People with EU temporary protection eligibility for homeless assistance

Where a person has not yet been granted settled or pre-settled status under the EU Settlement Scheme, they may qualify for temporary protection.

Temporary protection safeguards the rights of people who applied to the EU Settlement Scheme before the 30 June 2021 but have not received a decision yet.[1]

Temporary protection continues until the outcome of the application, including the outcome of an appeal, even if this is after 30 June 2021.[2]

For the purpose of assessing eligibility for homelessness assistance, the term EEA nationals refers to nationals of the EU, Norway, Iceland, Liechtenstein and Switzerland.[3]

Temporary protection applies where an EEA national:[4]

• has not yet received settled or pre-settled status under the EU settlement scheme

• was lawfully resident in the UK in accordance with EU law on 31 December 2020

A family member, regardless of nationality, was lawfully resident on 31 December 2020 if they met the conditions for qualifying as a family member under retained EU law.

Temporary protection does not make a person automatically eligible for homelessness assistance. EEA nationals and their family members with temporary protection are eligible if they meet additional eligibility conditions in retained EU law.

On 6 August 2021 the Home Office announced that people who apply to the EU Settlement Scheme after the 30 June 2021 deadline will have their rights protected. The press release states that the government is working to implement this approach. The Code of Guidance has been updated to say that late applications to the EU Settlement Scheme will be accepted where there are reasonable grounds for missing the 30 June 2021 deadline. [5]

To have temporary protection, EEA nationals and their family members must have been resident in the UK in accordance with EU law on 31 December 2020.[6] There is no requirement that the right to reside on 31 December 2020 conferred eligibility.

An EEA national was lawfully resident on 31 December 2020 if they had one of the following rights to reside:[7]

• initial, for three months

• extended, as a worker, a self-employed or self-sufficient person, a student or a jobseeker

• permanent

• derived

• retained

Each of these rights to reside is subject to specific conditions.

A family member who arrives in the UK after 31 December 2020 to join an EEA national already in the UK is entitled to temporary protection as long as:[8]

• they satisfy the conditions of being classed as a family member under EU law

• the EEA national they are joining was lawfully resident in the UK on 31 December 2020

The Homelessness Code of Guidance specifies that where the family relationship existed on 31 December 2020, family members can join EEA nationals after this date and have three months from arrival in the UK to apply to the EU Settlement Scheme.[9]

If the person was not physically present in the UK on 31 December 2020, they are still treated as lawfully resident if:[10]

• the period of absence does not break continuity of residence under EU law

• they had previously lost the right of permanent residence in the UK by being away from the UK for 2 years but on 31 December 2020 the period of absence had not exceeded five years

Absence from the UK does not break the continuity of residence under EU law if it does not exceed the time limits specified in regulation 3 of the Immigration EEA Regulations.[11]

EEA nationals with temporary protection are not subject to immigration control when assessing their eligibility for homelessness assistance.[12] They should be assessed in accordance with regulation 6 of the Eligibility Regulations.[13]

The current Home Office guidance for local authorities clarifies that as long as the person applied to the EU Settlement Scheme by the 30 June 2021 deadline, their existing rights are protected until the outcome of the application to Scheme, including any appeal, is known.

People with temporary protection must meet the eligibility criteria under retained EU law that applied to EEA nationals before January 2021 to qualify for homelessness assistance.[14]

Under retained EU law, an EEA national with temporary protection is eligible for homelessness assistance if they were lawfully resident in the UK on 31 December 2020 and are treated as eligible under retained EU law at the time of their homeless application.

An EEA national is treated as eligible under retained EU law if at the time of making a homeless application they are either 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 of these rights to reside is subject to specific conditions.

Workers and self-employed EEA nationals 

Under retained EU law, economically active EEA nationals with temporary protection are eligible for homelessness assistance as long as their 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.

From 1 January 2021, 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.[15] The other conditions for retaining the status of a worker in retained EU law continue to apply.

Permanent right to reside 

Under retained EU law, an EEA national with a permanent right to reside will be eligible for homeless assistance.  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 temporary protection qualifies for settled status under the EU Settlement Scheme but has not made an application yet.

Permanent right to reside can be acquired before five years if the 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 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.[16]

Regardless of their nationality, EEA nationals' family members who have temporary protection are not subject to immigration control when assessing their eligibility for homelessness assistance.[17] They should be assessed in accordance with regulation 6 of the Eligibility Regulations.[18]

The current Home Office guidance for local authorities clarifies that as long as the person applied to the EU Settlement Scheme by the 30 June 2021 deadline, their existing rights are protected until the outcome of the application to Scheme, including any appeal, is known.

Family members with temporary protection must meet the eligibility criteria under retained EU law that applied to family members of EEA nationals before January 2021 to qualify for homelessness assistance in their own right.[19]

Family members of EEA nationals, regardless of their nationality, are eligible if they meet the conditions for being treated as a:

• family member of an eligible EEA national with temporary protection or pre-settled status

• family member with their own permanent right to reside

• non-EEA national with a retained right to reside that confers eligibility

• primary carer of a child in education where one of the child's parents is or was an EEA worker (‘Baumbast’ right)

Each of these rights to reside is subject to specific conditions.

Family members of eligible EEA nationals

Under retained EU law, family members of EEA nationals can mirror the rights of the EEA person as long as they meet the criteria for being classed as a family member.

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 temporary protection qualifies for settled status under the EU settlement scheme but has not made an application yet.

Family members can acquire permanent right to reside before five years 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 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, former spouses or civil partners of EEA nationals have to 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.[20]

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.

In certain circumstances persons from abroad who are family members of British and Irish citizens may be eligible for assistance under retained EU law.

People do not need documentation from the Home Office to prove they have temporary protection status.

In order to establish whether temporary protection applies, a local authority should make enquiries into whether the applicant meets the relevant conditions.

Extended family members, for example unmarried partners, require documentation from the Home Office confirming their status.[21]

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.[22]

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.

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 one of government approved agencies.

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.