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Eligibility of European Economic Area nationals

A European Economic Area (EEA) citizen who entered the UK after 31 December 2020 can stay for up to six months as a visitor.

This information is for professionals working in housing and homelessness.

Impact of Brexit on eligibility test

A European Economic Area (EEA) citizen who entered the UK after 31 December 2020 can stay for up to six months as a visitor. They cannot access public funds during this period. This means they cannot:

  • Claim social security benefits 
  • Apply for social housing 
  • Get help from the Housing Executive if they are homeless

To decide if a person is eligible for help with housing and homelessness, the Housing Executive will:

  • Find out their immigration status
  • Ask when they arrived in the UK if they are an EEA citizen
  • Ask if they have applied to the EU Settlement Scheme if they are an EEA citizen who has been living in the UK since before 1 January 2021 

EEA nationals and their family members

The rules for EEA nationals and their family members depend on whether they:

  • Were living in the UK before 31 December 2020, and
  • Have status under the EU Settlement Scheme

EEA nationals who enter the UK after 31 December 2020

An EEA national who enters the UK after 1 January 2021 cannot establish a right to reside from their EU free movement rights.  They will be subject to immigration control.

A person subject to immigration control is eligible for help with housing if they are habitually resident and they have:

  • Indefinite leave to remain
  • A right of abode 
  • Applied for asylum and have been given refugee status, humanitarian protection or discretionary leave with no restrictions on their right to access public funds

The EU Settlement Scheme

The EU Settlement Scheme (EUSS) protects the rights of people from the EEA and their family members who lived in the UK before the end of the Brexit transition period on 31 December 2020.  

If a person was resident in the UK on 31 December 2020, the EUSS can grant them:

  • Settled status if they’ve lived in the UK for five years 
  • Pre-settled status if they’ve lived in the UK for up to five years
  • The deadline for applying to the EUSS was 30 June 2021. An EEA national or family member who did not apply by that date should get immigration advice. 

Settled status under EUSS

A person will receive settled status if they:

  • Are an EEA national or the family member of an EEA national, and
  • Were resident in the UK on 31 December 2020, and
  • Have been resident in the UK for five consecutive years

Settled status is a type of indefinite leave to remain. A person with settled status is eligible for benefits if they are also habitually resident. 

A person can prove their settled status using Gov.uk.

Pre-settled status under EUSS

A person will receive pre-settled status if they:

  • Are an EEA national or the family member of an EEA national, and
  • Were resident in the UK on 31 December 2020, and
  • Have been resident in the UK for less than 5 years

Pre-settled status is a type of limited leave to remain. A person with pre-settled status has a right to reside but is only eligible for offers of housing and homelessness assistance if they have another EEA-based right to reside.[1]

This means they, or their family member, must be a qualified person. This includes a:

  • Worker
  • Person who is temporarily unable to work due to illness
  • Self–employed person
  • Person with a permanent right to reside in the UK 

A person with pre-settled status is not eligible for housing or homelessness assistance if their only other right to reside is:

  • Their initial three-month right to reside
  • As a jobseeker or family member of a jobseeker
  • As a Zambrano carer (this is a non-EEA national who is a parent or carer of a child who is a British citizen and who is reliant on the carer)

Impact of imprisonment on residence

Time spent in prison ends a period of residency.[2]

A person who was resident in the UK for five years before being imprisoned may still be eligible for settled status. For a person without settled status or permanent residency before their imprisonment, their residency in the UK begins on the day of their release from prison.

The EUSS has strict suitability requirements and may refuse an application if the offence makes the person unsuitable as a resident. 

For more information, review the EUSS: Suitability requirements from Gov.uk.

EUSS decision pending

A person may be eligible for offers of housing and help with homelessness if all of the following apply:[3]

  • Are an EEA national or the family member of an EEA national and
  • Were resident in the UK in accordance with EU law on 31 December 2020 and
  • Applied to the EUSS by 30 June 2021 but have not yet received a decision on their application and
  • Have a right to reside as a qualified person

Qualified persons

A person is a qualified person if they have a right to reside in the UK under retained EEA law. This includes a person who is:

  • A worker, or who can be treated as a worker although not currently working
  • Self-employed, or who can be treated as self-employed although not currently active
  • A permanent resident, although this person should have settled status
  • The primary carer of a child in education in limited circumstances
  • The family member of any of the above

It can be difficult to establish if someone is a qualified person. Speak to a specialist immigration adviser if you are unsure. Our information should be read alongside relevant government guidance.

Who is considered a worker 

A person is a worker if they are engaged in genuine and effective work. They can retain their worker status although they aren’t currently working:

  • While temporarily unable to work due to accident or illness
  • Up to six months if they are unemployed and have worked in the UK for less than 12 months
  • Up to nine months if they are unemployed and have worked in the UK for more than 12 months
  • Up to 12 months if they stopped work due to pregnancy and intend to resume work

A person can only retain their status if they are unemployed if they are looking for work. This does not apply to people who are unable to work due to illness, accident or pregnancy. 

Who is considered self-employed 

A person is self-employed if they run their own business. The person’s business must be genuine and effective, but it does not have to:

  • Generate enough income to cover their needs
  • Currently make a profit

A person can retain their status as a self-employed person:

  • Until they resume work or cannot work due to illness or accident
  • Up to six months if they stopped working, registered as a jobseeker and have been economically active in the UK for less than 12 months
  • Up to nine months if they have stopped working, registered as a jobseeker and have been economically active in the UK for more than 12 months
  • Up to 12 months if they are not working due to pregnancy and intend to resume the business

Family members of workers and self-employed persons

A family member of an EEA national is treated in the same way as an EEA national. This means they are eligible for offers of housing and homelessness help if they have:

  • Settled status under the EUSS
  • Pre-settled status and their EEA family member is a qualified person

A person’s family members are their:[4]

  • Spouse or civil partner
  • Child, grandchild or great-grandchild under the age of 21
  • Child, grandchild or great-grandchild over the age of 21 and is dependent on the person
  • Parent, grandparent or great-grandparent who is dependent on the person

Derivative right to reside

A derivative right to reside protects a child’s right to remain in the UK under EU law. A child and their parent may have a derivative right to reside if the child is:

  • Self-sufficient
  • In education and at some point, lived with a parent who was an EEA worker
  • The child of a UK national and their primary carer is a non-EEA national who has no other right to reside in the UK

Self-sufficient child

This derivative right to reside is called a Chen right.

A person has a Chen right to reside if they are the primary carer of an EEA child in education who is self-sufficient. 

A person with this right to reside is not eligible for help with housing and homelessness. They can apply for benefits, but they may have too much income or capital to qualify for help. 

In the past a person had to have private health insurance to establish a right to reside as a Chen carer. A recent court case has challenged this.[5]

Child in education

This derivative right to reside is called an Ibrahim or Texeira right and is sufficient right to reside to make someone eligible for offers of housing and homelessness help. A person may be eligible if:

  • They are the main carer for a child who is in full-time education
  • The child’s parent or step-parent was an EEA worker at some point after the child was born
  • The child lived with the parent at the time they were an EEA worker

This right to reside will last until the child is no longer dependent on the parent or carer or until they leave full-time education.

This right to reside does not extend to the children of people who were self-employed. 

Child of a British citizen

This derivative right to reside is called a Zambrano right. A person has a Zambrano right to reside if they:

  • Are the primary carer for a child whose parent is a British citizen, and
  • Have no other right to reside in the UK

A person is not eligible for help with housing or homelessness if their only right to reside is a Zambrano right.

Footnotes

  • [1] 3(1A) Allocation of Housing and Homelessness (Eligibility) Regulations (NI) 2006
  • [2] Onukwere v Secretary of State for Home Department c-378/12, https://curia.europa.eu/juris/liste.jsf?num=C-378/12, accessed June 2022
  • [3] The Citizens’ Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020
  • [4] 7 Immigration (EEA) Regulations 2016
  • [5] C-247/20 VI v Commissioners for Her Majesty’s Revenue & Customs, https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:62020CJ0247&from=EN, accessed June 2022
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