Investigations into eligibility of EEA nationals before January 2021

The duty of local authorities to make enquiries into the eligibility of EEA nationals for homelessness assistance in the UK before 1 January 2021.

This content applies to England

Eligibility rules before and after 1 January 2021

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]

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.

Eligible persons

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

Ineligible persons

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]

Investigations into eligibility

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]

Last updated: 16 March 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)(d) Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006 SI 2006/1294. For the purpose of reg 6(2)(d), the definition of family member excluded extended family members - see reg 2(3) SI 2006/1294.

  • [3]

    reg 6(1)(b)(iii) or (iv) Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006 SI 2006/1294.

  • [4]

    reg 6(1)(b)(i) Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006 SI 2006/1294.

  • [5]

    reg 6(1)(b)(ii) Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006 SI 2006/1294.

  • [6]

    s.184(1)(a) Housing Act 1996.

  • [7]

    s.187 Housing Act 1996.

  • [8]

    para 7.3 and 7.4 Homelessness Code of Guidance, MHCLG, Feb 2018.

  • [9]

    paras 7.11 and 7.23 Homelessness Code of Guidance, MHCLG, Feb 2018.

  • [10]

    para 9.2 Homelessness Code of Guidance, MHCLG, Feb 2018.