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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.

On 1 January 2021 the law about housing and benefit entitlements for EU nationals changed, see the first section below. Our Brexit news page has any late updates not yet added to this page.

This section looks at housing problems faced by family members of EEA nationals who had a right to reside in the UK on or before 31 December 2020 and so have ‘preserved rights’. Those family members might also be EEA nationals, or they may be nationals of a non-EEA country.

Generally, family members have the same rights as those they accompany so you may want to check the pages on advising EEA workers and self-employed people and advising other EEA nationals. The definitions of 'family member' (there are different rules for the economically active and for other EEA nationals) are on the page for EEA family members. Details of the regulations are set out in the side page on the law on EEA Family members.

Advice for those without preserved rights depends on whether they have limited leave or indefinite leave – see the appropriate pages.

What are the preserved housing and benefit rights of family members of EEA nationals?

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.

This applies even if the family is not living together, unless the right only applies to a 'dependant' family member.

Dependence may be via sharing a household and its expenses, but can also be financial dependence or dependence for care and other support even if the dependant is living elsewhere.

A 19-year old girl who is pregnant presents as homeless. She arrived with her parents, who are both working in the UK and are EEA nationals. She is not economically active or studying, but has the same rights as her parents, and so is eligible as a child, aged under 21, of EEA workers. Her disabled sister, however, who is 22 and has also been thrown out, and is also not economically active or studying, is not eligible. She does not count as an EEA worker’s child, because she is not aged under 21. When she was dependent on her parents, she had family rights as a dependant. Now she no longer gets her family’s support, she is no longer a dependant.

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.

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, 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 have any rights?

Children and their adult parents can have certain rights to reside, known as derivative rights (Regulation 16 of the Immigration (European Economic Area) Regulations 2016).

A child can have a right to reside, called a derivative right, if one of the following circumstances are met:

  • the child 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 enrolled in a school or further education institution; or
  • the child is an EEA national aged under 18 who is self-sufficient; or
  • he/she is the child (aged under 18) of a primary carer for a child in one of the above two circumstances, where the primary carer would have to leave the UK if the child was required to leave the UK.

An adult primary carer for the child (usually his or her parent, but may also be a legal guardian or another direct relative such as a grandparent) has a right to reside, called a derivative right and deriving from the child’s right, if one of the following circumstances are met:

  • the child in education would be unable to continue to be educated in the UK if the primary carer left the UK for an indefinite period (known as the Ibrahim or Teixeira right after the cases that confirmed it);
  • the self-sufficient child would be unable to remain in the UK if the primary carer left the UK for an indefinite period; or
  • the child is a British citizen who would be unable to reside in the UK or in an EEA member state if the primary carer left the UK for an indefinite period (known as the Zambrano right after the case that established it).

Parents who are not eligible for benefits or housing or homelessness assistance can apply to children’s services for help if they are destitute (see people with social care needs: R (U) v Newham LBC[2012] EWHC 610 (Admin)). In certain circumstances, children’s services will be prohibited from providing assistance unless it is either to fund travel to another country, or a refusal to provide assistance would be a breach of human rights or EU law. The Courts have held that if the parent has an outstanding application for leave to remain, which could not be continued if he or she was required to leave the country, it would be a breach of human rights to refuse to provide assistance (R (Clue) v Birmingham City Council).

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 must do so by 30 June 2021.  

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 apply to convert this into EU settled status after 5 years.  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 if they are also habitually resident. 

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.

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Background Topics

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

Chartered Institute of Housing