European Union law

An outline of European Union (EU) law relating to immigration and eligibility for homelessness assistance before Brexit.

This content applies to England

Information on pre-Brexit rules

These are the eligibility rules for EEA nationals resident in the UK before January 2021. The information and footnotes are kept for reference only and will not be updated.

EEA nationals moving to the UK from 1 January 2021 are subject to new eligibility rules.

Brexit background

The UK ceased to be a member of the European Union (EU) at 11pm on 31 January 2020, subject to saving and transitional provisions by which the legal framework applicable to European Economic Area (EEA) nationals under the right of free movement within the EU continued to apply. The transition period ended at 11pm on 31 December 2020.[1]

The Immigration (European Economic Area) Regulations 2016 were revoked but they continue to apply, as in force on exit day, during a 'grace period' until 30 June 2021 and beyond, mainly to establish the rights of EEA nationals with pre-settled status and those with temporary protection.[2]

EU and EEA countries

When the UK left the EU, the following countries were Member States of the EU:

  • Austria

  • Belgium

  • Cyprus

  • Denmark

  • Finland

  • France

  • Germany

  • Greece

  • Republic of Ireland

  • Italy

  • Luxembourg

  • Malta

  • Netherlands

  • Portugal

  • Spain

  • Sweden

  • Czech Republic

  • Estonia

  • Hungary

  • Latvia

  • Lithuania

  • Poland

  • Slovakia

  • Slovenia

  • Bulgaria

  • Romania

  • Croatia

Citizens of countries that joined the EU between 2004 and 2013 were originally subject to certain restrictions and special rules during the accession period. They gained the same rights of residence as other EEA nationals on:

  • 1 May 2009 – citizens of Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia and Slovenia (A8 nationals)

  • 1 January 2014 – citizens of Bulgaria and Romania (A2 nationals)

  • 1 July 2018 – citizens of the Republic of Croatia.

Iceland, Norway and Liechtenstein were only members of the EEA and their citizens had same rights as EU nationals.

Switzerland had an Association Agreement with the EU.

Difference between EEA and EU nationals

In most cases, it did not matter whether the applicant was a EU national or a EEA national.[3]

Even though nationals of Iceland, Norway and Liechtenstein were not EU citizens as defined by Article 20 of the Treaty on the Functioning of the European Union (TFEU) and did not have the general right of free movement provided to EU citizens under Article 21 TFEU, they could rely on the secondary legislation, including the EU/EEC Regulations and Directives. The distinction between EU and EEA nationals was less significant in EU law and the Immigration (European Economic Area) Regulations afforded the same rights of residence to citizens of EU countries, EEA countries and Switzerland.[4]

Sources of EU law

While it was Member State of the EU, the UK was required to give effect to the rights enshrined in EU Treaties, Regulations and Directives.[5]

EU law, for homelessness purposes, had three primary sources: EU Treaties, EU Regulations and EU Directives.

EU Treaties establish general fundamental rights and freedoms that require subordinated legislation specifying the details and are binding on the Member States only with regard to the broader objectives. Treaties also enshrine broad concepts of non-discrimination and of respect for fundamental rights which includes notions of equality, dignity and solidarity.[6]

EU Regulations are binding in their entirety and take direct effect in each Member State, which means that they immediately become part of domestic law.

EU Directives are binding as to the result to be achieved and require Member States to issue domestic regulations to implement them.

EU law developed from the original Treaties establishing the European Community and the European Union. Their objects and aims developed over the years and include the:

  • promotion of economic and social cohesion through the establishment of an area without frontiers

  • gradual raising of standards of living for EU nationals

  • principle of non-discrimination on the grounds of nationality

  • introduction of the concept of EU citizenship

There are four fundamental freedoms enshrined in EU:

  • free movement of workers

  • free movement of goods

  • free movement of capital

  • freedom of establishment and provision of services

Since the concept of EU citizenship and 'genuine enjoyment of the substance of the rights attached to the status of EU citizen' was introduced in EU law by the Treaty of Maastricht, the right for EU citizens to move and reside freely within the territory of the EU is a fundamental objective of EU law.[7]

Besides the EU Treaties, there are other sources of EU law such as:

  • the Charter of Fundamental Rights of the EU

  • the European Convention for the Protection of Human Rights and Fundamental Freedoms

  • other international legal instruments ratified by the Member States which are included in the general principles of law enforceable by the European Court of Justice (ECJ).

Interpretation of EU law

EU law is to be interpreted 'purposively'. In order to understand a piece of EU legislation, it is first necessary to look at its objective.

The principle of 'proportionality' is enshrined in EU law. It can be used to challenge the legality of an individual Member State's action falling within the competence of EU law.

EU law must also be interpreted in accordance with what are termed 'fundamental rights'. These include not just the European Convention on Human Rights, but also other international Treaties and Conventions, such as the UN Convention on the Rights of the Child, which the European Court of Justice can use as an aid to interpreting a disputed national measure.

EU law is ultimately interpreted, and its scope determined, by the European Court of Justice.[8]

Homelessness assistance: EU law and UK law

While the UK was member of the EU, EU law could take priority over incompatible UK law.

EU case law established that if UK law, whether in the form of an Act or regulations, conflicts with or is inconsistent with EU law, then the UK law must be disapplied.[9] As an EU member, the UK was required to give effect to the free movement rights provided by EU Treaties.

EU law regarding the eligibility for homelessness assistance was either directly applicable or of direct effect. This means that EU nationals can rely on EU law when exercising EU law rights in the UK. However, in order to rely on EU law, the person must be within both the personal and material scope of EU law. The UK must protect and uphold EU national's rights deriving from EU law.[10]

The UK rules for EEA nationals are not the source of the rights of EEA 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 relevant Articles of the consolidated Treaty on the Functioning of the European Union (TFEU),[11] formerly the Treaty establishing the European Economic Community (TEC),[12] in respect of eligibility for homelessness assistance are:

  • Article 18 TFEU (formerly Article 12 TEC) – prohibition of discrimination on the grounds of nationality

  • Article 20 TFEU (formerly Article 17 TEC) – citizenship of the EU

  • Article 21 TFEU (formerly Article 18 TEC) – right to freely move and reside within the territory of the EU

  • Article 45 TFEU (formerly Article 39 TEC) – freedom of movement for workers

  • Articles 49, 56 and 57 TFEU (formerly Articles 43, 49 and 50 TEC respectively) – freedom to establish and provide services, including the right to pursue activities as a self-employed person

EU/EC Regulations

The relevant EU Regulations are:

  • Regulation (European Economic Community) 1612/68 – freedom of movement for workers, families and equality of treatment (referred to hereafter as the Workers' Regulation). Title 2 to the Regulation provides that workers are entitled to the same tax and social advantages as nationals of the host state. The introduction to the Regulation specifically includes housing assistance. This Regulation has been amended by the EC Directive 2004/38/EC (the Citizenship Directive) which extends the definition of family member (see Citizenship Directive below).

  • Regulation (European Economic Community) 1251/70 – right of workers to remain in a Member State after having been employed in that state. The Regulation is similar to the Workers' Regulation above and is replicated in the Citizenship Directive.

The Citizenship Directive

Directive 2004/38/EC allows citizens of the EU and their family members to move and reside freely within the territory of the Member States.[13]

The Citizenship Directive introduced new rights as well as consolidated and repealed previous Directives covering the rights of self-employed people, retired people, former workers and self-employed people who are permanently or temporarily incapacitated, self-sufficient people, and recipients of services. It also governs rights-of-entry documentation and temporary and permanent residence in the UK.

The Directive was implemented (ie given effect) in the UK by the Immigration (European Economic Area) Regulations.[14] Although the Citizenship Directive strictly applies to EU nationals only, the UK Regulations also cover EEA and Swiss nationals.

The Immigration (EEA) Regulations

The Immigration (European Economic Area) Regulations incorporated EU free movement rights in UK law.[15]

These Regulations provided that anyone who was admitted to, or acquired a right to reside in the UK under the Regulations did not require leave to remain under the Immigration Act 1971.[16] These Regulations implement the Citizenship Directive.[17]

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 provided that EEA nationals who satisfied the definitions of jobseeker, worker, self-employed, self-sufficient person, or a student, and their family members, were to be treated as 'qualified persons'.[18]

Where the Immigration (EEA) Regulations did not give full effect to the Citizenship Directive in UK law, it could be argued that homeless applicants could bring legal challenges based on the Directive and EU law directly, rather than the UK Regulations.

The effects of the Citizenship Directive and the Immigration (EEA) Regulations included:

  • a right to reside for three months' residence in any EU country for an EU national and their family member(s), even if they were not exercising a Treaty right, eg as a worker.[19] There was no right to social or housing assistance during this period, as the Directive allowed for this to be excluded. The Allocation of Housing and Homelessness (Eligibility) (England) Regulations specifically excluded 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.[20] The Allocation of Housing and Homelessness (Eligibility) (England) Regulations specifically excluded from eligibility those whose only right to reside was as a jobseeker or the family member of a jobseeker

  • a definition of worker and self-employed person to include those who were temporarily or permanently sick, or those who had lost their jobs but were looking for work in certain circumstances[21]

  • a revised definition of family member to include registered civil partners[22], and extended family members[23]

  • revised documentation, eg residence documentation[24]

  • a right of permanent residence after five years' exercising the right to reside in the UK.[25]

The Allocation and Homelessness Regulations

The Allocation of Housing and Homelessness (Eligibility) (England) Regulations[26] (introduced on 1 June 2006) made changes to eligibility for homelessness  assistance and allocations of social housing for EEA nationals and their family members to reflect the changes introduced by the Citizenship Directive. These Regulations were more restrictive than both the Directive and the Immigration (EEA) Regulations, eg in relation to the definition of family member.

Last updated: 8 February 2021

Footnotes

  • [1]

    ss.1A-8 European Union (Withdrawal) Act 2018, as amended by ss.1-4 European Union (Withdrawal Agreement) Act 2020; for the definition of 'exit day' see s.20 European Union (Withdrawal) Act 2018, as amended.

  • [2]

    Paragraph 2(2) Schedule 1, The Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020; Reg 3 and 11 The Citizens’ Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020 2020 SI 2020/1209.

  • [3]

    The EU and the EEA remain distinct legal entities. EEA states are party to the multilateral Agreement on the European Economic Area (EEA) signed at Oporto on 2 May 1992.

  • [4]

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

  • [5]

    The rights of free movement contained in the Treaty of Rome were incorporated into UK law by s.7(1) of the Immigration Act 1988. By s.7(1) a person shall not under the principal Act (the Immigration Act 1971) require leave to enter or remain in the UK 'in any case in which he is entitled to do so by virtue of an enforceable Community right or of any provision made under s.2(2) of the European Communities Act 1972'.

  • [6]

    Grzelczyk v Centre Public d'Aide Sociale , Case 184/99, [2001] ECR I-6193, [2003] All ER(EC) 385.

  • [7]

    Article 20 Treaty on the Functioning of the European Union (TFEU); Baumbast v Secretary of State for the Home Department, Case 413/99, [2002] ECR I-7091; D'Hoop v Office National de L'emploi, Case 224/98, [2002] ECR I-6191.

  • [8]

    The case law of the European Court of Justice is binding on all UK courts/tribunals under s.3(1) of the European Communities Act 1972.

  • [9]

    Costa v ENEL, Case 6/64, [1964] ECR 585.

  • [10]

    Van Gend en Loos v Netherlands Inland Revenue Administration, Case 26/62, [1963] ECR 1, [1963] CMLR 105.

  • [11]

    Treaty of Maastricht, as amended by the Treaties of Amsterdam, Nice and Lisbon.

  • [12]

    Treaty of Rome.

  • [13]

    Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) no.1612/68, repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC,75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC.

  • [14]

    Immigration (European Economic Area) Regulations 2016 SI 2016/1052; prior to 1 February 2017, Immigration (European Economic Area) Regulations 2006 SI 2006/1003, as amended.

  • [15]

    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.

  • [16]

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

  • [17]

    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.

  • [18]

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

  • [19]

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

  • [20]

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

  • [21]

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

  • [22]

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

  • [23]

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

  • [24]

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

  • [25]

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

  • [26]

    Allocation of Housing and Homelessness (Eligibility) Regulations 2006 SI 2006/1294.