Advising European family members with preserved rights

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

This page looks at some of the issues with housing faced by EEA family members. EEA family members might also be EEA nationals, or they might be nationals of a non-EEA country. Generally, family members have the same rights as the EEA national they accompany so you may want to check the pages on advising EEA workers and self-employed people and advising other EEA nationals. The new arrivals pages describe who is a family member or a former family member or for the regulations see the law on EEA family members page.

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. The rights described on this page now only apply to a person:

• who is the family member of an EEA national (unless s/he is the family member of person who was born in Northern Ireland)
• the EEA national s/he accompanies entered the UK before 23:00 on 31 December 2020
• s/he arrived in the UK to join them before 1 July 2021
• s/he 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 the person's entitlements to housing and benefits are described on other pages:

• 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 (or 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 EEA family members?

A family member has the same rights as the person they accompany (and there is no requirement that the family member must be an EEA national themselves). So, for example, a worker's civil partner has the same rights as the worker; a student's daughter has the same rights as a student and so on, except that in each case their status is EEA family member rather than worker, student, etc.

This applies even if the family is not living together unless the right only applies to a 'dependant' family member. A person can be ‘dependent’ because they are part of the same household and share its expenses, but it can also arise because that person is financially dependent on their family member or depend on them for care and support even if that person lives elsewhere.

The rights of family members may end when the 'principal' (the person with the rights) loses their rights, for example, by dying, leaving the UK or dropping out of the labour market. But there are some circumstances the family member retains rights or acquires new rights:

• in some cases the family member may acquire the permanent right to reside at same time the principal acquires it through retirement or long-term residence or if the principal dies (see also the law on EEA family members)
• there are specific rights for children (see below) and these may 'cover' the parent caring for them
• once a family member acquires the permanent right to reside they retain it even if the family later breaks up.

Family members who are not themselves EEA citizens must provide proof of identity, the family relationship and UK residence to confirm their status as a family member. The easiest way to confirm all of these is if they have a residence card issued by the Home Office. However, family member status is not dependent on a residence card being issued, nor is the family member obliged to apply for one. If the family member does not have a residence card the authority must determine their status by other means. To refuse an application solely on the grounds that the applicant does not have a residence card is unlawful.

Children born or adopted after 31 December 2020

An EEA national’s child who was born or adopted on or before 30 June 2021 is an EEA family member, provided that the EEA national the child is accompanying had the right to reside on 31 December 2020 (and child has also applied to the EU Settlement Scheme). Home Office guidance (pdf) confirms that this rule applies to adopted children.

What happens when the principal leaves the UK or dies?

Where the principal leaves the UK generally his/her family members will lose the right to reside unless they can establish that they have a right to reside independently as a worker, self-sufficient person, self-employed, student, person with permanent right to reside, etc. The exception to this is where the children may have rights (see below).

Where the principal dies, what happens to family members depends on the circumstances of the death.

• there may be rights to reside for children in education and for a parent caring for them, if the principal was economically active (see below)
• in certain circumstances, if the principal was an EEA worker or self-employed person, then the family member gets the permanent right to reside.

What happens when a relationship breaks down?

If family members stop living together this may not affect their rights if they continue to have a legal relationship, i.e. stay married or partnered. In most cases, a cohabitee loses their right to reside if they no longer live with their EEA partner.

If the family member simply does not know what has happened to the principal (because, for example, the relationship broke down some time ago) then local councils dealing with applications may make relevant enquiries, including asking the DWP or HMRC for information, or contacting previous employers or landlords, but should not assume that the principal has died or left the UK simply because of a lack of information. Homelessness case law, reiterated by the Welsh Code of Guidance (para 10.22), establishes that the 'benefit of the doubt' lies with the applicant in such cases.

On divorce or dissolution, the divorced partner may retain their right to reside if he or she is not an EEA national themselves, was married to an EEA national who was exercising EU law rights, and either:

• the marriage lasted for at least three years and the parties had lived in the UK for at least one year during its duration; or
• there is at least one child for whom a residence or contact order has been made, and this has to take place within the UK; or
• there has been domestic violence whilst the relationship subsisted such that the spouse should have the continued right to reside in the UK.

There have been a number of first-tier tribunal (immigration chamber) decisions in recent years concerning former partners who have lost their family member status when their relationship has ended due to violence. In all of these the appellants have successfully argued that they are entitled to the same treatment as other non-EEA nationals and should be considered for leave in line with the immigration rules on domestic violence. Contact the AIRE centre if you have similar cases.

Do children and their parent/main carer have any rights?

A child or their adult primary carer who does not possess an EEA right to reside of their own (for example, as an EEA worker or EEA self-sufficient person) may nevertheless acquire a right to reside through their child/parent. The child or one of their parents (but not necessarily the person who is currently their carer) must be an EEA national – different rules apply if the child is British. These are known as derivative rights because they are derived from the other person's EEA rights (so the parent’s right to reside arises because of the child’s right to reside or vice versa). These derivative rights were first established by case law but are now found in the Immigration (European Economic Area) Regulations 2016, Regulation 16.

A child has the right to reside if:

• s/he is or was the child of an EEA worker and has lived with one or both of his or her parents in the UK at a time when the parent was an EEA worker, and the child is in school or in further education (Regulation 16(3)); or
• s/he is an EEA national aged under 18 who is self-sufficient (this is not a derivative right but an ordinary right to reside as a self-sufficient EEA national).

The child’s adult primary carer (usually his/her parent, but may also be a legal guardian or another direct relative such as a grandparent) has a derivative right to reside if:

• the EEA worker’s child would be unable to continue their education here if their primary carer left the UK for an indefinite period (known as the Ibrahim or Teixeira right after the cases that established it – Regulation 16(4)); or
• the self-sufficient child would be unable to remain in the UK if the primary carer left the UK for an indefinite period (known as a Chen right – Regulation 16(2)).

Regulation 16 seems to imply that a person is excluded from these rights if they possess any other EEA right to reside (Regulation 16(1),(7)). But a person cannot be excluded from this right if they are an EEA jobseeker: Sandwell MBC v KK [2022] UKUT 123 (AAC) (pdf).

Rights to housing and benefits for parents/carers

A parent/primary carer who has EU pre-settled status with Ibrahim/Teixeira or Chen rights is eligible for local authority housing and/or homelessness assistance. The child of a Chen parent must be ‘self-sufficient’ but this may be based on the parent’s resources and the parent is allowed to work. However, if the Chen parent has no income of their own other than universal credit (or out-of-work legacy benefits) this may call into question whether the child is self-sufficient and so question the parent’s right to reside.

An Ibrahim/Teixeira parent (with pre-settled status) is entitled to universal credit or pension credit/housing benefit provided they are habitually resident.

Different rules apply if the child is a British citizen: see Zambrano carers about their rights to reside.