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Right to reside

This content applies to England

Information on the right to reside in the UK.

Introduction

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 four main categories of different types of right to reside in the UK for EEA nationals and their family members.

Whether an EEA national is eligible for homelessness assistance, a housing allocation and most means-tested 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

Initial right to reside

Any EEA national and her/his family members have an initial right to reside in the UK for three months, provided s/he does not become a burden on the host member state.

A person who has no other right to reside apart from the initial right is not eligible for homelessness assistance, a housing allocation and most means-tested 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] Whether they are eligible for homelessness assistance, a housing allocation and most means-tested benefits depends on their circumstances.

A qualified person is:

  • a worker
  • a self-employed person
  • a jobseeker
  • a self sufficient person
  • a student.

Eligibility for assistance
Economically active EEA nationals (workers and self-employed) and their family members are eligible for assistance. For more information, see Persons eligible for assistance.

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:

Eligibility for assistance
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

A primary carer is a direct relative or legal guardian who has primary responsibility for an EEA national's care (child or dependent adult), or who shares this responsibility equally with another person.[5]

Primary carers of certain EEA nationals, who do not have a more substantive right to reside in the UK, may acquire a derivative right to reside. The three main types of derivative right to reside are:

  • primary carers of children in education ('Baumbast' carers)
  • primary carers (non-EEA nationals only) of dependant British nationals ('Zambrano' carers)
  • primary carers of self-sufficient EEA children ('Chen' carers)

Not everyone with a derivative right to reside is eligible for assistance. See below for more details about eligibility of each category.

Primary carer of a child in education ('Baumbast' carer)

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.[6] A person will have a right to reside as a 'Baumbast' carer, if:

  • s/he is the primary carer of a dependent child
  • the child is in full-time education (excluding nursery education)
  • the child requires the primary carer to remain in order to continue their education, and
  • the child was resident in Britain at some point when their EEA parent was a worker here

The primary carer will have a derivative right of residence until completion of the child's studies.[7]

There is no requirement that the child is in education at the time the EEA parent is a worker. The right will apply even after the EEA worker's departure from the UK or her/his death, or after s/he has ceased to work.[8] It is possible that this could also apply to vulnerable adult children, however no binding case law exists so far.

Eligibility for assistance of 'Baumbast' carers
'Baumbast' carers are eligible for assistance.  For more information, see Family of workers and self-employed

Primary carer of a dependent British national ('Zambrano' carer)

A non-EEA national has a 'derivative right to reside' in the UK as a 'Zambrano' carer if:[9]

  • s/he is the primary carer of a dependent British national (a minor or a vulnerable spouse/parent/adult), and
  • the dependant British national would be unable to reside in the EEA if the primary carer was required to leave because s/he would be compelled to leave with their carer and relocate to the carer's country of origin outside of the EEA

A derivative right to reside arises at the point when the non-EEA national becomes the primary carer of a dependant British national who would be otherwise compelled to leave the EEA.[10]

Compelled to leave the EEA
In order for the 'Zambrano' right to arise, the dependant British national must be unable to reside in the EEA if her/his primary carer was to be 'compelled to leave' the UK.

Primary carers who are EEA nationals will not be able to establish a 'Zambrano' derivative right to reside. If an EEA primary carer of a dependant British national was required to leave the UK, s/he and the dependant British national would be able to settle in another EEA state (the carer's country of origin), therefore the British national would not be compelled to leave the EEA.[11]

The threshold of being compelled to leave is high and the test for compulsion is an objective one with focus on the actual facts of each case.[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]
  • where a British mother indicated she would follow her non-EEA husband, who was their British child’s primary carer, if he was expelled to his non-EEA country of origin, meaning the British child would be forced to leave as well (it was irrelevant whether the mother could or should stay in the UK to look after the child)[14]

Dependent children and dependent adults
EU law differentiates between dependent children and dependent adults. It is recognised that unlike minors, an adult would be, as a general rule, capable of living an independent existence apart from members of her/his family. Therefore, non-EEA primary carers of dependant British adults will be able to establish a ‘Zambrano’ right to reside only in exceptional circumstances, where the dependent British national would as a matter of fact leave the EEA with their non-EEA carer, rather than stay and rely on other forms of support (for example, assistance from social services).[15]

Child's best interest 
It was previously thought that developments in EU case law[16] meant that a detailed assessment of the child's best interest would always be the main focal point when deciding if the child would be compelled to leave the EEA with their non-EEA carer. The Supreme Court has since clarified that the 'compelled to leave' test will often be a simple one based on the actual facts in each case.[17] However, there will be circumstances in which authorities will be required to assess the child's best interests and her/his personal circumstances, for example if the parents are separated and the other parent is an EEA national who is not the child's primary carer. The fact that the EEA parent is able and willing to assume parental responsibility may not necessarily mean that the non-EEA parent is not a 'Zambrano' carer.[18]

A detailed assessment of the child's best interest when deciding if the child would be compelled to leave the EEA would include consideration of all her/his personal circumstances, including:

  • age
  • physical and emotional development
  • extent of emotional ties to both parents
  • risks which separation from a non-EEA parent might entail

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) [19]
  • means tested benefits.[20]

'Zambrano' carers who are destitute should be assisted by social services. For more information see Persons ineligible for assistance.

A 'Zambrano' carer who applied before 8 November 2012 is eligible for homelessness assistance.[21]

Primary carer of a self-sufficient EEA child ('Chen' carer)

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:[22]

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

The Court of Justice of the European Union held that a child who relies on financial resources generated by a parent working without a work permit may be considered self-sufficient.[23]

Eligibility for assistance of 'Chen' carers
Normally, applying for homelessness assistance would suggest that the child is no longer self-sufficient and therefore the primary carer is not eligible because no longer has a derivative right to reside. However, the local authority will have to decide whether a homelessness application would amount to a burden on the state’s social assistance.  As such an applicant could be eligible for assistance, for example, if fleeing violence or is homeless due to an emergency such as a flood or fire where s/he has financial resources but is unable to secure accommodation quickly.

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 states.

In the UK 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 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.[24]

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 applicant, on ceasing to be a qualified person, no longer has a right of residence, has become a person subject to immigration control and is unlawfully present in the UK.[25] There may also be cases where an EEA national is lawfully present but has no right to reside.[26]

With effect from 1 February 2017, applications for residence documents must be made:[27]

  • online, 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.

Right to reside after Brexit

The UK ceased to be member of the EU at 11pm on 31 January 2020 (exit day)[28] and entered a transition (implementation) period until 11pm on 31 December 2020 (IP completion day).[29] Due to saving and transitional provisions, [30] the legal framework applicable to EEA nationals, as in force on exit day, will continue to apply until the end of the transition period. In addition, those with settled status granted under the EU Settlement Scheme will be eligible under domestic law, irrespective of whether they are exercising EU Treaty rights in the UK.

Transition period

Under the European Union (Withdrawal) Act 2018 as amended by the European Union (Withdrawal Agreement) Act 2020, with effect from exit day, the supremacy of EU law in the UK ends, but:

  • EU law (such as Treaties, Directives, Regulations, Freedom of Movement and case law of the Court of Justice of the EU) as in force immediately before exit day is converted into UK law
  • UK law made to implement EU obligations (such as the Immigration (European Economic Area) Regulations 2016 and domestic case law) is preserved as before exit day until the end of the transition period
  • the UK government has temporary powers to correct laws by way of secondary legislation in order to ensure that the UK legal system continues to function correctly outside the EU.

During the transition period, the rules about eligibility for social housing, homelessness assistance and benefits of EU/EEA nationals will be the same as before 'exit day'.

After the end of the transition period, residence documents issued under EU Treaty rights will no longer be valid and nationals from the EU, Norway, Iceland, Liechtenstein and Switzerland who wish to continue living in the UK will need to regularise their immigration status under UK law. Gov.uk - UKVI Tool: Continue to live in the UK after it leaves the EU is a step-to-step guide to help EU/EEA nationals decide what to do and when, according to their personal circumstances.

EU Settlement Scheme

The UK has opened a dedicated settlement scheme under Appendix EU to the Immigration Rules to offer EU/EEA nationals and their family members the opportunity to protect their right to continue living in the UK after the end of the transition period. For more information, see EU settlement scheme

Immigration advice

People in need of specialist advice about their right to reside and applications under the Immigration Rules should be referred to an immigration adviser.

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; regs 4(1A) and 6(1A) Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006 SI 2006/1294, as respectively inserted by regs 3(a) and 4(a) Allocation of Housing and Homelessness (Eligibility) (England) (Amendment) (EU Exit) Regulations 2019/861.

[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; see also AM v SSWP and City and County of Swansea Council [2019] UKUT 361 (AAC).

[5] 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).

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

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

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

[9] Article 20 Treaty on the Functioning of the European Union (TFEU); 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; 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] Sanneh v Secretary of State for Work and Pensions and Others [2015] EWCA Civ 49.

[11] Dereci & Ors (European citizenship) [2011] EUECJ C-256/11; see also AM v SSWP and City and County of Swansea Council [2019] UKUT 361 (AAC).

[12] Patel and Shah v Secretary of State for the Home Department [2019] UKSC 59; MS (Malaysia) v Secretary of State for the Home Department [2019] EWCA Civ 580;  (on the application of Harrison) v Secretary of State for the Home Department [2012] EWCA Civ 1736.

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

[14] Patel and Shah v Secretary of State for the Home Department [2019] UKSC 59

[15] KA v Belgium CJEu Case C-82/16; Patel and Shah v Secretary of State for the Home Department [2019] UKSC 59.

[16] Chavez-Vilchez and Others v Raad van bestuur van de Sociale verzekeringsbank and Others CJEU [2017] C-133/15.

[17] Patel and Shah v Secretary of State for the Home Department [2019] UKSC 59.

[18] Chavez-Vilchez and Others v Raad van bestuur van de Sociale verzekeringsbank and Others CJEU [2017] C-133/15; see also Patel and Shah v Secretary of State for the Home Department [2019] UKSC 59; see also Hines v Lambeth LBC [2014] EWCA Civ 660 which needs to be examined in light of the (later) CJEU (C-133/15) and UKSC ([2019] UKSC 59) decisions.

[19] 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.

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

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

[22] reg 16(2) Immigration (European Economic Area) Regulations 2016 SI 2016/1052; Chen (Free movement of persons) [2004] EUECJ C-200/02.

[23] Ermira Bajratari v Secretary of State for the Home Department CJEU C-93/18.

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

[25] 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).

[26] 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).

[27] 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.

[28] see definition of 'exit day' in s.20 European Union (Withdrawal) Act 2018, as amended by reg.2(2) European Union (Withdrawal) Act 2018 (Exit Day) (Amendment) (No. 2) Regulations 2019/859 and reg. 2(2) European Union (Withdrawal) Act 2018 (Exit Day) (Amendment) (No. 3) Regulations 2019/1423.

[29] see definition of 'IP completion day' in s.39 European Union (Withdrawal Agreement) Act 2020 (C.1).

[30] ss.1A-8 European Union (Withdrawal) Act 2018, as amended by ss.1-4 European Union (Withdrawal Agreement) Act 2020.

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