Right to reside for EEA nationals before January 2021

Different types of right to reside, including the derivative right to reside for primary carers, and the effect on eligibility for homelessness assistance.

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.

Right to reside before 1 January 2021

The EU Citizenship Directive[2] sets out the rights of EU citizens to move and reside freely within the EEA. It was implemented in the UK by the Immigration (European Economic Area) Regulations.[3] The Regulations set out four main categories of different types of right to reside in the UK for EEA nationals and their family members.

For applications made before January 2021, an EEA national's eligibility for homelessness assistance, an allocation of social housing and most means-tested benefits depended on the type of right to reside they had. Some categories of people with a right to reside were specifically excluded from eligibility.

Initial right to reside

Any EEA national and their family members had an initial right to reside in the UK for three months, provided they did not become a burden on the host Member State.

Eligibility for assistance

A person who had no other right to reside apart from the initial right was not eligible for homelessness assistance, an allocation of social housing and most means-tested benefits.[4]

Extended right to reside

An extended right to reside was available to 'qualified' people and their family members for as long as they remained qualified and satisfied all the conditions for lawful residency.[5] Their eligibility for homelessness assistance, an allocation of social housing and most means-tested benefits depended on their circumstances.

A qualified person was a:

  • worker

  • self-employed person

  • jobseeker

  • self-sufficient person

  • student

Eligibility for assistance

Economically active EEA nationals (workers and self employed) and their family members were eligible for assistance.

With some exceptions, the following categories of qualified persons were generally not eligible for assistance:

  • jobseekers

  • students

  • self-sufficient people

Permanent right to reside

A permanent right to reside in the UK could be acquired after:

  • five years of being a qualified person or a family member of a qualified person

  • in certain circumstances, being a former worker or the relative of a former or deceased qualified person

Eligibility for assistance

People with a permanent right to reside were eligible for assistance but could be subject to the habitual residence test depending on how they had acquired their permanent right to reside.

Derivative right to reside – primary carers

A primary carer is a direct relative or legal guardian who has primary responsibility for the care of an EEA national child or dependent adult, or who shares this responsibility equally with another person.[6]

Primary carers of certain EEA nationals, who did not have a more substantive right to reside in the UK, could have a derivative right to reside as:

  • primary carers of children in education ('Baumbast' carers)

  • primary carers (non-EEA nationals only) of dependant British nationals ('Zambrano' carers)

  • primary carers of self-sufficient EEA children ('Chen' carers)

Primary carer of a child in education ('Baumbast' carer)

A child of an EEA national working in the UK had a right to access education in the UK and a derivative right to reside.[7]

A person had a right to reside in the UK as a 'Baumbast' carer, if all the following applied:

  • they were the primary carer of a dependent child

  • the child was in full-time education (excluding nursery education)

  • the child required the primary carer to remain in order to continue their education

  • the child was resident in the UK at some point while their EEA primary carer was a worker here

The primary carer had a derivative right to reside until completion of the child's studies.[8]

There was no requirement for the child to be in education at the same time the EEA primary carer was a worker. The derivative right to reside applied even after the primary carer's departure from the UK or their death, or after they had ceased to work following illness or retirement.[9]

Eligibility for assistance of 'Baumbast' carers

'Baumbast' carers were eligible for assistance. For more information, see Family of workers and self-employed.

Primary carer of a dependent British national ('Zambrano' carer)

A non-EEA national had a derivative right to reside in the UK as a 'Zambrano' carer if all the following applied:[10]

  • they were the primary carer of a dependent British national (a minor or a vulnerable adult)

  • the dependent British national would not be able to reside in the EEA if the primary carer was required to leave because they would be forced to leave with their carer and relocate to the carer's country of origin outside of the EEA

A derivative right to reside arose at the point when the non-EEA national became the primary carer of a dependent British national who would be otherwise compelled to leave the EEA.[11]

Compelled to leave the EEA

In order for the 'Zambrano' derivative right to reside to arise, the dependent British national must have been unable to reside in the EEA if their primary carer was forced to leave the UK.

Primary carers who were EEA nationals themselves could not establish a 'Zambrano' derivative right to reside. If an EEA primary carer of a dependent British national was required to leave the UK, they and the dependent British national would be able to settle in another EEA state (the carer's country of origin within the EEA), therefore the British national would not be compelled to leave the EEA.[12]

The threshold of being compelled to leave was high and the test for compulsion was an objective one focused on the actual facts of each case.[13]

Examples where the threshold could be met included where:

  • a family shared a rare blood group and a blood transfusion might be required

  • an adult with severe autism would find it intolerable for their carer to change

  • there was significant psychological dependence on a specific carer deriving from a psychological condition

  • if the primary carer was required to leave the UK, residential care provided by social services would not be an adequate alternative and would not meet the British citizen’s needs[14]

  • where a British mother indicated she would follow her non-EEA husband, who was their British child’s primary carer, if he was expelled to his non-EEA country of origin, meaning the British child would be forced to leave as well (it was irrelevant whether the mother could or should stay in the UK to look after the child)[15]

Dependent children and dependent adults

EU law differentiated between dependent children and dependent adults. It was recognised that unlike minors, an adult would be, as a general rule, capable of living an independent life apart from members of their family.

Non-EEA primary carers of dependent British adults were able to establish a ‘Zambrano’ derivative right to reside in the UK only in exceptional circumstances, where the dependent British national would as a matter of fact leave the EEA with their non-EEA carer, rather than stay and rely on other forms of support (for example, assistance from social services).[16]

Child's best interest

It was previously thought that developments in EU case law[17] meant that a detailed assessment of the child's best interest would always be the main point when deciding if the child would be compelled to leave the EEA with their non-EEA carer.

The Supreme Court then clarified that the compelled to leave test was often a simple one based on the actual facts in each case.[18] In some cases, local authorities would be required to assess the child's best interests and their personal circumstances, for example if the parents were separated and one of them was an EEA national who was not the child's primary carer. The fact that the EEA parent was able and willing to assume parental responsibility did not necessarily mean that the non-EEA parent was not a 'Zambrano' carer.[19]

A detailed assessment of the child's best interest when deciding if the child would be compelled to leave the EEA would include consideration of all their personal circumstances, including:

  • age

  • physical and emotional development

  • extent of emotional ties to both parents

  • risks which separation from a non-EEA parent might entail

Eligibility for assistance of 'Zambrano' carers

From 8 November 2012, a 'Zambrano' carer is not eligible for homelessness and housing assistance (under either Part 6 or Part 7 of the Housing Act 1996)[20] or for most means-tested benefits.[21]

'Zambrano' carers who are destitute should be assisted by social services.

A 'Zambrano' carer who applied before 8 November 2012 was eligible for homelessness assistance.[22]

Primary carer of a self-sufficient EEA child ('Chen' carer)

A non-EEA national had a derivative right to reside in the UK if they were the primary carer of a dependent EEA national who satisfied all the following:[23]

  • was a minor aged under 18

  • was self sufficient

  • would be unable to remain in the UK if their primary carer was compelled to leave the UK

The Court of Justice of the European Union held that a child who relied on financial resources generated by a parent working without a work permit could be considered self sufficient.[24]

Eligibility for assistance of 'Chen' carers

Normally, applying for homelessness assistance would suggest that the child is no longer self-sufficient and therefore the primary carer is not eligible because they no longer have a derivative right to reside. However, the local authority will have to decide whether a homelessness application would amount to a burden on the state’s social assistance. As such, an applicant could be eligible for assistance, for example, if fleeing violence or becoming homeless due to an emergency such as a flood or fire where they have financial resources but are unable to secure accommodation quickly.

Residence documents

The rights to EU residence documents were described in the Citizenship Directive 2004/38/EC. It was implemented in the UK by the Immigration (European Economic Area) Regulations. In the UK there was no requirement for EEA nationals to hold relevant residence documents.

In the UK residence documents certified, rather than conferred a right to reside on the holder. In the homelessness context, a residence card or certificate may have been useful as evidence of status, but the local authority could not insist on it. The EEA national was still entitled to all the rights derived directly from EU law if they had neither applied for, nor been issued with, residence documents.[25]

Residence documents did not provide conclusive evidence that the holder had a right to reside in the UK. The potential problem for homeless applicants with residence permits, cards or certificates was where the person in possession of the document never satisfied, or no longer satisfied, all the requirements for being a qualified person or family member. In such a situation, a local authority could take the view that a person, on ceasing to be a qualified person, no longer had a right to reside in the UK and had become a person subject to immigration control unlawfully present in the UK.[26]

There could also be cases where an EEA national was lawfully present in the UK but had no right to reside.[27]

Download the Shelter guide How to prove settled status granted under the EU Settlement Scheme for practical information on proving settled status.

Applications for residence documents

From 1 February 2017, applications to the Home Office for residence documents had to be made online or on a prescribed form.[28]

The Home Office had to issue residence documents to EEA nationals and their family members if the conditions were met.

In the case of extended family members, the issue of documentation was at the discretion of the Home Office.

Immigration advice

People in need of specialist advice about their right to reside and applications under the Immigration Rules should be referred to an immigration adviser.

Last updated: 18 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]

    Directive 2004/38/EC.

  • [3]

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

  • [4]

    regs 4(1)(b)(ii) and 6(1)(b)(ii) Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006 SI 2006/1294; Social Security (Persons from Abroad) Amendment Regulations 2006 SI 2006/1026; regs 4(1A) and 6(1A) Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006 SI 2006/1294, as respectively inserted by regs 3(a) and 4(a) Allocation of Housing and Homelessness (Eligibility) (England) (Amendment) (EU Exit) Regulations 2019/861.

  • [5]

    reg 14(1) Immigration (European Economic Area) Regulations 2016 SI 2016/1052, as amended by Immigration (European Economic Area) (Amendment) Regulations 2018 SI 2018/801. See also DMG Memo 15/18; see also AM v SSWP and City and County of Swansea Council [2019] UKUT 361 (AAC).

  • [6]

    reg 16(8) Immigration (European Economic Area) Regulations 2016 SI 2016/1052, as amended by Immigration (European Economic Area) (Amendment) Regulations 2018 SI 2018/801; Saeed v Secretary of State for the Home Department [2018] EWHC 1707 (Admin).

  • [7]

    Article 10 EU Regulation 492/2011; reg 16(3) Immigration (European Economic Area) Regulations 2016 SI 2016/1052.

  • [8]

    reg 16(4) Immigration (European Economic Area) Regulations 2016 SI 2016/1052

  • [9]

    Harrow LBC v Ibrahim [2010] ECJ C-310/38; Texeira v Lambeth LBC [2010] ECJ C-480/08.

  • [10]

    Article 20 Treaty on the Functioning of the European Union (TFEU); reg 16(5) and (8) Immigration (European Economic Area) Regulations 2016 SI 2016/1052, as amended by Immigration (European Economic Area) (Amendment) Regulations 2018 SI 2018/801; see also DMG Memo 15/18; Ruiz Zambrano (European Citizenship) [2011] EUECJ C-34/09; DM v Secretary of State for Work and Pensions (PIP) [2019] UKUT 26 (AAC); see also McCarthy (European Citizenship) [2011] EUECJ C-434/09.

  • [11]

    Sanneh v Secretary of State for Work and Pensions and Others [2015] EWCA Civ 49.

  • [12]

    Dereci & Ors (European citizenship) [2011] EUECJ C-256/11; see also AM v SSWP and City and County of Swansea Council [2019] UKUT 361 (AAC).

  • [13]

    Patel and Shah v Secretary of State for the Home Department [2019] UKSC 59; MS (Malaysia) v Secretary of State for the Home Department [2019] EWCA Civ 580;  (on the application of Harrison) v Secretary of State for the Home Department [2012] EWCA Civ 1736.

  • [14]

    MS (Malaysia) v Secretary of State for the Home Department [2019] EWCA Civ 580.

  • [15]

    Patel and Shah v Secretary of State for the Home Department [2019] UKSC 59

  • [16]

    KA v Belgium CJEU Case C-82/16; Patel and Shah v Secretary of State for the Home Department [2019] UKSC 59.

  • [17]

    Chavez-Vilchez and Others v Raad van bestuur van de Sociale verzekeringsbank and Others CJEU [2017] C-133/15.

  • [18]

    Patel and Shah v Secretary of State for the Home Department [2019] UKSC 59.

  • [19]

    Chavez-Vilchez and Others v Raad van bestuur van de Sociale verzekeringsbank and Others CJEU [2017] C-133/15; see also Patel and Shah v Secretary of State for the Home Department [2019] UKSC 59; see also Hines v Lambeth LBC [2014] EWCA Civ 660 which needs to be examined in light of the (later) CJEU (C-133/15) and UKSC ([2019] UKSC 59) decisions.

  • [20]

    Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006 SI 2006/1294, as amended by reg 2 Allocation of Housing and Homelessness (Eligibility) (England) (Amendment) Regulations 2012 SI 2012/2588.

  • [21]

    Social Security (Habitual Residence)(Amendment) Regulations 2012 SI 2012/2587.

  • [22]

    Pryce v Southwark LBC and Secretary of State for the Home Department (Intervener) [2012] EWCA Civ 1572.

  • [23]

    reg 16(2) Immigration (European Economic Area) Regulations 2016 SI 2016/1052; Chen (Free movement of persons) [2004] EUECJ C-200/02.

  • [24]

    Ermira Bajratari v Secretary of State for the Home Department CJEU C-93/18.

  • [25]

    Procureur du Roi v Royer Case 48/75 [1976] 2 CMLR 619.

  • [26]

    See for example Secretary of State for Work and Pensions v Dias (Case C325-09) [2011] 3 CMLR 40; Secretary of State for the Home Department v Ojo [2015] EWCA Civ 1301; Ahmad v Secretary of State for the Home Department [2014] EWCA Civ 988; MD v Secretary of State for Work and Pensions (SPC) (Residence and presence conditions: right to reside) [2016] UKUT 319 (AAC).

  • [27]

    Mirga v Secretary of State for Work and Pensions : Samin v Westminster City Council [2016] UKSC 1; Kaczmarek v Secretary of State for Work and Pensions [2008] EWCA Civ 1310; MD v Secretary of State for Work and Pensions (SPC) (Residence and presence conditions: right to reside) [2016] UKUT 319 (AAC).

  • [28]

    reg 21 Immigration (European Economic Area) Regulations 2016 SI 2016/1052, as amended by Immigration (European Economic Area) (Amendment) Regulations 2017 SI 2017/1 and by Immigration (European Economic Area) (Amendment) Regulations 2018 SI 2018/801.