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'Brexit' - latest developments

Brexit will mean changes to the rights of EU nationals already living in the UK and of new arrivals from the EU after the UK leaves. Brexit is currently due to take place on 31 October 2019, and details of EU nationals' eligibility for housing and benefits are clearer although there are still some uncertainties. Guidance about the EU Settlement Scheme is now on the main pages of the website. Other 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 apply to the EU Settlement Scheme 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 (but see the section below for probems that might arise).  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 this status must 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 & Wales compared with Scotland.

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 and Welsh rules and on housing benefit regulations for the new rules applying across England, Wales and Scotland.

There is a lot of guidance on how the EU schemes work, such as the website produced by the Mayor of London, which also has guidance in different languages.

EU Settled Status and housing eligibility

The July newsletter featured an article from Praxis about a London borough trying to argue that people with EU Settled Status but no other qualifying right to reside were not eligible for housing assistance.  This is particularly relevant to those working with street homeless people who often have long gaps in work history but can show residence for five years and so apply for Settled Status.  The borough concerned says they are looking again at their decision in this case, and CIH have confirmed with MHCLG that the intention is to make people with Settled Status eligible, but the wording in some government announcements about Brexit has been confusing. CIH has issued a letter (pdf) giving its interpretation of the rules which may be useful to advisers.

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. Under the withdrawal agreement, similar protection is promised to all those who arrive from the EU up to December 2020.

In a 'no deal' scenario, 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 it 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 Public Law Project has produced a 'No Deal' briefing looks at the legal provisions in detail and is being updated as they change.

Legislation will remove ‘free movement’ for EU nationals to the UK, via the Immigration and Social Security Co-ordination (EU Withdrawal) Bill. The Bill has not made any progress since March, but is intended to come into force from early 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 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 for the time being, even if there is 'no deal'. (The requirement to prove a 'right to rent' only applies in England and because of a court decision is unlikely to be extended to the rest of the UK as the government originally planned.)

The only proviso to this is that, if the Bill mentioned above 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. It has also published advice for EEA nationals entering after a no-deal Brexit, 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

Last December. a government white paper (pdf) proposed a ‘fair and humane’ immigration system, focussing on skilled migrants in higher income groups.  There is 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.

However, the new government has indicated that it wants to explore an Australian-style points based system, so it is likely that the white paper will be modified or replaced.

Sources of guidance for European nationals resident in the UK

There are 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