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Advising other European nationals

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

This section looks at housing problems faced by other EEA nationals. These may be people who are in the UK as students or self-sufficient people or with a permanent right to reside or people who seem to have no rights to reside at all.

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

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

EEA nationals are often asked to provide proof of their entitlement to benefits and housing and this can prove difficult or impossible. In most cases, there is no requirement for EEA nationals to get residence permits proving that they have a right to reside, although these can be requested from the Home Office. Such applications can take a long time and the Home Office charges a fee of £65. It is important to note that, in almost all cases, the status of an EEA national is a matter of fact, not documentation. Only extended family members (not the spouse, children, parents or grandparents) such as cohabitees and relatives needing care are required to get a permit. Non-EEA family members of EEA nationals are advised to get the relevant permits or cards to make it easier for them to prove their rights to reside.

Accession state nationals often applied for a residence permit once their 12 months on the Worker Authorisation Scheme (or previous Worker Registration Scheme) had been completed, because it made getting employment and exercising rights easier, if they had proof that they were ‘full’ EEA workers.

Problems with the permanent right to reside

Because there is no requirement for any 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.

There are several legal issues currently under consideration in UK and European courts about the right to reside. The main issue is that the UK regulations interpret the EU regulations as establishing the basic permanent right to reside after five years in the UK with the right to reside. The EU regulations refer only to 'residing legally' for the relevant period. Thus, an EEA national who had simply stayed in the UK exercising their right to freedom of movement but not having a specific right to reside for the whole period would automatically have the permanent right to reside after five years.

Time spent in the UK before 30 April 2006 (i.e. before Directive 2004/38/EC came into force) can count towards the permanent right to reside 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 when the applicant was not an EEA national does not count. However, where a country has joined (acceded to) the EU, time spent before the accession can count if the person was legally doing something that would give them the right to reside if they were an EU citizen (e.g. working, self-employed).

The ‘genuine prospects of work’ test did not apply to any period of registered unemployment before 1 January 2014. At that time an unemployed worker could retain their worker status without time limit by registering at the Jobcentre (i.e. by claiming JSA and ‘signing on’). The same applied to EEA jobseeker status (which only applied to someone who entered the UK looking for work). Either kind of period (retained worker/jobseeker) – no matter how long – can count towards the five years residence (the law is preserved by SI 2013 No. 3032, schedule 3 para 1). DWP guidance (pdf) can be helpful. At paras C1812-14 it states that cumulative gaps of up to 30 days in any one year do not break the claimant’s continuity of residence if they are between two periods when they had different residency rights.

The five years required for permanent residence should be continuous under a right to reside, except that 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). It also seems likely that continuity of residence is unaffected by periods of residence in the UK of up to six months in which the person has no right to reside, but the case law on this is less certain.

Problems with students

The requirement for students is that the person

  • be enrolled at a course of study
  • has comprehensive medical insurance which is provided by
    • a European Health Insurance Card obtained in the home country plus a letter (called a statement of intent) confirming that s/he does do not intend to stay in the UK permanently or
    • private 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 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.

The definition of 'self-sufficient' is that the person has enough resources to avoid becoming an 'unreasonable burden' on the social assistance system of the state (EU Citizenship Directive 2004/38/EC art 7(1)(b). If a self-sufficient person becomes a burden on the social assistance system of the state (which is simply a way of describing means-tested benefits), they may lose the right to reside. UK benefit rules, however, prevent anyone becoming an 'unreasonable burden on the social assistance system', because they generally do not allow a claim for benefit in these circumstances. 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. This is particularly important in relation to rough sleepers from EEA countries, including the accession countries, who have sometimes been threatened with expulsion from the UK on the grounds that they do not have or have lost the right to reside. A detailed briefing on this issue has been prepared by 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 now 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.  These are statuses 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 granted with no conditions attached and so people with this leave are eligible for housing and benefits.  For housing and homelessness services they are in eligible class C. 

EU Pre-Settled Status is limited leave, and does not fit into any eligible classes for housing and homelessness services, and is excluded as a qualifying right for benefits and help with rent.  So generally people with EU Pre-Settled Status have to rely on their EU rights to reside for eligibility. 

There are three limited exceptions to this for transitional cases before the law was changed.

Chartered Institute of Housing
BMENational

Background Topics

How can we improve housing for new migrants in the UK?

Chartered Institute of Housing