Skip to main content

CIH logo

Housing advisers


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 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 to towards the qualification period (assuming s/he was registered and met the work-related conditions). Significantly, 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 prior to 2014 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).

But the requirement for continuity means that even a short period of residence that does not comply with the EEA regulations (e.g. a jobseeker who did not register at the Jobcentre) causes the clock to be reset to zero and a five-year period to be served afresh. DWP guidance (pdf) can be helpful. At paras C1812-14 it states that cumulative gaps of up to 30 days in any 12-month period do not break the claimant’s continuity of residence if they are between two periods when they had different residency rights (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 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.

A person is self-sufficient if s/he has ‘comprehensive sickness insurance cover’ 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).

A person meets the requirement for comprehensive sickness insurance if:

  • 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.

But it is not met by simple access to free treatment under the NHS. However, DWP guidance for universal credit (para C1730) states that a person meets this requirement if s/he is ‘entitled to reimbursement of [his/her] NHS healthcare costs from another Member State' and that 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.

Chartered Institute of Housing
BMENational

Background Topics

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

Chartered Institute of Housing