Personal scope of the EU coordination rules

As a result of the UK leaving the EU, 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; and
•  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, Part 3 or Article 23(4) of the Swiss Citizens’ Rights Agreement, or Title III of the EEA EFTA Separation Agreement. In most cases that will mean both:

• EEA or Swiss nationals who arrived in the UK before the end of 2020; and
• UK nationals living in an EEA member state or Switzerland, who were 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. The Home Office requires that these individuals apply to the European Union Settlement Scheme (EUSS) to obtain either pre-settled or settled status. Individuals who arrived before this date but have yet to apply to the EUSS are subject to immigration control and are therefore ineligible for PADP unless and until an application to the 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 arrived on or after 1 January 2021 should be treated in the same way as third country nationals, except for where they are joining a family member with pre-settled or settled status. Individuals 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 three 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.

For the purposes of PADP, it is irrelevant which of the two statuses the applicant holds, as long as they have one of them.

Where an individual is granted pre-settled or settled status, they will remain eligible for PADP assuming no relevant change in circumstances occurs and subject to them meeting all of the other eligibility criteria.

Where an individual is refused EUSS (EU Settlement Scheme) status and has no other valid immigration status, they will become subject to immigration control and their eligibility for benefits 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 countries with which the UK has an agreement replicating EU agreements (Morocco and Tunisia);
• third country nationals who have lawfully worked in an EEA member state or Switzerland and have arrived in Scotland from the EEA or Switzerland; and
• family members of those nationals. Family member here means spouse (including same-sex marriage where applicable), children who are minors and dependent adult children (Article 1 Title 1(i) Regulation EC 883/2004).

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

• when someone arrived in Scotland: and
• their immigration 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 five 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:

• a total of six months in a 12 month period; or
• 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.