People with EU pre-settled status eligibility for homeless assistance

The eligibility rules for applying for homeless assistance for EEA nationals and their family members who have been granted pre-settled status under the EU Settlement Scheme.

This content applies to England

What is pre-settled status?

Pre-settled status is a form of limited leave to remain in the UK granted to EEA nationals and their family members under the EU Settlement Scheme.

People with pre-settled status are entitled to:

  • remain in the UK after 30 June 2021

  • apply for settled status once they have lived in the UK continuously for five years

Pre-settled status does not automatically entitle people to public funds, including homelessness assistance. Homeless applicants with pre-settled status are eligible if they meet additional conditions.

People with pre-settled status are referred to as the 'post-transition period group' in the relevant regulations.[1]

For the purpose of assessing eligibility for homelessness assistance, the term ‘EEA nationals’ refers to nationals of the EU, Norway, Iceland, Liechtenstein and Switzerland.[2]

Additional requirements for EEA nationals with pre-settled status

EEA nationals with pre-settled status are not subject to immigration control when their eligibility for homelessness assistance is assessed.[3] They should be assessed in accordance with regulation 6 of the Eligibility Regulations.[4]

People with pre-settled status must meet the eligibility criteria under retained EU law that applied to EEA nationals before January 2021 to qualify for homelessness assistance.[5]

Under retained EU law, EEA nationals are eligible if, at the time of application, they meet the conditions for being treated as a:

  • worker or self-employed person

  • person with permanent right to reside

  • primary carer of a child in education where one of the child's parents is or was an EEA worker (‘Baumbast’ right)

Each right to reside that confers eligibility is subject to separate conditions.

Workers and self-employed EEA nationals

Under retained EU law, economically active EEA nationals with pre-settled status are eligible for homelessness assistance as long as work or self-employment is 'genuine and effective'. In certain circumstances workers and self-employed people who are not economically active at the time of their homeless application may continue to be eligible for assistance.

After 31 December 2020, previously economically active EEA workers and self-employed persons no longer have to show that they have a genuine chance of finding another job in order to retain their eligible status.[6] The other conditions for retaining the status of a worker in retained EU law continue to apply.[7]

Permanent right to reside

Under retained EU law, permanent right to reside is usually acquired after five years of exercising EU free movement rights in the UK. This could apply, for example, when someone with pre-settled status qualifies for settled status under the EU Settlement Scheme but has not made an application yet.

It can be acquired earlier if an economically active EEA national retires or becomes permanently incapacitated.

Primary carers of children in education

Under retained EU law, a person from abroad who is the primary carer of a child in education is eligible for homelessness assistance, provided that one of the child's parents is or was an EEA worker. This includes a situation where the primary carer is a former EEA worker themselves. For an overview of the conditions that have to be met for the primary carer to be eligible, see EEA nationals eligibility for homelessness assistance before January 2021.

Habitual residence test

EEA workers and self-employed persons with pre-settled status, including those with retained worker or self-employed status, are exempt from the habitual residence test.[8]

Additional requirements for family members with pre-settled status

Regardless of their nationality, EEA nationals' family members who have pre-settled status are not subject to immigration control when their eligibility for homelessness assistance is assessed.[9] They should be assessed in accordance with regulation 6 of the Eligibility Regulations.[10]

Family members with pre-settled status must meet the eligibility criteria under retained EU law that applied to family members of EEA nationals before January 2021 to qualify for homelessness assistance.[11] It means they are assessed under the EEA eligibility rules that applied before January 2021.

Family members of EEA nationals, regardless of their nationality, are eligible if they have pre-settled status and are either a:

  • family member of an eligible EEA national, for example of an EEA worker or someone with a permanent right to reside

  • family member with their own permanent right to reside

  • non-EEA national with a retained right to reside that confers eligibility, for example a family member of an EEA worker who has died

  • primary carer of a child in education where one of the child's parents is or was an EEA worker (‘Baumbast’ right)

Each right to reside that confers eligibility is subject to separate conditions.

Family members of eligible EEA nationals

Under retained EU law, family members of eligible EEA nationals can mirror the rights of the EEA person as long as they meet the criteria for being classed as a family member.

Permanent right to reside

Under retained EU law, permanent right to reside is usually acquired after five years of exercising EU free movement rights in the UK. This could apply, for example, when someone with pre-settled status qualifies for settled status under the EU Settlement Scheme but has not made an application yet.

Family members can acquire it earlier if the EEA national dies, retires or becomes permanently incapacitated.

Family members with a retained right to reside

Under retained EU law, some non-EEA family members of eligible EEA nationals may continue to be eligible even after the EEA person dies, leaves the UK, or if there is a relationship breakdown.

After 31 December 2020, in order to have a retained right to reside following a relationship breakdown, former spouses or civil partners of EEA nationals must show that their former EEA spouse was exercising EU free movement rights up to the date of divorce, rather than up to the date when divorce proceedings started.[12]

Primary carers of children in education

Primary carers do not mirror the rights of eligible EEA nationals in the same way other family members do. Under retained EU law, a person from abroad who is the primary carer of a child in education is eligible for homelessness assistance, provided that one of the child's parents is or was an EEA worker. For an overview of the conditions that have to be met for the primary carer to be eligible, see EEA nationals eligibility for homelessness assistance before January 2021.

Habitual residence test

Pre-settled status holder who are family members of EEA workers and self-employed persons with pre-settled status, including those with retained worker or self-employed status, are exempt from the habitual residence test.[13]

Family members of British and Irish citizens

In certain circumstances family members of British and Irish citizens may be eligible for assistance under retained EU law.

How to show pre-settled status

Pre-settled status is digital only. The applicant does not have a stamp in their passport or a separate document from the Home Office.

The status can be checked electronically using the Gov.uk – View and prove your immigration status service. The applicant must have their mobile phone, access to email, and proof of identity.

When the status is granted, the Home Office sends a confirmation email which can be printed out. No letters are sent to the applicant.

A person with pre-settled status may not be able to prove their status immediately, for example due to fleeing violence and not having access to their personal belongings.

If a person with pre-settled status makes a homeless application, a printed letter or an email from the Home Office should be enough to satisfy the requirement of a reason to believe they qualify for emergency accommodation.

Immigration advice

Advice about obtaining leave to enter or remain under UK immigration rules is an immigration matter which can only be delivered by an authorised immigration adviser or a qualified solicitor. This includes immigration advice about applying for settled or pre-settled status under the EU Settlement Scheme.

Vulnerable people can get support with their application from a government approved agency.

UKVI Tool: Continue to live in the UK after it leaves the EU is a step-to-step guide to help EEA nationals decide what they should do and when, according to their personal circumstances.

Eligibility rules challenge in the Court of Appeal

In Fratila and Tanase v Secretary of State for Work and Pensions the Court of Appeal declared that the restrictions on EEA nationals and their family members with pre-settled status in relation to access to public funds were unlawful.[14] The Secretary of State for Work and Pensions has been granted permission to appeal by the Supreme Court.

There is a stay on the decision being implemented until the Supreme Court judgment.

Last updated: 2 June 2021

Footnotes

  • [1]

    para 1(b) Sch 4 The Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations 2020 SI 2020/1309.

  • [2]

    para 7.11 Homelessness Code of Guidance for Local Authorities, February 2018.

  • [3]

    paras 5 and 6 Sch 4 The Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations 2020 SI 2020/1309; para 7.11 Homelessness Code of Guidance for Local Authorities, February 2018; see reg 6 The Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006 SI 2006/1294.

  • [4]

    The Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006 SI 2006/1294; para 7.9 Homelessness Code of Guidance, MHCLG, February 2018.

  • [5]

    paras 2 and 3(p) Sch 4 The Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations 2020 SI 2020/1309.

  • [6]

    para 4(e) Sch 4 The Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations 2020 SI 2020/1309.

  • [7]

    para 7.19 Homelessness Code of Guidance, MHCLG, February 2018.

  • [8]

    para 7.18 Homelessness Code of Guidance, MHCLG, February 2018.

  • [9]

    paras 2, 5 and 6  Sch 4 The Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations 2020 SI 2020/1309; para 7.11 Homelessness Code of Guidance for Local Authorities, February 2018; see reg 6 The Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006 SI 2006/1294.

  • [10]

    The Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006 SI 2006/1294; para 7.9 Homelessness Code of Guidance, MHCLG, February 2018.

  • [11]

    paras 2 and 3(p) Sch 4 The Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations 2020 SI 2020/1309.

  • [12]

    para 4(j) Sch 4 The Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations 2020 SI 2020/1309.

  • [13]

    para 7.18 Homelessness Code of Guidance, MHCLG, February 2018.

  • [14]

    Fratila and Tanase v Secretary of State for Work and Pensions [2020] EWCA Civ 1741.