Date Legislation considered: 20 December 2022
Date Legislation in Force: 01 December 2022
Potential Right(s) Affected: Residency / Discrimination / Equal Treatment
What does the legislation do?
The Regulations revoke and replace the Childcare (Early Years Provision Free of Charge (Extended Entitlement) Regulations 2016 (“2016 Regulations”).
The Explanatory Memorandum provides that the purpose of the Regulations is to make minor technical changes to the 2016 Regulations governing 30 hours free childcare for working parents of three- and four-year-olds. The changes which are not relevant for the IMA’s purposes relate to the ‘competing declarations’ process where more than one parent applies for 30 hours, settling appeals by agreement, self-assessments and IR35 matters, and the inclusion of Scottish Carers Assistance in the list of work replacement benefits for 30 hours free childcare.
Regulation 11 of the Regulations concerns eligibility requirements for the childcare offer which is the subject of this report.
In 2021, the IMA worked with the DFE to correct a specific eligibility provision in the 2016 Regulations which was incompatible with the Citizens’ Rights Agreements.
In order to be eligible for 30 hours free childcare, one of the conditions an applying parent must meet is that they must be ‘ordinarily resident’ in the UK – see regulation 11.
‘Ordinary residence’ is not defined within legislation however case-law has held that a person cannot be ‘ordinarily resident’ where their residence is unlawful.
EU and EEA EFTA citizens who have been granted status under the EUSS (either pre-settled or settled) are in the UK lawfully under the Immigration Rules. The Citizens’ Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020 make provision for those EU and EEA EFTA citizens who are within scope of the Citizens’ Rights Agreements to also be lawfully resident until their application is finally determined.
Whilst joining family members (within their first 3 months after arrival in the UK) and late applicants to the EUSS have their rights under the Agreements protected by Article 18(3) of the Withdrawal Agreement, there is no domestic legislation in place to specifically reflect these rights. The UK Government’s Home Office however recognised these rights in an announcement made on 6 August 2021.
During correspondence with the DFE in respect of the previous incompatible amendments made to the 2016 Regulations, officials confirmed to the IMA that late applicants to the EUSS will be eligible for the childcare offer until their application is finally determined. Similarly joining family members will be eligible during their initial 3-month grace period. In the event they subsequently make an application for status (whether in-time or late) they will be eligible from the point at which they make their application until it is finally determined.
The IMA raises no issues of concern at this stage, however any citizen experiencing difficulties in exercising their rights are encouraged to report a complaint through the IMA Portal.
Further information about the IMA and guidance on how to report complaints can also be found on the Website.