Investigations into eligibility of EEA nationals before Brexit

Before 1 January 2021 these rules applied to EEA nationals and their family members who were exercising EU free movement rights in the UK.

After 1 January 2021 these eligibility rules continue to apply to EEA nationals and their family members who have either:[1]

• pre-settled status granted under the EU Settlement Scheme

• temporary protection, until they receive a decision on their application to the EU Settlement Scheme

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.

EEA nationals had a right to reside because they were in one of the following categories of people eligible for homelessness assistance and exempt from the habitual residence test:[2]

• workers

• self-employed persons

• retired or incapacitated workers

• a family member of someone in one of the categories above. In some cases the family member could retain eligibility even after the EEA worker or self-employed person left the UK or died, for example in cases where there was a child in education, or where a relationship broke down

• a person with a permanent right to reside in the UK, if that right arose following retirement, or death of a worker or self-employed person. Note that a person with a permanent right to reside based on five years' residence in the UK was subject to the habitual residence test

• a person who had been deported to the UK from abroad

The following EEA nationals, and their family members, were not eligible for homelessness assistance:

• people with a derivative right to reside under Article 20 of the Treaty on the Functioning of the European Union (ie a 'Zambrano' right) unless their application for homelessness assistance was made before 8 November 2012[3]

• people whose only right to reside was derived from their status as a jobseeker (ie they had never worked in the UK)[4]

• people whose only right to reside was the initial three months right of residence given to all EEA nationals[5]

The investigations that a local authority had to carry out to assess if a homeless applicant was eligible for assistance were the same regardless of whether the applicant was an EEA national or not.

There was substantial statutory guidance on how investigations should be carried out. The content and footnotes here reflect the law and statutory guidance as in force before January 2021.

Duty to make inquiries

When a local authority has reason to believe that an applicant is or may be homeless, it must make inquiries in order to be satisfied whether that applicant is eligible for assistance.[6]

In order to establish the eligibility of a homeless applicant, the local authority may contact UK Visas and Immigration (UKVI), which should provide the authority with the information necessary for it to make its decision.[7]

Statutory guidance

A local authority must be satisfied that a person is eligible before any accommodation duty is owed. The Homelessness Code of Guidance reminds authorities that the provisions on eligibility are complex, and that they should have in procedures in place to carry out appropriate checks, with staff appropriately trained in homelessness law as well as equality law. Staff should deal sensitively with applicants.[8]

If there is any uncertainty about the applicant's status, the local authority may contact the Home Office, and in some circumstances the authority has a duty to do this.[9]

This contact may delay a UKVI application. Before giving consent for the local authority to contact UKVI, a person applying as homeless should ask their immigration adviser for advice.

Equality law

Procedures for assessing eligibility for assistance under the homelessness legislation should reflect the public sector equality duty on all local authorities. They should have due regard to the need to:

• eliminate any form of unlawful discrimination

• advance equality of opportunity between people who share a relevant protected characteristic and people who do not

• foster good relations between people who share a protected characteristic and people who do not

In addition, as a provider of services, an authority must not discriminate unlawfully.

Mechanisms for screening applicants for eligibility should be built into the standard questions asked to any applicant who approaches the authority for housing assistance. The Code of Guidance states that housing authorities need to ensure that staff are appropriately trained in their duties and responsibilities under the Equality legislation.[10]