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Key UK regulations

This content applies to England

A look at the relevant UK provisions that affect the right to reside and the eligibility of EEA/EU nationals for housing assistance and other benefits.

UK immigration rules and EEA/EU nationals

As a member of the European Union (EU), the UK is required to give effect to the free movement rights provided by EU law. In practice, this means that, in respect of EEA/EU nationals, the UK has had to cede its right to control both the entry and stay of EEA/EU nationals exercising free movement rights in the EU.

It must be noted that the UK rules for EEA/EU nationals are not the source of the rights of EEA/EU nationals, but a reflection or description of EU law rights. Not infrequently, there is a tension or conflict between EU law and the UK's immigration rules. For example, a judgment of the European Court of Justice may interpret an EU Regulation or Directive as providing a more extensive right than the UK thought when passing its own rules. In effect, there are two systems of law running in parallel with each other. Where the two systems come into conflict, it is EU law that takes precedence.

The Immigration (EEA) Regulations

The main provisions incorporating EU free movement rights in UK law are the Immigration (European Economic Area) Regulations.[1]

These Regulations provide that anyone who is admitted to, or acquires a right to reside in, the UK under the Regulations shall not require leave to remain under the Immigration Act 1971 during any period when s/he has a right to reside under these Regulations.[2] These Regulations implement the Citizenship Directive.[3]

The Citizenship Directive replaced and simplified different EU rules covering the rights of EU nationals and their family members to enter and reside in the EU. It also incorporated European case law, which gave a wide interpretation to the meaning of key terms, such as 'worker' and 'family member'.

The Immigration (EEA) Regulations provide that EEA nationals who satisfy the definitions of jobseeker, worker, self-employed, self-sufficient person, or a student, and their family members, are to be treated as 'qualified persons'.[4] The definitions are explained on the page on the Law of the European Union. Where the Immigration (EEA) Regulations do not give full effect to the Citizenship Directive in UK law, it may be argued that homeless applicants can bring legal challenges based on the Directive/EC law directly, rather than the UK Regulations.

In brief, the effects of the Citizenship Directive and the Immigration (EEA) Regulations include:

  • a right of three months' residence in any EU country for an EU national and their family member(s), even if they are not exercising an EC Treaty right, eg as a worker.[5] There is no right to social or housing assistance during this period, as the Directive allows for this to be excluded. The Allocation of Housing and Homelessness (Eligibility) (England) Regulations specifically exclude from eligibility those exercising the three months' residence right
  • a definition of five categories of 'qualified person' with the right to reside in the UK with their family members - a worker, a self-employed person, a jobseeker, a self-sufficient student, and a self-sufficient person.[6] The Allocation of Housing and Homelessness (Eligibility) (England) Regulations specifically exclude from eligibility those whose only right to reside is as a jobseeker or the family member of a jobseeker
  • a definition of 'worker' and 'self-employed person' to include those who are temporarily or permanently sick (see the page on Retired or incapacitated workers for details), or those who have lost their jobs but are looking for work in certain circumstances[7]
  • a revised definition of 'family member', to include registered civil partner.[8] The EEA Regulations also add 'extended family members', who have similar rights to a family member.[9] See the page on Family of workers and the self-employed for more information.
  • revised documentation, eg residence documentation[10]
  • a right of permanent residence for an EEA national or their family member after five years' exercising the right to reside in the UK.[11]

The Allocation and Homelessness Regulations

The Allocation of Housing and Homelessness (Eligibility) (England) Regulations[12] (introduced on 1 June 2006) made changes to eligibility for homelessness and allocations assistance for EEA nationals and their family members to reflect the changes introduced by the Citizenship Directive. These Regulations are more restrictive than both the Directive and the Immigration (EEA) Regulations, eg in relation to the definition of 'family member'.

For more information on the categories of eligible and ineligible persons contained in the Allocation and Homelessness Regulations, see the page Overview of the eligibility rules.

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] Immigration (European Economic Area) Regulations 2016 SI 2016/1052; prior to 1 February 2017, Immigration (European Economic Area) Regulations 2006 SI 2006/1003; prior to 30 April 2006, Immigration (European Economic Area) Regulations 2000 SI 2000/1813.

[2] para 1, sch.3, Immigration (European Economic Area) Regulations 2016 SI 2016/1052.

[3] Directive 2004/38/EC on the rights of citizens of the Union and their family members to move and reside freely within the territory of the Member States.

[4] For a list of definitions see reg 6 Immigration (European Economic Area) Regulations 2016 SI 2016/1052.

[5] reg 13 Immigration (European Economic Area) Regulations 2016 SI 2016/1052.

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

[7] regs 4 and 5 Immigration (European Economic Area) Regulations 2016 SI 2016/1052.

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

[9] regs 7(3) and 8 Immigration (European Economic Area) Regulations 2016 SI 2016/1052.

[10] reg 17-20 Immigration (European Economic Area) Regulations 2016 SI 2016/1052.

[11] reg 15 Immigration (European Economic Area) Regulations 2016 SI 2016/1052.

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

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