One less barrier towards equal treatment for EU citizens in the UK

We are pleased the Government has introduced amendment NC31 to the Border Security, Asylum and Immigration Bill, bringing us a step closer to ensuring that anyone with status under the EU Settlement Scheme (EUSS)* can rely on the rights and protections in the Withdrawal Agreement for so long as they hold that EUSS status. This is a major milestone for equal treatment and a testament to the relentless advocacy of the3million and our supporters. 

This amendment should ensure that all EU citizens and family members with pre-settled status who are at risk of destitution are able to rely on the EU Charter of Fundamental Rights to access welfare**. One of the fundamental issues with the EUSS had been that the Government did not accept that all status holders were entitled to EU Charter protections.  

Currently, guidance from the Department of Work and Pensions (DWP) states that only those who were exercising a Free Movement right on 31st December 2020 are eligible to rely on the EU Charter in this way. We trust this guidance will change when this proposed amendment to the bill becomes law.

This legislative change would protect some of the most marginalised and vulnerable people in our communities and it is a crucial step on our journey to achieving welfare justice for all. 

* Except unfortunately people under the Surinder Singh and Zambrano routes who will not benefit from this change.

** The EU Charter of Fundamental Rights does not apply to EFTA or Swiss citizens.

The road ahead 

Our understanding is that DWP will continue to apply the right to reside test to check the eligibility of people with pre-settled status for welfare. We disagree with the government’s view that status under the EU Settlement Scheme is a “gateway status” which doesn’t automatically confer rights to equal treatment. 

We continue to make our legal arguments through intervening in a series of legal challenges, leveraging the power of the law to get this government to support communities to be resilient, ensuring everyone gets access to the support they need.

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Why this matters

For years, we have been making representations to the UK Government to recognise that all EU citizens covered by the EU Settlement Scheme have rights under the Withdrawal Agreement. Progress is finally being made, but challenges remain. The so-called “true cohort” vs “extra cohort” distinction creates unnecessary complexity, and we continue to argue all those with status under the EUSS should enjoy the same rights. 

We are committed to ensuring equal treatment for EU citizens in the UK. Your support makes a difference. 

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What does ‘true cohort’ and ‘extra cohort’ mean?

Since 2017, at the very start of the negotiations between the UK and the EU on the Withdrawal Agreement, the3million has argued that all EU citizens living in the UK before Brexit had to be protected by this international Treaty, along with their family members.

Before Brexit, EU citizens living in the UK were technically only protected under the main EU free movement laws if they were workers, self-employed people, job seekers, self-sufficient people with Comprehensive Sickness Insurance, students with Comprehensive Sickness Insurance, someone who had  a permanent, retained, or derived right of residence, or someone who had only been in the UK for less than three months - along with their family members. 

It was open to the UK to continue the same EU free movement law position after Brexit.

However, Theresa May, then Prime Minister, said in the House of Commons in June 2017:

“the system of registration that citizens go through will be as streamlined and light-touch as possible, and we intend to remove some of the technical requirements currently needed to obtain permanent residence under EU rules. For example, we will not require anyone to demonstrate that they have held comprehensive sickness insurance.”

In other words, just providing proof of living in the UK would be enough to evidence ‘residence’ for the ‘EU Settlement Scheme’.

While the3million of course welcomed the fact that the eligibility criteria for the EUSS would be light touch, we have consistently raised concerns about what this ‘generosity’ means for people’s legal rights under the Withdrawal Agreement. 

Indeed, in due course the UK Government started referring to the ‘true cohort’ of the EUSS (those who were in fact exercising those EU Free Movement treaty rights set out above) and the ‘extra cohort’ of the EUSS (those who weren’t, and were simply living in the UK), as shown in this meeting of the EU-UK Specialised Committee on Citizens’ Rights, where the EU

“highlighted their concerns as regards the compatibility with the Withdrawal Agreement of the UK’s EU Settlement Scheme in not making a clear distinction between the beneficiaries of the Withdrawal Agreement (the so-called ‘true cohort’) and non-beneficiaries who are granted status under UK immigration law (the so-called ‘extra cohort’), despite not exercising a qualifying Treaty right.”

the3million is of the view that there is no such thing as a true and extra cohort, and that everyone with status (or pending status) under the EUSS falls within scope of the Withdrawal Agreement, and has access to all the rights under the Withdrawal Agreement, including the right to equal treatment. We have been making submissions in line with that view, as intervenors in a number of legal challenges.

We don’t think it is right that two people with the exact same visa status can have such different entitlements, and be treated so differently, especially when most of the time those two people are unlikely to know whether the UK government considers them to be ‘true cohort’ or ‘extra cohort’.

However, the Independent Monitoring Authority, the Home Office, the Department for Work and Pensions and local authorities have not shared that view, leading to very complex legal arguments in court about who is covered by the Withdrawal Agreement, and requiring examination of what situation someone was in on 31 December 2020.

The legislative solution - amendment NC31 to the Border Security, Asylum and Immigration Bill

We have been making representations to the UK Government on this issue for a very long time. 

As recently as November 2024, the Home Office wrote to us and said  

“the UK cannot unilaterally extend the scope of the WA [Withdrawal Agreement] and therefore the decision to grant EUSS status to certain people outside that scope does not and cannot have the effect of making them WA beneficiaries.”

However, as early as May 2021, the3million proposed to the House of Lords European Affairs Committee:

“There may well be some disagreement among legal experts as to whether it is legally possible to expand the personal scope of the Withdrawal Agreement. [...] However, we posit that this disagreement could be moot if legislation were altered and simplified such that everyone with pre-settled status has identical rights, without further tests down the line to determine true/extra cohort membership, and similarly everyone with settled status has identical rights.”

We are therefore very pleased to see that the Government has now tabled this amendment, which is a step in the right direction. 

However, we do have a number of further questions about the scope and consequences of the legislation. We are in touch with the UK Government on these, and we will also be engaging with the Independent Monitoring Authority. We hope to be able to provide an update when we have more information.