I think we have demonstrated that we are not afraid to take action where it is needed and we look forward to continuing to work with public bodies and our stakeholders to ensure that citizens and their family members can continue to exercise their rights.”

IMA survey identifies concerns about current and future protection of citizens’ rights

The survey, which was completed by nearly 1,000 EU and EEA EFTA citizens found that:

62% of respondents felt they had not been discriminated against based on their nationality.
58% of respondents reported experiencing no difficulties in accessing their rights.
7 in 10 respondents reported awareness of their citizens’ rights.

Encouraging results from the survey show a continued increase in awareness of citizens’ rights with 7 in 10 respondents reporting awareness of their rights. Only 1 in 2 citizens were aware of their rights in the IMA’s first annual survey in 2021.

Although the majority of respondents reported no difficulties in accessing their rights, the IMA continues to recommend all UK public bodies build confidence with EU and EEA EFTA citizens, their family members, and eligible third country nationals that their rights will be protected.

The survey highlighted that 86% of all respondents indicated they had low or no trust in public bodies. This is the third year that survey results have demonstrated reducing citizen confidence.

Survey respondents made reference to the UK political environment, Windrush and futureproofing of conferred rights being influencing factors in their trust of Government and Public Authorities.

Governments in the UK and Gibraltar must also continue to promote rights in legislation, policy, and practice across all demographics, with particular concern for hard to reach, vulnerable and marginalised citizens.

Pam Everett, IMA Director of Operational Delivery said:

“As an organisation we are pleased that awareness of citizens’ rights continues to increase. We recognise that we must continue to build awareness of our organisation in order to continue to build citizens’ confidence and trust so that they are empowered to share their experiences with us so that we can take action where it is needed.”

“The results of this year’s survey serve as a reminder for all public bodies to continue to build trust with EU and EEA EFTA citizens and their family members by promoting and protecting their rights.

“Governments in the UK and Gibraltar must also continue to promote rights in legislation, policy, and practice across all demographics, with particular concern for hard to reach, vulnerable and marginalised citizens to ensure that citizen’s rights are protected and confidence is improved”