Reply To: Chen – pre settled status

Peter Barker

You are right, while UC was added in various places in the HB Regs to have the same effect as other DWP means tested benefits, the habitual residence test was never amended in that way. That means there is no legal reason why you are compelled to accept that someone on UC has satisfied the test.

A positive UC decision is a piece of evidence in their favour, but let’s be honest not a particularly compelling one when you have other evidence telling you a different story.

On the face of it, pre-settled status on its own does not satisfy the HRT, although the recent litigation culminating in the Supreme Court refusing permission to appeal in the AT case has somewhat muddied the waters. Where the claimant personally is an EEA national, they should not be denied social assistance (which includes HB and CTR) if the refusal would prevent them from living in “dignified” conditions. Whether this decision also covers third country nationals who got PSS through a derivative right of residence is not 100% clear and it will probably take yet another appeal to sort that out.

If she is going to rely on a conventional EEA right to reside, Chen has the obvious difficulty that the child in such a case is supposed to be self-sufficient. They don’t sound as if they are. Even if she once had a Chen right to reside, it’s doubtful she still has.

That means you need to find out something about the EEA national parent(s) of the Chen child(ren) and hopefully one of them was a worker during the child’s life and the child is now in education. That only works if the child also has either settled or pre-settled status though.

  • This reply was modified 3 months, 3 weeks ago by Peter Barker.