Advising other European nationals

This page is for housing advisers. If you are a new arrival please click here for information more relevant to you.

Who does this page apply to?

The law about the rights of EEA nationals to live, work and claim access to housing, benefits and other services changed on 1 January 2021 when the Brexit transition period ended. The rights described on this page now only apply to a person who:

is a citizen of an EEA member state other than Ireland
is not the family member of a British citizen
entered the UK before 23:00 on 31 December 2020
is not an EEA worker or self-employed person
made an application to the EU Settlement Scheme (EUSS) on or before 30 June 2021 or his/her late application was accepted, and
either:

s/he has been granted EU pre-settled status or
his/her EUSS application has not been finally determined.

If all of these apply, this page describes his/her rights to housing and benefits. In any other case that person's entitlement to housing and benefits are described on other pages as follows:

if s/he is an Irish citizen, or the family member of a British citizen see: British and Irish citizens
if s/he a worker or self-employed person see: EEA workers
if s/he has been granted EU settled status see: people with indefinite leave
if s/he entered the UK for the first time after 31 December 2020 see people with limited leave or people with indefinite leave, according to the type of leave s/he was granted; or
if s/he failed to apply to the EU Settlement Scheme on time (and their late application is rejected), s/he may have lost their right to live and work in the UK and may be an overstayer: see people who are destitute.

What are the housing and benefit rights of other European nationals?

These rights are described in the page on other European nationals.

EEA nationals who are not in work and whose application to the EU Settlement Scheme has not been decided are often asked to provide proof of their entitlement to benefits and housing and this can prove difficult or impossible. Before 31 December 2020, EEA nationals could apply for a residence permit to prove that they had the right to reside (although in most cases this was not a requirement). Except for applications made before 31 December 2020, new permits are no longer issued. However, in almost all cases, the status of an EEA national is a matter of fact, not documentation. Permits were only compulsory for extended family members (not the spouse, children, parents, or grandparents) such as cohabitees and relatives needing care.

Problems with the permanent right to reside

Because there is no requirement to have a residence permit to prove the permanent right to reside, it is simply a matter of fact that the person has been in the UK for the relevant time. The permanent right to reside is acquired through five years continuous residence exercising an EEA right to reside (e.g. as a worker, a student, etc), or after a shorter period (as a retired worker or self-employed person) – but different qualifying rules apply to EEA family members. After five years lawful residence (whether exercising a free movement right or not) an EEA national qualifies for EU settled status (and his/her free movement rights are extinguished).

Periods of residence before 30 April 2006 (when the right of permanent residence was established) can count, provided the person’s residence complied with the law at that time: SSWP v Lassal [2009] EWCA Civ 157 (for periods from 2 October 2000 to 29 April 2006 see the Immigration (European Economic Area) Regulations 2000). Time spent in the UK before a person’s home state joined (acceded to) the EU also counts if throughout that period s/he had leave to remain and was residing here or carrying out an activity (e.g. working, studying, self-sufficient, etc.) that would have given him/her the right to reside had they been an EU citizen at that time.

Likewise, periods of unemployment during which a person was a retained worker or a jobseeker also count towards the qualification period (assuming s/he was registered and met the work-related conditions). Any period of registered unemployment before 1 January 2014 no matter how long counts towards the five years qualification period (SI 2013 No. 3032, schedule 3 para 1) and the same applies to any period after then, provided that person had worked in the UK for at least one year. A period of registered unemployment can be proven by that person’s national insurance record.

However, because the five years residence needs to be continuous, even a short break that does not comply with the EEA regulations (e.g. a jobseeker who did not register at the Jobcentre) can cause the clock to be reset to zero and a five-year period to be served afresh. The DWP guidance (pdf) is helpful: it states that gaps of up to 30 days in any 12-month period do not cause a break (paras C1812-14) if they are caused by a change in the type of residency (e.g. from worker to jobseeker, to student, etc.). But this is guidance only and case law suggests that gaps of up to three months between leaving your employment and registering as a jobseeker can be ignored: MK v SSWP [2013] UKUT 163 (AAC).

Absences from the UK for up to six months in one year or longer for certain important reasons (e.g. military service, child birth, overseas posting) do not affect the continuity of residence (Regulation 3(2)(c) of the EEA Regulations).

Problems with students

The requirement for students is that the person

be enrolled at a course of study
has comprehensive sickness insurance
has signed a declaration that s/he is able to meet their living costs while studying and that declaration is true at the time of signing.

Problems occur when the student is no longer able to support him/herself. As long as the declaration was true at the time of signing and the student continues to study s/he continues to be regarded as a student, with the right to reside as such. In order to be eligible for housing and benefits s/he must also be habitually resident and this can be a problem for students on short courses or who only stay temporarily in the UK to study. Other problems occur with access to UC/HB (as for all students) and with whether a student (who may have a home elsewhere in Europe) is actually homeless.

Problems with self-sufficient people

EU nationals who are self-supporting have the right to reside in the UK. However, they are unlikely to be eligible for homelessness assistance as any request for support of this kind would suggest that they are not in fact self-supporting.

An application for an allocation of housing is no indication whatsoever of an inability to support oneself and should not cause any problems. An application as homeless, however, might indicate a loss of self-sufficiency in some circumstances (inability to pay rent or find a deposit if accommodation is lost) but not in others (fire, domestic violence, illegal eviction). In these latter circumstances, homelessness assistance should not be refused.

A person is self-sufficient if s/he has comprehensive sickness insurance and sufficient resources not to become a ‘burden on the social assistance system’ (EEA Regulations, 4(1)(c)). There is no requirement that a person’s basic needs are met solely from his/her own resources, they could be met by family or friends, or from a work pension, or some combination of these. Even if that person has very few resources, if s/he is managing without being a burden on UK social assistance s/he is likely to be considered ‘self-sufficient’. And it must be accepted that a person has sufficient resources if his/her income is above the maximum level that would qualify him/her for social assistance.

If a self-sufficient person becomes a burden on the social assistance system of the state (which means claiming UC, HB, income-based JSA, income-related ESA, income support, state pension credit or (possibly) council tax rebate), s/he may lose the right to reside. UK benefit rules, however, prevent an award from being made to anyone who does not have a right to reside, and so a person is generally excluded from entitlement in these cases, and therefore from becoming an 'unreasonable burden on the social assistance system'. Generally, therefore, an EEA national who is not covered by the rules on other rights to reside can be regarded as a self-sufficient person, who thus has a right to reside.

However, a person cannot be automatically disqualified from being self-sufficient or from one of those benefits as being a ‘burden’ by the mere fact of making a clam for them. What constitutes ‘a burden’ is not defined and so must be judged on the facts of the case. DWP guidance for HB (at paras C4.122-123) suggests that there may be circumstance when you could claim and continue to be self-sufficient (such as a temporary disruption of funds). Case law suggests that a person should have enough resources to cover his/her UC standard allowance plus his/her eligible rent if s/he is likely to be claiming for anything other than a short period (see SG v Tameside at paras 55-56).

What is comprehensive sickness insurance?

A person meets the requirement for comprehensive sickness insurance if:

s/he has registered with a GP/health centre for NHS treatment. This is contrary to DWP guidance (ADM chapter C1 (pdf) para C1730) but was confirmed in September 2021 in VI v Commissioners for HMRC [2021] EUECJ C-247/20 (overturning Ahmad v Home Secretary [2014] EWCA Civ 988). This case is binding on the UK despite Brexit; or
s/he has a European Health Insurance Card issued in his/her home country together with a letter (called a statement of intent) confirming that s/he does not intend to stay in the UK permanently; or
s/he has private comprehensive sickness insurance; or
s/he is ‘entitled to reimbursement of [his/her] NHS healthcare costs from another Member State' (ADM chapter C1 para C1730). This is usually the case if s/he receives a pension or invalidity benefit from them see: SG v Tameside MBC [2010] UKUT 243 (AAC). If a person is unsure about his/her pension rights in the UK or their home state the DWP is responsible for both: for more information see Europa (Your Europe) or contact the AIRE centre.

Effects of the EU Settlement Scheme

All EEA nationals living in the UK and all people with EU rights to reside (including family members of EEA nationals and ‘Zambrano carers’ can apply to the EU Settlement Scheme and can do so until 30 June 2021 (or 31 December 2020 if the UK leaves the EU with no deal).

Successful applicants who can prove they have lived continuously in the UK for five years get ‘EU settled status’. Those who can prove residence for shorter periods get ‘EU Pre-Settled Status’ and can later apply to convert this into EU Settled Status. Both kinds are granted under the Immigration Rules, so that people with them may have both an EU right to reside and a UK immigration status.

EU Settled Status is indefinite leave with no conditions so a person who has it is in eligible Class C for housing and homelessness services (regardless of whether s/he is exercising one of his/her free movement rights). Being leave, it also counts as a right to reside so s/he cannot be disqualified as a ‘person from abroad’ for either housing or benefits.

EU Pre-Settled Status is limited leave and does not fit into any eligible classes for housing and homelessness services. But a person who is exercising any of his/her free movement rights, including being a jobseeker or Zambrano carer is not ‘subject to immigration control’. So in those cases it is disregarded as a right to reside (i.e. where his/her only other right to reside is a non-qualifying right) to exclude access to housing and benefits. So generally, people with EU Pre-Settled Status must rely on a qualifying EU right to reside (e.g. worker, self employed etc) to be eligible.

Overall, this maintains the intended policy that an EEA national who is working/self-employed or who has five years lawful residence is entitled to housing and/or benefits. There are three limited exceptions to this for transitional cases before the law was changed.