Following the UKs Exit from the European Union

Following the UKs exit from the European Union, you would have needed to have made an application for settled or pre-settled status before the deadline of 30th June 2021 if you did not do this, you should obtain immigration advice.  

Broadly speaking the following applies:

• Settled status – this means that you have been present in the UK for at least 5 years and have exercised a qualifying right to reside (below). This in effect means that you have permanent residency and there are no restrictions on your entitlement to benefits.  
• Pre-Settled Status – this means that whilst you have not been in the UK for 5 years, you are still present and are working towards your settled status and there are no restrictions on you living in the UK. However, for benefit purposes you are not entitled to benefits unless you can prove that you have a qualifying right reside alongside your pre-settled status.
• In some circumstances, you can pass the Habitual Residency Test based on having pre-settled status or as a family member of an EEA national based on ‘destitution’. Please speak to us for further details if you have been refused benefit on the above grounds and you think that you might qualify on this ground.  

 

What is the Right to Reside?   

The Right to reside is a test which the DWP applies to EEA nationals to assess that they have a clear link to the member state, the state where the applicant has applied for benefits in this instance, the UK. This test has been established by EU Law and ensures that EEA nationals have the same rights throughout the EU. 

In order to pass the test you will need to ensure that firstly, you are habitually resident in the UK. This means that you intention to make the UK your home and could be proven by renting a property, having a bank account etc. 

In order to pass the Right to Reside often called the Habitual Residency Test, test you will generally need to fall into one of the following categories: 

• You are a worker  
• You are self-employed (genuine and effective, e.g. registered with HMRC etc) 
• You have retained worker status (e.g. redundancy and/or sickness)
• Retained Self-employment (sickness and unable to work)
• Self-Sufficient
• Jobseeker (not for Universal Credit)
• Derivative Right to reside (If you are the parent of an EEA child in education and have done some work whilst the child has been in education, you also may have a right to reside)
• If you are the family member of an EEA national in one of the above categories and can prove the link, you also may have an established right to reside for benefit purposes.  

If you have 5 continuous years living in the UK in one or a mixture of the above groups, you will have achieved permanent residency meaning that you will not be subject to the benefit tests mentioned. If you wish you could apply for Settled Status or British Citizenship once you have acquired permanent residency.

If relying on one of the routes mentioned above to claim benefits, you will need to provide evidence at your specific right to reside appointment at the Jobcentre. Examples of evidence you may need are payslips, fit notes, child birth certificates and self-employed accounts where necessary.  

 

Do mistakes happen when assessing benefit claims? 

This is a very complex area of law and sometimes the DWP do make mistakes when reaching these decisions. If this has happened, you should speak to us to assess your circumstances and if a decision can be challenged. 

This advice is provided by our Benefits Advisor, Robert Mandelstam. The information provided above is up to date for the financial year ending 5th April 2026.

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