CBTM10015 - Withdrawal Agreement – The Immigration and Social Security Co-ordination (EU Withdrawal Act) 2020

Withdrawal Agreement – the European Union (Withdrawal Agreement) Act 2020

The UK left the European Union on 31 January 2020 and entered a transitional period (TP)which ended on 31 December 2020.

As the UK left the EU, it also ceased applying the European Economic Area (EEA) Agreement and the EU-Switzerland Free Movement of Persons Agreement on 31 December 2021.

The new rules governing the new relationship between the EU, the EEA and Switzerland and the UK took effect from 1 January 2021.

The UK-EU Withdrawal Agreement (the WA), and equivalent provisions in the UK-EEA EFTA Separation Agreement (the SA) and Swiss citizens’ rights agreement (the CRA), establish a cohort of persons to whom the EU’s Social Security Co-ordination (SSC) Regulations (Regulations (EC) 883/2004 and 987/2009) will continue to apply after the end of the TP. This cohort primarily consists of EU citizens, as well nationals of the EEA-EFTA States (i.e., Iceland Liechtenstein and Norway) and Swiss nationals living or working in the UK, and UK nationals living or working in the EU, EEA-EFTA States or Switzerland, at the end of the TP for as long as they remain in scope of these agreements.

Part two of the WA (and its equivalents in the SA and the CRA) provides for the rights of EU citizens, and EEA-EFTA and Swiss nationals in the UK and UK nationals in the EU, the EEA-EFTA States and Switzerland at the end of the TPTP, including:

  • Protection of residence rights
  • Protection of rights relating to social security co-ordination (SSC)

Article 10 of the WA covers:

  • UK and EU citizens in the UK exercising their right to reside under EU law and resident at the end of the TP
  • Frontier workers at the end of the TP
  • Family members of the above (including unborn children)

Article 10 of the WA

“1. Without prejudice to Title III, this Part shall apply to the following persons:

(a) Union citizens who exercised their right to reside in the United Kingdom in accordance with Union law before the end of the transition period and continue to reside there thereafter;

(b) United Kingdom nationals who exercised their right to reside in a Member State in accordance with Union law before the end of the transition period and continue to reside there thereafter;

(c) Union citizens who exercised their right as frontier workers in the United Kingdom in accordance with Union law before the end of the transition period and continue to do so thereafter;

(d) United Kingdom nationals who exercised their right as frontier workers in one or more Member States in accordance with Union law before the end of the transition period and continue to do so thereafter;”

Article 30 of the WA covers:

  • Third country nationals, EU citizens subject to the UK social security legislation at the end of the TP and UK nationals subject to EU social security legislation at the end of the TP. It also covers non-UK nationals and non-EU citizens in a cross-border situation subject to UK or EU legislation at the end of the TP.

Article 30 of the WA

“1. This Title shall apply to the following persons:

(a) Union citizens who are subject to the legislation of the United Kingdom at the end of the transition period, as well as their family members and survivors;

(b) United Kingdom nationals who are subject to the legislation of a Member State at the end of the transition period, as well as their family members and survivors;

(c) Union citizens who reside in the United Kingdom and are subject to the legislation of a Member State at the end of the transition period, as well as their family members and survivors;

(d) United Kingdom nationals who reside in a Member State, and are subject to the legislation of the United Kingdom at the end of the transition period, as well as their family members and survivors

(e) persons who do not fall within points (a) to (d) but are:

(i) Union citizens who pursue an activity as an employed or self-employed person in the United Kingdom at the end of the transition period, and who, based on Title II of Regulation (EC) No 883/2004 of the European Parliament and of the Council1, are subject to the legislation of a Member State, as well as their family members and survivors; or

(ii) United Kingdom nationals who pursue an activity as an employed or self-employed person in one or more Member States at the end of the transition period, and who, based on Title II of Regulation (EC) No 883/2004, are subject to the legislation of the United Kingdom, as well as their family members and survivors;

(f) stateless persons and refugees, residing in a Member State or in the United Kingdom, who are in one of the situations described in points (a) to (e), as well as their family members and survivors

(g) nationals of third countries, as well as members of their families and survivors, who are in one of the situations described in points (a) to (e), provided that they fulfil the conditions of Council Regulation (EC) No 859/20031.

2. The persons referred to in paragraph 1 shall be covered for as long as they continue without interruption to be in one of the situations set out in that paragraph involving both a Member State and the United Kingdom at the same time.

3. This Title shall also apply to persons who do not, or who no longer, fall within points (a) to (e) of paragraph 1 of this Article but who fall within Article 10 of this Agreement, as well as their family members and survivors.

4. The persons referred to in paragraph 3 shall be covered for as long as they continue to have a right to reside in the host State under Article 13 of this Agreement, or a right to work in their State of work under Article 24 or 25 of this Agreement.

5. Where this Article refers to family members and survivors, those persons shall be covered by this Title only to the extent that they derive rights and obligations in that capacity under Regulation (EC) No 883/2004.”

Article 32 of the WA provides a more limited set of SSC rights

Provides for limited rights for those who are either not, or no longer, covered by Article 30 of the WA. Article 32 provides for the protection of UK nationals and EU citizens who have previously been subject to EU legislation or UK legislation but are no longer in that situation.

Article 32 of the WA

“1. The following rules shall apply in the following situations to the extent set out in this Article, insofar as they relate to persons not or no longer covered by Article 30:

(a) the following persons shall be covered by this Title for the purposes of reliance on and aggregation of periods of insurance, employment, self-employment, or residence, including rights and obligations deriving from such periods in accordance with Regulation (EC) No 883/2004:

(i) Union citizens, as well as stateless persons and refugees residing in a Member State and nationals of third countries who fulfil the conditions of Regulation (EC) No 859/2003, who have been subject to the legislation of the United Kingdom before the end of the transition period, as well as their family members and survivors;

(ii) United Kingdom nationals, as well as stateless persons and refugees residing in the United Kingdom and nationals of third countries who fulfil the conditions of Regulation (EC) No 859/2003, who have been subject to the legislation of a Member State before the end of the transition period, as well as their family members and survivors;

for the purposes of the aggregation of periods, periods completed both before and after the end of the transition period shall be taken into account in accordance with Regulation (EC) No 883/2004.

(b) the rules set out in Articles 20 and 27 of Regulation (EC) No 883/2004 shall continue to apply to persons who, before the end of the transition period, had requested authorisation to receive a course of planned health care treatment pursuant to Regulation (EC) No 883/2004, until the end of the treatment. The corresponding reimbursement procedures shall also apply even after the treatment ends. Such persons and the accompanying persons shall enjoy the right to enter and exit the State of treatment in accordance with Article 14, mutatis mutandis.

(c) the rules set out in Articles 19 and 27 of Regulation (EC) No 883/2004 shall continue to apply to persons who are covered by Regulation (EC) No 883/2004 and who are on a stay at the end of the transition period in a Member State or the United Kingdom, until the end of their stay. The corresponding reimbursement procedures shall also apply even after the stay or treatment ends.”

Article 33 of the WA

Extends the provisions of Title III of the WA to nationals of Iceland, Liechtenstein, Norway, and the Swiss Confederation moving within the UK and EU.

The SA and CRA

Parts two the UK agreements between EEA-EFTA States (i.e., Iceland, Liechtenstein, and Norway) (the SA) and Switzerland, (the CRA) provide the equivalent residence and social security coordination rights for UK nationals and nationals of these countries as those provided to UK nationals and EU citizens under the WA. These agreements also extend the social security coordination rights under these agreements to EU citizens in one of these States.

The only difference between these agreements and the WA is that the social security provisions in Title III is limited to UK, EU, EEA-EFTA, or Swiss nationals.

In scope of the WA, SA and CRA

UK, EEA-EFTA and Swiss nationals and EU citizens in scope of the WA, SA or CRA will continue to be able to access and export Child Benefit in respect of children living in an EU Member State, or EEA-EFTA State or Switzerland, subject to meeting all standard conditions of entitlement for Child Benefit. For Title III of the WA, it also covers non-UK nationals and non-EU citizens who are or were in a cross-border situation.

UK, EEA-EFTA, and Swiss nationals, who at the end of the implementation period:

  • are relying on a right to reside in the UK, an EEA-EFTA State or Switzerland under EU law; or
  • are subject to UK social security legislation

are in scope of the WA, SA or CRA and can rely on the EC social security Regulations to:

  • have access to Child Benefit, subject to meeting all standard conditions of entitlement for Child Benefit; and/or.
  • Receive Child Benefit for children they are responsible for residing in an EU Member State, or EEA-EFTA State or Switzerland.

EU Settlement Scheme (EUSS)

EU citizens, EEA-EFTA State or Swiss nationals who were in the UK before the end of December 2021and currently in receTPt of Child Benefit are required to have applied to the EUSS to be granted an immigration status. This will be either:

  • Settled Status for those who have been in the UK for five years or more; or
  • Pre-Settled Status for those who have been in the UK for less than five years

EEA or Swiss nationals with settled status or pre-settled status and a qualifying right to reside are considered to be within scope of the WA and can continue to receive and/or export Child Benefit, subject to meeting all standard conditions of entitlement. EU citizens, EEA-EFTA or Swiss nationals who are ineligible under the EUSS will apply for immigration status under the Home Office immigration system, and have no access to Child Benefit until they have been resident in the UK for five years.

A customer who has pre settled status loses that status if they are absent from the UK for 6 consecutive months or more.

A customer with settled status loses that status if they are absent from the UK for 5 consecutive years or more.

Persons who require leave to enter or remain in the United Kingdom under the immigration system, but do not have it are excluded from entitlement to Child Benefit. for more information, see CBTM10120

Home Office Immigration System

The new Home Office Immigration System went live on 1 January 2021. All non-UK or non-Irish nationals are required to register with either EU Settlement Scheme or the immigration system for an immigration status. More detailed information on the EU settlement scheme and the Home Office immigration System can be found on GOV.UK https://www.gov.uk/settled-status-eu-citizens-families

“Apply to the EU Settlement Scheme (settled and pre-settled status)” and “New immigration system: what you need to know”. : https://www.gov.uk/guidance/new-immigration-system-what-you-need-to-know

Grace Period – The Citizens’ Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020

EU citizens, EEA-EFTA or Swiss nationals must apply to either the EU Settlement Scheme or, for those arriving on or after 1 January 2021, the Immigration system for an immigration status.

The “Grace Period”, after the end of the TP 31 December 2020 until 30 June 2021 in which EU citizens, EEA-EFTA or Swiss nationals must register to legalise their stay in the UK was introduced to allow these individuals time to register.