Personal scope of the EU coordination rules

As a result of EU Exit, whether or not an individual is subject to the EU rules on social security coordination will depend on both

• when that individual moved between European countries
• whether or not they have remained in a ‘cross-border situation’ (by continuing to live abroad) until the point of their application.

Individuals are subject to the EU rules if they are covered by Title III of Part 2 the Withdrawal Agreement between the UK and the EU. In most cases that will mean both

• EEA or Swiss nationals who arrived in the UK before the end of 2020
• a UK national living in another EEA member state or Switzerland who was living in that country before the end of 2020. These individuals are known as the ‘protected cohort’ while they remain in their cross-border situation.

For someone to be part of this protected cohort in the UK they must have moved to the UK before 1 January 2021. Individuals who arrived before this date but have yet to apply for EU settled status are subject to immigration control and are therefore ineligible for ADP unless and until an application to the European Union Settlement Scheme (EUSS) is submitted, at which point the individual and any joining family members satisfy the residence and presence criteria unless they receive a negative EUSS decision and have exhausted all appeal rights against that decision. The basis for this position is that during an EUSS application process, individuals are not subject to immigration control unless and until they receive a negative decision and they have exhausted all appeal rights. Individuals who arrive after the end of 2020 should be treated in the same way as third country nationals, except for where they are joining a family member with settlement status. Family members who are joining a member of their family who already has pre-settled or settled status are able to enter the protected cohort even if they arrive after the end of 2020, provided they make an application within 3 months of arrival. Those who apply after their initial three month period in the UK will be assessed on an individual basis by the Home Office; their EUSS status may be granted if the reason for their late application is accepted, and their rights will be protected during the assessment period.

Individuals applying for settlement in the UK can be awarded either pre-settled or settled status. For the purposes of ADP, it is irrelevant which of the two statuses the applicant holds, as long as they have one of them.

Where an individual is awarded settled status after their application has been considered, they will remain eligible for support with no relevant change in circumstances subject to them meeting other eligibility criteria.

Where an individual is refused settled status after their application has been considered, they will become subject to immigration control and their eligibility for support will be revoked. This will constitute a change in circumstance and will trigger a determination without application.

The people able to enter the protected cohort in this way are:

• nationals of an EEA member state or Switzerland
• workers from the third countries with which the EU has an agreement
• third country nationals who have lawfully worked in an EEA member state and have arrived in Scotland from the EEA or Switzerland
• family members of those nationals. Family member here means spouse, children who are minors and dependent adult children (Article 1 Title 1(i) Regulation EC 883/04).

The coordination rules apply to people in the protected cohort, their eligibility is be subject to different criteria than that of UK or third country nationals. It is important to establish both:

• when someone arrived in Scotland
• their settlement status

in order to apply the correct rules.

Individuals with settled status will stay in the protected cohort unless they leave the UK for more than 5 years.

There are more ways the international movements of those with pre-settled status could affect their membership of the cohort. Individuals with pre-settled status can move away either for up to:

• total of 6 months in a 12 month period
• a single period of up to 12 months for an important reason such as pregnancy, serious illness or training 

and still be in the protected cohort. There is no restriction on the number of absences permitted, provided that the total period of absence does not exceed six months in any 12-month period. Longer absences are permitted for compulsory military service.

Other international agreements

There are additional specific UK international social security agreements with Gibraltar and the Republic of Ireland. Irish or UK nationals moving between Ireland and the UK, and individuals of any nationality, moving between the UK and Gibraltar. will essentially continue to be subject to the EU coordination rules in future. This is regardless of whether that movement takes place before or after the end of 2020. Individuals covered by the Irish Agreement making an application in Scotland must have been present in the Common Travel Area (which includes Ireland) for 26 of the last 52 weeks. The usual rules on competence apply.

The agreement with Gibraltar essentially replicates the provisions of the EU rules and applies those to individuals of any nationality moving between Gibraltar and the UK, as though the UK and Gibraltar were separate EU member states,

Other UK international agreements mean individuals who are both:

• nationals of either Tunisia or Morocco
• in employment in the UK

should have their applications from within Scotland assessed as though they were in the protected cohort. That is, the EU rules should be applied.