Skip to main content

CIH Scotland

Housing advisers

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.

Although the UK left the European Union on 31 January, all the housing and benefit entitlements of EU nationals who had a right to reside in the UK on or before 31 December 2020 (and for some family members who have come to join them in the UK) will continue until 30 June 2021. This is also the deadline for applying to the EU Settlement Scheme. After that date, most EU nationals who have not applied to the scheme will no longer have the right to live or work in the UK.

Our Brexit news page has any late updates not 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 housing benefit rights of EEA family members?

A family member has the same rights as the EEA national they accompany (and there is no requirement that the family member must be an EEA national themself). 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, and 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 where the family member acquires or retains 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 establishes that the 'benefit of the doubt' lies with the applicant in such cases.

On divorce or dissolution, the family members may retain their right to reside if the principal's former partner is not an EEA national themselves 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 of people with an EU right to reside have any rights?

The child of a migrant worker who has been enrolled in a school or a further education institution has an independent right to reside until they have completed their studies (see the Ibrahim case and the Teixeira case). If the child qualifies under this right then their parent with care responsibility will also have a right to reside. A child will qualify for this right in these circumstances: 

  • s/he lived with at least one of his or her parents in the UK whilst that parent was a worker here
  • it does not depend on the parent having been a worker when s/he started education, just that the child must have been in the country when the parent was a worker (so e.g. a child born to a worker has the right to reside to complete his/her education even if the parent subsequently no longer has a worker's right to reside)
  • there is no requirement whatsoever that the child or the parent who is his/her primary carer (who also has a right to reside dependent on the child's right) are self-sufficient.

Any EEA citizen – including a child – has the right to live in any EEA member state. In order for a child to exercise that right it follows that their parent or (carer) must also be able to live there even if that parent is not himself/herself an EEA national.

If the child is an EEA national (not a UK citizen) this is often known as a ‘Chen’ right after the case that established it.  In 2012 the EEA regulations were amended to include it as a new type of ‘derivative’ right to reside (which is likely to be challenged). The UK government view is that this does not entitle the holder to housing or benefits since the parent is required to have sufficient resources for the child ‘not to become a burden on the public finances of the host Member State’. 

However, Scottish housing law is clear that anyone with a European right to reside is eligible for an allocation and for homelessness services.

Different rules apply if the child is a UK citizen.

Zambrano parents’ may be able to get help from social services to help pay rent and basic living costs: see people with social care needs.

Background Topics

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

A Housing Practitioners' Guide to Integrating Asylum Seekers & Refugees

A Housing Practitioners Guide to Integrating Asylum Seekers and Refugees

Published by the Scottish Refugee Council with support from CIH Scotland

Chartered Institute of Housing Scotland