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Right to reside

This content applies to England

Information on the right to reside in the UK.

Overview

The EU Citizenship Directive[1] sets out the rights of European Union (EU) citizens to move and reside freely within the European Economic Area (EEA). It was implemented in the UK by the Immigration (European Economic Area) Regulations.[2] The Regulations set out different types of right to reside in the UK for EEA nationals.

Whether a EEA national is eligible for homelessness assistance and/or a housing allocation and benefits depends on the type of right to reside s/he has. Some categories of people with a right to reside are specifically excluded from eligibility - see Persons ineligible for assistance

Types of right to reside

Under the Immigration (European Economic Area) Regulations, there are four main categories of right to reside in the UK for EEA nationals and their family members:

Initial right to reside

Any EEA national and her/his family members have an initial right to reside in the UK for three months.

A person who has no other right to reside apart from the initial right is not eligible for homelessness assistance, a housing allocation or social security benefits.[3]

Extended right to reside

An extended right to reside is available to 'qualified persons' and their family members for as long as they remain qualified persons and satisfy all the conditions for lawful residency.[4] They are eligible for housing assistance and benefits depending on their circumstances. A qualified person is:

With some exceptions, the following categories of 'qualified persons' are generally not eligible for housing assistance:

  • jobseekers
  • students
  • self-sufficient people.

Permanent right to reside

A permanent right of residence is acquired after:

People with a permanent right to reside are eligible for housing assistance but may be subject to the habitual residence test depending on how they acquired their permanent right to reside.

Derivative right to reside

Primary carers of certain EEA nationals may acquire a derivative right to reside and may be eligible for housing assistance depending on their circumstances.

Derivative right to reside: Baumbast carer (child in education)

A child of an EEA national working in the UK has a right to access education in the UK and a derivative right of residence.[5] Where the child is in full-time education (excluding nursery education) and requires the primary carer to remain in order to continue in education, the primary carer will have a derivative right of residence until completion of the child's studies.[6] It is possible that this could also apply to vulnerable adult children. This will apply even after the EEA worker's departure from the UK or her/his death, or after s/he has ceased to work.[7]

For more information see the page Family of workers and self-employed

Derivative right to reside: Zambrano carer (dependant British national)

A non-EEA national has a 'derivative right to reside' in the UK where:[8]

  • s/he is the primary carer of a dependent British national (a minor child or a vulnerable spouse/parent/adult), and
  • the dependant British national would be unable to remain in the EEA (including the UK) if her/his primary carer was required to leave the EEA.

A non-EEA national who has acquired a 'derivative right to reside' in these circumstances is commonly referred to as a Zambrano carer.[9] Only a direct relative (normally a parent) or a legal guardian can be a Zambrano carer.[10]

Compelled to leave the EEA

A derivative right to reside as a Zambrano carer only arises where the dependent British national would be compelled to leave the EEA as a result of her/his primary carer being refused the right to reside. The threshold of being compelled to leave is high and the test for compulsion is an objective one.[11] Where a wife said she would 'have to move the family' (including her British national child), if her non-EEA husband (and the father of her child) was not allowed to stay in the UK, it was held that her decision to move was not a result of being 'compelled' to do so but a choice based on her desire to preserve family life.[12]

Examples where the threshold might be met include where:

  • a family shares a rare blood group and a blood transfusion might be required
  • an adult with severe autism would find it intolerable for her/his carer to change
  • there is significant psychological dependence on a specific carer deriving from a psychological condition
  • if the primary carer was required to leave the UK, residential care provided by social services would not be an adequate alternative and would not meet the British citizen’s needs.[13]

Best interest of the child

When assessing if the primary carer of a dependent British child has a derivative right to reside, the overriding consideration must be the best interests of the child and her/his personal circumstances such as age, physical and emotional development, the extent of her/his emotional ties to both parents, and the risks which separation from a non-EEA parent might entail.[14]

When is the derivative right acquired

A derivative right to reside is triggered at the point the non-EEA national becomes the primary carer of a dependant British national who would be otherwise compelled to leave the EEA.[15]

Eligibility for assistance of Zambrano carers

From 8 November 2012, a Zambrano carer is not eligible for:

  • housing assistance (under either Part 6 or Part 7 the Housing Act 1996) [16]
  • means tested benefits.[17]

For more information see Persons ineligible for assistance.

A Zambrano carer who applied before 8 November 2012 is eligible for homelessness assistance.[18]

EEA primary carers

An EEA national who is the primary carer of a dependent British citizen would not be able to acquire a derivative right to reside in the UK as a Zambrano carer because even if s/he was required to leave the UK s/he could continue living with her/his dependent British national her/his EEA country of origin.[19]

Derivative right to reside: Chen carer (dependent EEA national)

A non-EEA national has a 'derivative right to reside' in the UK where s/he is the primary carer of a dependant EEA national who:[20]

  • is under 18, and
  • self-sufficient, and
  • would be unable to remain in the UK if her/his primary carer was required to leave the UK.

A non-EEA national who has a 'derivative right to reside' in these circumstances is referred to as a Chen case following a judgment of the European Court of Justice.[21]

For more information see the page Family of workers and self-employed.

Residence documents

The rights to EU residence documents are described in the Citizenship Directive 2004/38/EC (see EU law and eligibility for assistance) and implemented in the UK by the Immigration (EEA) Regulations.

In the UK there is no requirement for EEA nationals to hold relevant residence documents, in contrast there is a compulsory requirement for residence documents in most other EEA/EU states.

Residence documents certify, rather than confer, a right to reside on the holder. In the homelessness context, a residence card or certificate may be useful as evidence of status, but the local authority should not insist on it. The EEA/EU national is still entitled to all the rights derived from EU law if s/he has neither applied for, nor been issued with, permits because her/his rights are derived directly from EU law.[22]

Residence documents do not provide conclusive evidence that the holder has a right to reside in the UK. The potential problem for homeless applicants with residence permits, cards or certificates is where the person in possession of the document never satisfied, or no longer satisfies, all the requirements for being a 'qualified person' or family member. In such a situation, a local authority may take the view that the homeless applicant, on ceasing to be a qualified person, no longer has a right of residence and has become a person subject to immigration control. The local authority could take the view that, on ceasing to be a qualified person, the EEA national and her/his family are unlawfully present in the UK.[23]

There may also be cases where an EEA national is lawfully present but has no right to reside.[24]

Applications for residence documents

With effect from 1 February 2017, applications for residence documents must be made:[25]

  • online, using the relevant page on Gov.uk, or
  • on a prescribed form.

On application, the Home Office must issue residence documents to EEA nationals and their family members whenever the conditions are met; whereas, in the case of extended family members, the issue of documentation is at the discretion of the Home Office. See Family members of workers and self-employed for information about family members of EEA qualified persons.

EU Settlement scheme

From 30 March 2019, EEA nationals and their family members wishing to continue to live in the UK after Brexit (ie 'EU exit day') need to apply for settled or pre-settled status under Appendix (EU) to the Immigration Rules. This applies to:

  • EEA citizens (EU citizens and citizens of Norway, Iceland and Lichtenstein)
  • Swiss citizens
  • family members of the above
  • individuals with derivative right to reside under regulation 16 of the Immigration (EEA) Regulations 2016 (this includes Baumbast, Zambrano and Chen carers)
  • EEA nationals and family members already in possess of a residence card or document confirming their right to reside in the UK under EU Directive 2004/38 (the Citizenship Directive).

Irish citizens and people with other indefinite leave to enter or remain in the UK are exempt.

Individuals with a derivative right to reside under regulation 16 of the Immigration (EEA) Regulations who acquire leave under the EU Settlement Scheme will not lose their derivative right to reside.[26]

The government has issued guidance for local housing authorities confirming that, even in a 'no deal scenario' the rights and status of EEA nationals and their family members living in the UK before 'EU Exit day' will remain the same as before - they will continue to be eligible to access social housing, including supported housing, and homelessness assistance on the same terms as before, until further notice.

How to apply

The rules on how to make an application under the EU Settlement scheme and related fees are available on Gov.uk.

Immigration advice

People in need of advice on whether or not they should apply for residence documents to prove their right to reside in the UK should be referred to an immigration adviser.

People in need of advice on when and whether they should apply for the EU Settlement scheme, or any other aspect of the application process, should be referred to an immigration adviser or an organisation authorised to provide immigration advice, for example UKCEN, ILPA , AIRE Centre. Useful information is also available from freemovement and EU Citizens' Rights.

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] Directive 2004/38/EC.

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

[3] regs 4(1)(b)(ii) and 6(1)(b)(ii) Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006 SI 2006/1294; Social Security (Persons from Abroad) Amendment Regulations 2006 SI 2006/1026.

[4] reg 14(1) Immigration (European Economic Area) Regulations 2016 SI 2016/1052, as amended by Immigration (European Economic Area) (Amendment) Regulations 2018 SI 2018/801. See also DMG Memo 15/18.

[5] Article 10, EU Regulation 492/2011, reg 16(3) Immigration (European Economic Area) Regulations 2016 SI 2016/1052.

[6] reg 16(4) Immigration (European Economic Area) Regulations 2016 SI 2016/1052

[7] Harrow LBC v Ibrahim [2010] ECJ C-310/38; Texeira v Lambeth LBC [2010] ECJ C-480/08.

[8] reg 16(5) and (8) Immigration (European Economic Area) Regulations 2016 SI 2016/1052, as amended by Immigration (European Economic Area) (Amendment) Regulations 2018 SI 2018/801; see also DMG Memo 15/18.

[9] Article 20 Treaty on the Functioning of the European Union (TFEU); Ruiz Zambrano (European Citizenship) [2011] EUECJ C-34/09; DM v Secretary of State for Work and Pensions (PIP) [2019] UKUT 26 (AAC);  see also McCarthy (European Citizenship) [2011] EUECJ C-434/09.

[10] reg 16(8) Immigration (European Economic Area) Regulations 2016 SI 2016/1052, as amended by Immigration (European Economic Area) (Amendment) Regulations 2018 SI 2018/801; Saeed v Secretary of State for the Home Department [2018] EWHC 1707 (Admin).

[11] MS (Malaysia) v Secretary of State for the Home Department [2019] EWCA Civ 580.

[12] Patel v Secretary of State for the Home Department [2017] EWCA Civ 2028.

[13] MS (Malaysia) v Secretary of State for the Home Department [2019] EWCA Civ 580.

[14] Chavez-Vilchez and Others v Raad van bestuur van de Sociale verzekeringsbank and Others CJEU [2017] C-133/15; see also Hines v Lambeth LBC [2014] EWCA Civ 660 which needs to be examined in light of the (later) CJEU decision; see also R (on the application of Harrison) v Secretary of State for the Home Department [2012] EWCA Civ 1736 and para 10 of the Schedule to Immigration (European Economic Area) (Amendment) Regulations 2018 SI 2018/801.

[15] Sanneh v Secretary of State for Work and Pensions and Others [2015] EWCA Civ 49.

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

[20] reg 16(2) Immigration (European Economic Area) Regulations 2016 SI 2016/1052.

[21] Chen (Free movement of persons) [2004] EUECJ C-200/02.

[22] Procureur du Roi v Royer Case 48/75 [1976] 2 CMLR 619.

[23] See for example Secretary of State for Work and Pensions v Dias (Case C325-09) [2011] 3 CMLR 40; Secretary of State for the Home Department v Ojo [2015] EWCA Civ 1301; Ahmad v Secretary of State for the Home Department [2014] EWCA Civ 988; MD v Secretary of State for Work and Pensions (SPC) (Residence and presence conditions: right to reside) [2016] UKUT 319 (AAC).

[24] Mirga v Secretary of State for Work and Pensions : Samin v Westminster City Council [2016] UKSC 1; Kaczmarek v Secretary of State for Work and Pensions [2008] EWCA Civ 1310; MD v Secretary of State for Work and Pensions (SPC) (Residence and presence conditions: right to reside) [2016] UKUT 319 (AAC).

[25] reg 21 Immigration (European Economic Area) Regulations 2016 SI 2016/1052, as amended by Immigration (European Economic Area) (Amendment) Regulations 2017 SI 2017/1 and by Immigration (European Economic Area) (Amendment) Regulations 2018 SI 2018/801.

[26] reg.16 Immigration (European Economic Area) Regulations 2016 SI 2016/1052, as amended by reg.3(6) Immigration (Immigration (European Economic Area Nationals) (EU Exit) Regulations 2019 SI 2019/468.

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