This page is targeted at housing professionals. Our main site is at www.shelter.org.uk

Persons ineligible for assistance

This content applies to England

An overview of the categories of EEA nationals (including UK and Republic of Ireland nationals) and their family members who are not eligible for housing assistance.

Categories

The categories of persons coming to the UK from abroad who are not eligible for housing assistance - ie the provision of housing to a homeless person or an allocation of permanent accommodation - are set out in the Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006.[1]

The following are excluded from receiving housing assistance:

  • British and Irish citizens coming to the UK for the first time, or returning to the UK after a period of absence, who are neither exempt from the habitual residence test, nor habitually resident in the 'Common Travel Area' (comprising UK, Republic of Ireland, Channel Islands and Isle of Man). British and Irish nationals are exempt from the habitual residence test if they have been exercising an EEA treaty right (such as working) in another EEA country
  • EEA nationals and their family members who do not have a right to reside in the UK
  • EEA nationals with a right to reside in the UK that is specifically excluded from eligibility by the regulations (see below).

Rights to reside which do not confer eligibility

European law gives EEA nationals a right to free movement and a right to reside in other Member States. The right to reside is set out in UK law in the Immigration (European Economic Area) Regulations (see Key UK regulations).

An EEA national must have a right to reside in the UK to be eligible for homelessness assistance. However, not all EEA nationals with a right to reside are eligible.

The following categories of EEA nationals with a right to reside are not eligible for assistance:[2]

  • people whose only right to reside is as a jobseeker (see below)
  • EEA nationals and their family members exercising the three-month initial right to reside
  • [from 8 November 2012] a non-EEA national who is the primary carer of a British citizen. This is often known as a Zambrano right to reside.[3] (see below)
  • EEA nationals and their family members who have a right to reside as a student or as a self-sufficient person may be found not eligible where applying as homeless is considered in breach of their student agreement or self-sufficiency (see below).

An EEA national with no right to reside is not eligible for homelessness assistance.[4]

Jobseekers

EEA nationals have a right to move freely within Member States to seek employment under Article 45 of the Treaty on the Functioning of the European Union (TFEU) - formerly Article 39 of the Treaty establishing the European Union (TEC) and Title 1 to Council Regulation 1612/68/EEC as interpreted by the European Court of Justice.[5] However, under Article 24(2) of Directive 2004/58/EC (ie the Citizenship Directive), a host Member State is not obliged to confer entitlement to 'social assistance' during the first three months of residence to persons other than workers, self-employed persons, persons who retain such status and their family members.

The Courts have decided that a EEA jobseeker who has never actually worked in a certain host Member State cannot acquire a permanent right to reside there based solely on her/his jobseeker status, and does not have the same right to tax and social assistance provided to other EEA nationals who have worker status; under EU law, host Member States cannot deny jobseekers the right to access benefits intended to facilitate their access to the labour market (for example, jobseekers allowance), but are not obliged to grant them the same benefits and social assistance paid to people with a permanent right to reside to cover the minimum subsistence costs of living (for example, employment and support allowance paid primarily to former workers or self employed people while they cannot work because of a illness or disability).[6]

Regulation 6 of the Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006 specifically excludes jobseekers from eligibility for homelessness assistance.

During the accession period, nationals of new EU countries did not have a right to reside in the UK as a jobseeker (see A8, A2 and Croatian nationals for more information). Once the accession period ended, a jobseeking national of those countries has the same right to reside as other EEA nationals who are jobseekers.

Definition of jobseeker

A jobseeker is someone who entered the UK to seek work, or who is seeking work in the UK immediately after previously exercising a right to reside as a worker, self-employed person, self-sufficient person or a student, and who can demonstrate that s/he has a genuine chance of being engaged in employment.[7]

An EEA national is registered (or treated as registered) as a jobseeker if s/he claims:

  • jobseeker's allowance and is registered as actively seeking work at a Jobcentre Plus
  • income support, employment support allowance (income-related) or state pension credit and has declared on the claim form, or otherwise in the course of making a claim, that s/he is looking for work.[8]

Jobseeker status cannot be retained for longer than three months (or 91 days), which can be spread over a number of different periods (ignoring periods exercising the right to reside as a jobseeker prior to 1 January 2014) unless the jobseeker can provide 'compelling evidence' that s/he is continuing to look for work and has a genuine chance of being engaged in a job.[9]

'Compelling evidence'

'Compelling evidence' is not defined in legislation, but the Upper Tribunal has held that it requires no more than meeting the civil standard of proof - ie evidence showing that on the balance of probabilities the jobseeker is continuing to seek employment and has a genuine chance of securing it. All of the circumstances of the case and the quality and weight of the evidence may be taken into account when making the decision, but the standard remains the civil standard and nothing higher.[10]

'Genuine prospect of work' test

DWP guidance states that whether there is compelling evidence will be determined through a 'Genuine Prospect of Work' assessment from 1 July 2014. An offer of a specific job, to start within three months, would definitely meet the requirement. Alternatively, a change of circumstances within the three month period, such as moving location or completing training, as a result of which the claimant will receive a job offer imminently, will also meet the requirement.[11] It is important that the DWP guidance does not impose a higher test than that of 'on the balance of probabilities'.

The Upper Tribunal has held that participation in a government employment scheme (ie a scheme intended to assist people to find work) is relevant evidence to be considered when applying the Genuine Prospect of Work assessment, and may well mean that a claimant who is an active participant will pass the assessment. However, a person participating in such a scheme does remain subject to the assessment.[12]

The Genuine Prospect of Work assessment applies only to those whose only right to reside in the UK is that of a jobseeker or person who has retained worker status because they are involuntarily unemployed and seeking work; someone with an alternative right to reside, eg a permanent right based on five year's residence, is not subject to it.

A jobseeker can start a new period of jobseeking if s/he leaves the UK for at least a continuous period of 12 months.[13]

'Zambrano' carers of UK nationals

A non-EEA national who is the primary carer of (or shares equally in caring for) a dependant British national has a 'derivative right to reside' where the British national would be unable to remain in the EEA (including the UK) if her/his primary carer was required to leave the EEA.[14]Right to reside.

A non-EEA national who has acquired a 'derivative right to reside' in these circumstances is commonly referred to as a Zambrano carer.[15]

Eligibility for homelessness assistance

From 8 November 2012, a Zambrano carer is:

  • ineligible for homelessness assistance (or for an allocation of housing under Part 6 of the Housing Act 1996)[16]
  • not eligible for housing benefit and other means tested benefits.[17]

Zambrano carer who applied before 8 November 2012 is eligible for homelessness assistance.[18] There is no transitional protection for Zambrano carers who were entitled to housing benefit or other means-tested benefits before that date. However, a local authority has the power to provide or secure accommodation at a nil or peppercorn rent for an eligible Zambrano carer who has no income or savings.[19]

The Supreme Court has upheld an earlier Court of Appeal decision that the regulations excluding Zambrano carers from homelessness assistance and from welfare benefits are lawful. However, there is an obligation on the government to ensure a Zambrano carer has access to basic support. This could be met by assistance under section 17 of the Children Act 1989. Such support should be sufficient to not merely safeguard children, but to actively promote their welfare, in accordance with section 11 of the Children Act 2004.[20]

An EEA national who is the primary carer of a dependent British national cannot acquire a derivative right to reside in the UK as a Zambrano carer if s/he is required to leave the UK as s/he and the dependant can live in the EEA country of which s/he is a national.[21]

Self-sufficient persons

A 'self-sufficient person' has a right to reside in the UK and is in theory eligible for homelessness assistance. However, the very act of applying for homelessness assistance would suggest that a person is not self-sufficient, and that they therefore no longer have a right to reside - as a result they are likely to be treated as not eligible.

A self-sufficient person is defined in the Immigration (European Economic Area) Regulations as a person who has:[22]

  • sufficient resources not to become a burden on the social assistance system of the UK during her/his period of residence, and
  • comprehensive sickness insurance cover in the UK.

Resources will only be 'sufficient' if they are enough to avoid not only the self-sufficient person, but also their family members from becoming a burden on UK social assistance. The criteria for qualification as a family member of a self-sufficient person are the same as that for family of workers and self-employed.

Assessment of 'sufficient resources'

Member states must not lay down a fixed amount which they will regard as 'sufficient resources', but must take into account the personal situation of the person concerned.[23]

This does not necessarily entail a specific individual assessment. See below, 'Proportionality of refusing social assistance'.

Reliance on future resources including earnings

The concept of having sufficient resources to avoid being a burden on the social assistance system requires that those resources are in existence before the point where they may actually be needed. Earnings from employment will not generally be classed as resources in this context.

Comprehensive sickness insurance

The requirement for sickness insurance is satisfied where a person has private health insurance. It cannot be avoided by relying on the availability of free National Health Service care.[24] Possession of the European Health Insurance Card (EHIC) could constitute comprehensive sickness insurance, but only in circumstances where the UK government is able to recoup the costs of health care provided under the NHS from another EU member state. This only applies where the 'competent state' (ie the member state responsible for meeting the cost of the person's health care under the terms of the EHIC) is not the UK - this is most likely to be the case where the person is in the UK for a relatively short time.[25]

Proportionality of refusing social assistance

An EEA national who has never worked or looked for work in the UK can be refused social assistance on the basis that s/he is not self-sufficient.[26]

The refusal of assistance in this situation (or in other cases where an EEA national has no right to reside) may be a proportionate response even without carrying out an individual assessment of the person's situation. Although one individual claim for assistance would clearly not constitute an unreasonable burden on the UK's resources, the potential accumulation of claims would.[27]

Relevance of the non-discrimination principle

Refusing to provide assistance to people whose only right to reside is as a jobseeker on the basis that they are not self-sufficient does not infringe the principle of non-discrimination on grounds of nationality laid down in Article 18 of the Treaty on the Functioning of the European Union (TFEU), or of the right to freedom of movement within the territory of the EU in Article 21 TFEU, or of equal treatment found in Article 24 of the Citizenship Directive, notwithstanding that habitually resident citizens of that member state would be eligible in the same situation. The general principles of freedom of movement and non-discrimination were qualified by limitations found in treaties and domestic legislation.[28]

See the section European Union law for more information for more on the principle of non-discrimination.

Students

EEA students and their family members who have sufficient resources and who are covered by comprehensive sickness insurance have a right to reside in the UK.

Definition of a student

A student is defined as a person who:[29]

  • is enrolled on a course at a private or public establishment listed on the UK Border Agency's register of sponsors or at an establishment financed from public funds. This can include vocational training
  • has comprehensive sickness insurance
  • has assured the Home Office, by means of a declaration, or by equivalent means, that s/he has sufficient resources not to become a burden on the social assistance system during her/his residence in the UK.

Level of resources

The Immigration (European Economic Area) Regulations provide that an EEA citizen has sufficient resources if they are greater than the level at which a UK national would become ineligible for welfare benefits, or where s/he has less resources than this they can be regarded as sufficient given her/his personal situation.[30]

Resources will only be 'sufficient' if they are enough to avoid not only the student, but also their family members (see below) from becoming a burden on UK social assistance.

Family members - definition for students

The definition of family member in relation to a student is restricted to:[31]

  • their spouse or civil partner
  • children of the student or her/his spouse or civil partner who are either aged under 21 or dependent on the student or her/his spouse or civil partner
  • an extended family member who has been issued with a EEA family permit, registration certificate or residence card, and continues to meet the conditions for that documentation. See family of workers and self-employed for details.

Where the criteria are not met

Where a student does not fulfill all the elements of the definition of a student (above), s/he will not have a right to reside in the UK as her/his residence will not be classed as lawful. One applicant tried to rely on her French dependent niece, a 16 year-old student, to be granted priority need. She argued that her niece had a permanent right to reside in the UK as EU national who had been legally resident in the country for over five years. However, the Court of Appeal found that, as she never had the required comprehensive sickness insurance, she did not lawfully reside in the UK as a student and therefore did not acquire a permanent right to reside in the UK. She was not eligible for housing assistance in her own right, and her aunt was only owed the restricted case duty.[32] Similarly, the non-EEA spouse of an EU student who did not held comprehensive sickness insurance cover could not obtain a permanent residence card - the Court of Appeal held that the conditions laid out in art 7(1)(c) of the Citizenship Directive had to be interpreted in a strict and literal way and that entitlement to treatment under the National Health Service (NHS) did not satisfy the Directive's requirement for lawful residency.[33]

Eligibility for housing assistance

A student is not one of the category of persons from abroad who is to be treated as eligible for housing assistance as a homelessness applicant.[34]

If the student no longer has sufficient resources and applies as homeless it is arguable that s/he will no longer have a right to reside in the UK and will be treated as a person from abroad who is ineligible for housing assistance.

If the student is also working in the UK s/he may be eligible for assistance as a worker. However the work must be effective and genuine and not marginal and ancillary (for more information see the page on Workers).

Time as a student (as defined above) will count in establishing whether an EEA national has a permanent right to reside in the UK (and is eligible for assistance) through residing in the UK for a continuous period of five years (for more information see the page Five years' residence).

Help for ineligible persons

European nationals who are ineligible for homelessness assistance may be able to claim assistance under the Children Act 1989 if there are children in the household, or the Care Act 2014 if an adult in the household has a need for care and support because s/he suffers from illness or disability. For further details, see the section Ineligible migrants.

Wales

The legislative references and the footnotes on this page reflect the law in England. In Wales, very similar rules made under Welsh legislation apply, but the references may be different. Contact Shelter Cymru for more information about the law in Wales.

[1] Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006 SI 2006/1294, as amended.

[2] reg 6(1)(b) Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006 SI 2006/1294.

[3] reg 16 Immigration (European Economic Area) Regulations 2016 SI 2016/1052.

[4] Abdirahman v Secretary of State for Work and Pensions; Ullusow v Secretary of State for Work and Pensions [2007] EWCA Civ 657; Kaczmarek v Secretary of State for Work and Pensions [2008] EWCA Civ 1310.

[5] Levin v Staatssecretaris van Justitie [1982] EUECJ R-53/81; Procureur du Roi v Royer Case 48/75 [1976] ECR 497; reg 6(1)(b)(i) Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006 SI 2006/1294.

[6] Alhashem v Secretary of State for Work and Pensions [2016] EWCA Civ 395; Alimanovic (Judgment) [2015] EUECJ Case C-67/14; Trojani (Free movement of persons) [2004] EUECJ C-456/02; Collins (Free movement of persons) [2004] EUECJ C-138/02.

[7] reg 6(1) Immigration (European Economic Area) Regulations 2016 SI 2016/1052.

[8] Secretary of State for Work & Pensions v Elmi [2011] EWCA Civ 1403; Memo DMG 34/11, DWP, December 2011.

[9] reg 6(6)-(7) Immigration (European Economic Area) Regulations 2016 SI 2016/1052.

[10] KS v Secretary of State [2016] UKUT 0269 (AAC).

[11] DMG memo 15/14 (Habitual residence and the right to reside - JSA).

[12] EG v Secretary of State for Work and Pensions (JSA) [2018] UKUT 285 (AAC).

[13] see definition of 'relevant period in the case of a jobseeker' in reg 6(1) Immigration (European Economic Area) Regulations 2016 SI 2016/1052.

[14] reg 16(5) and (8) Immigration (European Economic Area) Regulations 2016 SI 2016/1052.

[15] Ruiz Zambrano (European Citizenship) [2011] EUECJ C-34/09; Article 20 of the Treaty on the Functioning of the European Union.

[16] Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006 SI 2006/1294, as amended by reg 2 Allocation of Housing and Homelessness (Eligibility) (England) (Amendment) Regulations 2012 SI 2012/2588.

[17] Social Security (Habitual Residence)(Amendment) Regulations 2012 SI 2012/2587.

[18] Pryce v Southwark LBC and Secretary of State for the Home Department (Intervener) [2012] EWCA Civ 1572.

[19] s.206 Housing Act 1996; R (on the application of Yekini) v Southwark LBC [2014] EWHC 2096 (Admin).

[20] R (on the application of HC) v Secretary of State for Work and Pensions and Ors [2017] UKSC 73.

[21] Dereci & Ors (European citizenship) [2011] EUECJ C-256/11.

[22] reg 4(1)(c) Immigration (European Economic Area) Regulations 2016 SI 2016/1052.

[23] Art.8(4) Directive 2004/38/EC; Pensionsversicherungsanstalt v Brey CJEU C-140/12.

[24] Ahmad v SSHD [2014] EWCA Civ 988; VP v SSWP (JSA) [2014] UKUT 0032 (AAC).

[25] SG v Tameside MBC (HB) [2010] 243 (AAC); SSWP v GS(PC) [2016] UKUT 0394 (AAC).

[26] Pensionsversicherungsanstalt v Brey C-140/12; Dano v Jobcenter Leipzig C-133/13.

[27] Alimanovic (Judgment) [2015] EUECJ Case C-67/14; Mirga v Secretary of State for Work and Pensions: Samin v Westminster City Council [2016] UKSC 1.

[28] Alimanovic (Judgment) [2015] EUECJ Case C-67/14; Mirga v Secretary of State for Work and Pensions: Samin v Westminster City Council [2016] UKSC 1.

[29] reg 4(1)(d) Immigration (European Economic Area) Regulations 2016 SI 2016/1052; Article 7(c) Directive 2004/38/EC.

[30] reg 4(4) Immigration (European Economic Area) Regulations 2016 SI 2016/1052.

[31] reg 7(2) Immigration (European Economic Area) Regulations 2016 SI 2016/1052.

[32] Lekpo-Bozua v Hackney LBC and Secretary of State for Communities and Local Government (Interested party) [2010] EWCA Civ 909.

[33] Ahmad v Secretary of State for Home Department and AIRE Centre (intervener) [2014] EWCA Civ 988.

[34] reg 6(2) Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006 SI 2006/1294.

Back to top