Eligibility of EEA retired or incapacitated workers for homelessness assistance before January 2021

The right to reside and the eligibility for homelessness assistance of retired or permanently incapacitated workers and self-employed people.

This content applies to England

Eligibility rules before and after January 2021

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

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

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.

Retired workers and self-employed people

Retired EEA workers and self-employed people with a permanent right to reside were eligible for homelessness assistance.[2]

EEA nationals acquired a permanent right of residence if, prior to reaching pension age or taking early retirement while living in the UK, they:[3]

  • worked or were self-employed in the UK for at least 12 months (or worked for at least 12 months in another EEA state but returned as a rule at least once a week to their home in the UK during that time[4])

  • resided continuously in the UK for at least three years (periods of working or being self-employed in another EEA state counted towards the three years, as long as the worker or self employed person returned to the UK once a week)

Family members of EEA workers and self-employed people who ceased activity in accordance with these conditions acquired a permanent right to reside in the UK if they enjoyed a right to reside and were family members of the workers or self-employed people at the point they ceased activity.[5]

EEA spouses or civil partners of British citizens

The conditions of the minimum length of residence and employment did not apply to EEA nationals who were married to or in a civil partnership with a British citizen.[6]

Spouses and civil partners of British citizens in these circumstances could acquire a permanent right to reside regardless of how long they worked or lived in the UK prior to ceasing work.

Permanently incapacitated workers and self-employed

Permanently incapacitated workers and self-employed people with a permanent right of residence were eligible for homelessness assistance.[7]

EEA workers and self-employed people who had resided in the UK for more than two years immediately before stopping work or self-employment due to permanent incapacity acquired a right of permanent residence.[8] Residence in another EEA state qualified so long as the EEA national returned to their home in the UK 'as a rule' at least once a week.

The two-year residence requirement did not apply if the:

  • reason for permanent incapacity was an accident at work or an occupational disease that would entitle the sufferer to an occupational pension[9]

  • EEA national was the spouse or civil partner of a British national[10]

Family members of EEA workers and self-employed people who ceased activity in accordance with these conditions acquired a permanent right to reside in the UK if they enjoyed a right to reside and were family members of the workers or self-employed people at the point they ceased activity.[11]

Temporary or permanent incapacity

There was no prescribed length of time after which incapacity could be considered permanent.

When assessing whether incapacity was permanent or temporary, the focus of the investigations had to be on a realistic prospect of the EEA national returning to work within a foreseeable future – permanent incapacity means that a person was unlikely to work in the foreseeable future.[12] In one case, it was held that it was possible for incapacity to be temporary at one point in time and permanent later.[13]

Factual rather than legal residence

Unlike in the case of a permanent right to reside acquired through five years of residence, factual residence was sufficient for an EEA worker or self-employed person to acquire a permanent right to reside following retirement or permanent incapacity.[14]

Periods of economic inactivity

Periods of temporary economic inactivity had to be treated as periods of activity as a worker or self-employed person, if:[15]

  • the inactivity was due to illness or accident

  • the inactivity was for reasons not of the person's own making

  • in the case of a worker, involuntary unemployment was duly recorded by the relevant employment office

An EEA worker or self-employed person unable to work as a result of illness or accident was temporarily unable to work if their incapacity to work was not permanent.[16] Time spent by an EEA worker in a secure psychiatric hospital due to a hospital order made under the Mental Health Act 1983 was inactivity due to illness (a psychiatric disorder) and counted as a period of lawful residence for the purpose of acquiring permanent residence.[17]

Permanent right to reside under more than one provision

When an EEA worker or self-employed person was entitled to a permanent right to reside in the UK under more than one legal provision, for example as a permanently incapacitated worker as well as for having completed a lawful period of five years' residence, they could rely on whichever was the most favourable provision to them.

In one case, the Court of Appeal held that the position of an EEA national who had acquired a right of permanent residence as a result of permanent incapacity was not affected by his subsequent completion of a five-year period of continuous residence. His non-EEA national wife therefore did not have to fulfil the more onerous requirement of residing with the EEA national for five years in accordance with the Immigration (EEA) Regulations in order to acquire her own permanent right to reside.[18]

Last updated: 22 February 2021

Footnotes

  • [1]

    see the The Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations 2020 SI 2020/1309 and The Citizens’ Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020 SI 2020/1209.

  • [2]

    reg 6(2)(e) Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006 SI 2006/1294.

  • [3]

    regs 5(2) and 15(1)(c) Immigration (European Economic Area) Regulations 2016 SI 2016/1052.

  • [4]

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

  • [5]

    reg 15(1)(d) Immigration (European Economic Area) Regulations 2016 SI 2016/1052.

  • [6]

    para 2, Article 17(2) Directive 2004/38/EC; reg 5(6) Immigration (European Economic Area) Regulations 2016 SI 2016/1052.

  • [7]

    reg 6(2)(e) Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006 SI 2006/1294.

  • [8]

    regs 5(3)-(5) and 15(1)(c) Immigration (European Economic Area) Regulations 2016 SI 2016/1052.

  • [9]

    Article 17(1)(b) Directive 2004/38/EC; reg 5(3)(b) Immigration (European Economic Area) Regulations 2016 SI 2016/1052.

  • [10]

    Article 17(2) Directive 2004/38/EC; reg 5(6) Immigration (European Economic Area) Regulations 2016 SI 2016/1052.

  • [11]

    reg 15(1)(d) Immigration (European Economic Area) Regulations 2016 SI 2016/1052.

  • [12]

    Prefeta (Accession - Freedom of movement for persons - Judgment) [2018] EUECJ C-618/16; Konodyba v Kensington and Chelsea RLBC [2012] EWCA Civ 982; Samin v Westminster CC [2012] EWCA Civ 1468; BL v SSWP (ESA) [2019] UKUT 364 (AAC).

  • [13]

    SSWP v LM [2017] UKUT 485.

  • [14]

    Secretary of State for Work and Pensions v Gubeladze [2019] UKSC 31; Secretary of State for Work and Pensions v NZ (ESA) (Final decision) [2019] UKUT 250 (AAC).

  • [15]

    reg 5(7) Immigration (European Economic Area) Regulations 2016 SI 2016/1052.

  • [16]

    De Brito v Secretary of State for the Home Department [2012] EWCA Civ 709; FMB (EEA Regulations - reg 6(2)(a) - temporarily unable to work) Uganda [2010] UKUT 447 (IAC).

  • [17]

    JO (Qualified person - hospital order - effect) Slovakia [2012] UKUT 237 (IAC).

  • [18]

    RM (Zimbabwe) v Secretary of State for the Home Department [2013] EWCA Civ 775.