Reply To: EUSS decision pending

Peter Barker

A pending application generally works in the same way as pre-settled status: it preserves the person’s ability to exercise EEA residence rights, but on its own it cannot be relied on to satisfy the right to reside test. It’s as if Brexit never happened – the person is still able to rely on EEA residence rights, but to claim benefits they will need to actually have one of those EEA residence rights such as worker etc.

There is one small difference between pre-settled status and a pending application. Strictly speaking a pending application only preserves EEA residence rights for those who had such rights on 31/12/2020. If there was no right to reside on 31/12/20, the pending application is no use. It’s only after the person is granted pre-settled status that their ability to rely on EEA residence rights going forward crystallizes. With pre-settled status, you can have a right to reside as a worker etc now, even if you did not on 31/12/20.

Your claimant #1 was resident but without a right to reside on 31/12/20. If you apply the rules to the letter, her pending application does not yet preserve any EEA rights for her: she cannot have the statius of worker etc until she actually has pre-settled status – See SI 2020/1209.