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'Brexit' - latest developments

Brexit will mean changes to the rights of EU nationals already living in the UK and for new arrivals from the EU after the UK leaves. Brexit day has been postponed, possibly until October 2019, but the details of EU nationals' eligibility for housing and benefits are becoming clearerr. Revised guidance is now on the website - and new developments are summarised on this page.

How the EU Settlement Scheme affects housing and benefits eligibility

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.

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 or make people eligible for benefits, so generally people with EU pre-settled status have to rely on their EU rights to reside for eligibility.  However, because of the way that the regulations are worded, people with EU rights to reside (including non-EEA nationals who have a right to reside) have different eligibility rights for housing and homelessness services in England, Scotland and Wales. In Wales, having pre-settled status may make some eligible who would not otherwise have been eligible, but new rules will apply from 19 July and will be covered in detail later.

There are some other exclusions, explained in the adviser pages of the website. Look at the section on the effects of the EU Settlement Scheme on the adviser pages for European workers, Other European nationals and European family members.

The site also has consolidated regulations on housing and benefits eligibility which have been updated with the new rules. See the pages on The law on housing eligibility for the new English rules and on housing benefit regulations for the new rules applying across England, Wales and Scotland.

Arrangements for European nationals in the UK

EU citizens are now able to apply for settled status or for leave to stay long enough to get settled status. There is a deadline of 30 June 2021 for EU citizens to sort out their residence rights.  After that date, EU citizens (except Irish citizens) will be treated like anyone else who is subject to immigration control. 

There is a lot of guidance on how the settled and ‘pre-settled’ schemes will work.  One of the clearest is the website produced by the Mayor of London.  Here are the headlines:

  • EU citizens and family members who can prove that they have lived in the UK for five years can apply for settled status. 
  • People who cannot prove the five years can apply for pre-settled status and serve out their five years then apply for settled status.
  • The scheme applies not only to EU nationals and family members but also to other EEA nationals such as those from Norway, Liechtenstein, Iceland and Switzerland
  • Everyone has to apply, including children and people who now have the permanent right to reside.
  • EU citizens or family members (defined as now) who have indefinite leave to remain do not have to apply but may wish to, as settled status will give them more rights.
  • Residence to qualify for settled status must be continuous, with no breaks of more than 6 months in any 12-month period, with some exceptions.
  • The scheme relies on simple residence, not ‘right to reside’ so, for example, there will be no need for students or the self-sufficient to provide evidence of health insurance
  • People with EU settled status can live outside the UK for up to five years and retain their status (unlike people with indefinite leave to remain who lose it after two years’ absence)
  • Applications are to be made online or via an app, or on paper for some exceptional cases.  Applicants will need a valid passport or ID card and proof of residence. There are different fees for adults and children, with some categories being exempt from the fee.

The proposed legislation also enshrines the rights of all Irish citizens to enter and remain in the UK, unless subject to a deportation order, exclusion order or an international travel ban.  In other words, it makes them not subject to immigration control.

What if there is ‘no deal’? – what it means for housing and other entitlements

How would 'no deal' affect EU migrants? There is a clear difference between those already here and those who might arrive after the UK leaves the EU. The former should be largely protected by the arrangements above, if they have passed through the EU settlement scheme. But under the withdrawal agreement, similar protection is promised to all those who arrive from the EU up to December 2020. If the withdrawal agreement isn’t signed, what happens? The government has published very brief guidance on EU nationals' eligibility for social housing and benefits. Basically it says that those in the UK before the UK leaves the EU have their rights protected, but for those who arrive after that date their rights are still unclear and not yet resolved.The Free Movement blog has also looked at this question.

Legislation is already passing through parliament to remove ‘free movement’ for EU nationals to the UK, in the form of the Immigration and Social Security Co-ordination (EU Withdrawal) Bill. This is intended to come into force from the start of 2021. In the meantime both groups of EU nationals with uncertain status should be protected by the existing EEA Regulations from 2016, which should remain in force. One snag is that this protection will exist only under domestic law, without the possibility of a claim under European law itself, once Britain leaves the EU.

Will the status of these EU nationals be the same when it comes to claiming housing assistance or applying for a private tenancy? Yes. For example, while landlords in England (but not in the rest of the UK) should ask all private tenants for proof of their immigration status, once they show a UK passport (or equivalent) or an EU passport or ID card, the applicant shows they have an automatic right to rent the property. This should continue, even if there is no withdrawal agreement. (The requirement to prove a 'right to rent' only applies in England and because of a court decision is unlikely to be extended to Scotland, Wales or Northern Ireland, as the government originally planned.)

The only proviso to this is that, if the Bill mentioned above is passed, once it is enacted it will automatically extinguish the old regulations. Government would have to ensure that that part of the legislation is not commenced until the replacement rules are in place. Given that this will take time, it may want to stick to its original plan of having them in operation by early 2021. Of course, it is these rules which protect the rights of existing EU residents, too, so the government must be careful to ensure this protection is not interrupted.

However, none of this resolves the long-term position of EU nationals who arrive after Brexit. Once the new legislation and replacement rules are in force, any new EU arrivals afterwards will be treated no differently to migrants arriving from outside the EU. There is every likelihood that this middle group of EU nationals – those who arrive after Brexit but before the new rules are put in place – will have no right to residence, as they will not have had time to build up the three-year residency requirement. So their protected status as EU nationals will eventually disappear, unless there is some sort of exceptional treatment. This is still a possibility, as the government had already agreed to separate treatment for EU migrants arriving after Brexit day but before the end of the transition period – but this, of course, was part of the withdrawal agreement.

The government has published advice for EU citizens already here about their benefits and pensions in the UK in the event of a no-deal Brexit. Then on January 28, advice for EEA nationals entering after a no-deal Brexit was published, but gave no indication of eligibility for welfare benefits, housing help, etc.

Right to rent - latest on EU nationals in England

The government says in advice to landlords that there will be no change in the way EU nationals prove their 'right to rent' until 1 January 2021, whether or not the UK leaves the EU without a 'deal'. There is still no indication of the rules about right to rent for European nationals who arrive in the UK after that date, however.

Post-Brexit immigration policy

Shortly before Christmas the Sajid Javid announced his planned post-Brexit immigration policy. His white paper proposes a ‘fair and humane’ immigration system. It reflects the government’s insistence on focussing on skilled migrants in higher income groups.  There will be a year-long consultation around the proposals, which include scrapping the current cap on the number of skilled workers such as doctors or engineers from the EU and elsewhere. The government plans to impose a minimum salary requirement of around £30,000 for skilled migrants seeking five-year visas while ‘low-skilled’ workers from certain countries including the EU will be able to apply for work visas of up to a year. The intention is to phase in the new system from 2021.

Sources of guidance for European nationals resident in the UK

There are now some useful guides produced by expert lawyers, available free online:

How to make a permanent residence application

Free Movement has a step-by-step guide to help do this.

Effects of Brexit on Irish nationals

A House of Commons paper describes the 'Common Travel Area' and how it might change under Brexit, affecting Irish nationals. Some problems that Irish citizens may face are described by the Free Movement blog.

Effects of Brexit on asylum seekers and refugees

The government has said little on this issue but Free Movement has examined it in three articles, starting here.

We welcome suggestions for updating the guidance on the Housing Rights website and for including links to relevant new sources of guidance or information.

Please email with any suggestions, making clear your message refers to this website.

Chartered Institute of Housing

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Chartered Institute of Housing