People with EU pre-settled status eligibility for homeless assistance
The eligibility rules for applying for homeless assistance for EEA nationals and their family members who have been granted pre-settled status under the EU Settlement Scheme.
- What is pre-settled status?
- Additional requirements for EEA nationals with pre-settled status
- Additional requirements for family members with pre-settled status
- Family members of British and Irish citizens
- How to show pre-settled status
- Requirement to notify EU citizens rights court cases
- Immigration advice
- Eligibility rules challenge
What is pre-settled status?
Pre-settled status is a form of limited leave to remain in the UK granted to EEA nationals and their family members under the EU Settlement Scheme.
People with pre-settled status are entitled to:
remain in the UK after 30 June 2021
apply for settled status once they have lived in the UK continuously for five years
Pre-settled status does not automatically entitle people to public funds, including homelessness assistance. Homeless applicants with pre-settled status are eligible if they meet additional conditions.
People with pre-settled status are referred to as the 'post-transition period group' in the relevant regulations.[1]
For the purpose of assessing eligibility for homelessness assistance, the term ‘EEA nationals’ refers to nationals of the EU, Norway, Iceland, Liechtenstein and Switzerland.[2]
Additional requirements for EEA nationals with pre-settled status
EEA nationals with pre-settled status are not treated as subject to immigration control when their eligibility for homelessness assistance is assessed.[3] Eligibility for homelessness assistance of EEA nationals with pre-settled status is assessed with reference to regulation 6 of the Eligibility Regulations.
People with pre-settled status must meet the eligibility criteria under retained EU law that applied to EEA nationals before January 2021 to qualify for homelessness assistance.[4]
Under retained EU law, EEA nationals are eligible if, at the time of application, they meet the conditions for being treated as a:
worker or self-employed person
person with permanent right to reside
primary carer of a child in education where one of the child's parents is or was an EEA worker or self employed person (‘Baumbast’ right)
Each right to reside that confers eligibility is subject to separate conditions.
Workers and self-employed EEA nationals
Under retained EU law, economically active EEA nationals with pre-settled status are eligible for homelessness assistance as long as work or self-employment is 'genuine and effective'. In certain circumstances workers and self-employed people who are not economically active at the time of their homeless application may continue to be eligible for assistance.
After 31 December 2020, previously economically active EEA workers and self-employed persons no longer have to show that they have a genuine chance of finding another job in order to retain their eligible status.[5] The other conditions for retaining the status of a worker in retained EU law continue to apply.[6]
Permanent right to reside
Under retained EU law, permanent right to reside is usually acquired after five years of exercising EU free movement rights in the UK. This could apply, for example, when someone with pre-settled status qualifies for settled status under the EU Settlement Scheme but has not made an application yet.
People with pre-settled status who fail to make a second application to the EU Settlement Scheme after five years of residence in the UK do not lose their rights. They are entitled to a permanent right to reside once they have resided in the UK for the required five-year period. The imposition on them of a mandatory requirement to apply for settled status at the expiry of their pre-settled status has been declared unlawful.[7]
A permanent right to reside can be acquired earlier if an economically active EEA national retires or becomes permanently incapacitated.
Primary carers of children in education
Under retained EU law, a person from abroad who is the primary carer of a child in education is eligible for homelessness assistance, provided that one of the child's parents is or was an EEA worker. This includes a situation where the primary carer is a former EEA worker themselves. For an overview of the conditions that have to be met for the primary carer to be eligible, see EEA nationals eligibility for homelessness assistance before January 2021.
From 2 February 2023, a person is also eligible if they are the primary carer of a child in education of someone who was a self-employed EEA national. The EEA national must have been engaged in self-employed activity at some point while the child was resident in the UK. This does not apply where the EEA national had only retained self-employed status due illness or incapacity.[8]
Habitual residence test
EEA workers and self-employed persons with pre-settled status, including those with retained worker or self-employed status, are exempt from the habitual residence test.[9]
Additional requirements for family members with pre-settled status
Regardless of their nationality, EEA nationals' family members who have pre-settled status are not subject to immigration control when their eligibility for homelessness assistance is assessed.[10] They should be assessed in accordance with regulation 6 of the Eligibility Regulations.[11]
To qualify for homelessness assistance, family members with pre-settled status must meet the eligibility criteria under retained EU law that applied to family members of EEA nationals before January 2021.[12] It means they are assessed under the EEA eligibility rules that applied before January 2021.
Family members of EEA nationals, regardless of their nationality, are eligible if they have pre-settled status and are either a:
family member of an eligible EEA national, for example of an EEA worker or someone with a permanent right to reside
family member with their own permanent right to reside
non-EEA national with a retained right to reside that confers eligibility, for example a family member of an EEA worker who has died
primary carer of a child in education where one of the child's parents is or was an EEA worker (‘Baumbast’ right)
Each right to reside that confers eligibility is subject to separate conditions.
Family members of eligible EEA nationals
A family member with pre-settled status is eligible for homelessness assistance if both conditions are met:[13]
they are classed as a family member of an EEA national under the retained EU law
the EEA national is eligible for assistance
Permanent right to reside
Under retained EU law, permanent right to reside is usually acquired after five years of exercising EU free movement rights in the UK. This could apply, for example, when someone with pre-settled status qualifies for settled status under the EU Settlement Scheme but has not made an application yet.
People with pre-settled status who fail to make a second application to the EU Settlement Scheme after five years of residence in the UK do not lose their rights. They are entitled to a permanent right to reside once they have resided in the UK for the required five-year period. The imposition on them of a mandatory requirement to apply for settled status at the expiry of their pre-settled status has been declared unlawful.[14]
Family members can acquire a permanent right to reside earlier if the EEA national dies, retires or becomes permanently incapacitated.
Family members with a retained right to reside
Under retained EU law, some non-EEA family members of eligible EEA nationals may continue to be eligible even after the EEA person dies, leaves the UK, or if there is a relationship breakdown.
After 31 December 2020, in order to have a retained right to reside following a relationship breakdown, former spouses or civil partners of EEA nationals must show that their former EEA spouse was exercising EU free movement rights up to the date of divorce, rather than up to the date when divorce proceedings started.[15]
Primary carers of children in education
Primary carers do not mirror the rights of eligible EEA nationals in the same way other family members do. Under retained EU law, a person from abroad who is the primary carer of a child in education is eligible for homelessness assistance, provided that one of the child's parents is or was an EEA worker. For an overview of the conditions that have to be met for the primary carer to be eligible, see EEA nationals eligibility for homelessness assistance before January 2021.
Habitual residence test
Pre-settled status holder who are family members of EEA workers and self-employed persons with pre-settled status, including those with retained worker or self-employed status, are exempt from the habitual residence test.[16]
Family members of British and Irish citizens
In certain circumstances family members of British and Irish citizens may be eligible for assistance under retained EU law.
How to show pre-settled status
Pre-settled status is digital only. The applicant does not have a stamp in their passport or a separate document from the Home Office.
The status can be checked electronically using the Gov.uk – View and prove your immigration status service. The applicant must have their mobile phone, access to email, and proof of identity.
When the status is granted, the Home Office sends a confirmation email which can be printed out. No letters are sent to the applicant.
A person with pre-settled status may not be able to prove their status immediately, for example due to fleeing violence and not having access to their personal belongings.
If a person with pre-settled status makes a homeless application, a printed letter or an email from the Home Office should be enough to satisfy the requirement of a reason to believe they qualify for emergency accommodation.
Requirement to notify EU citizens rights court cases
From 1 October 2023 any court proceeding that raise a EU citizens rights issue under the withdrawal agreements must be notified to the Independent Monitoring Authority for the Citizens’ Rights Agreements (IMA). The requirement is that when a person serves a statement of case which raises a citizens rights issue, that person must send a copy of the statement to the IMA at the same time.[17]
IMA investigates breaches of citizens’ rights after Brexit and can look into complaints, launch inquiries, and take or intervene in legal action. There is no sanction for non-compliance but the courts will consider whether orders should be made or steps taken as a result.
Details of how to notify such case can be found on the IMA website
A 'citizens rights issue' is an issue relating to rights arising under Part 2 of the Withdrawal Agreement or Part 2 of the EEA EFTA Separation Agreement.
Immigration advice
Advice about obtaining leave to enter or remain under UK immigration rules is an immigration matter which can only be delivered by an authorised immigration adviser or a qualified solicitor. This includes immigration advice about applying for settled or pre-settled status under the EU Settlement Scheme.
Vulnerable people can get support with their application from a government approved agency.
UKVI Tool: Continue to live in the UK after it leaves the EU is a step-to-step guide to help EEA nationals decide what they should do and when, according to their personal circumstances.
Eligibility rules challenge
In Fratila and Tanase v Secretary of State for Work and Pensions the Supreme Court has held that EEA nationals with pre-settled status cannot rely on Article 18 of the Treaty on the Functioning of the European Union that prohibits discrimination on the grounds of nationality as a way of challenging the rules restricting access to public funds.[18] The Supreme Court referred to a decision of the Court of Justice of the European Union in a similar case.[19] This ruling overturns the original Court of Appeal decision that the eligibility rules amounted to unlawful discrimination under Article 18.
Last updated: 6 October 2023