Homelessness rights of family members of EEA nationals after Brexit
Posted on 06/07/21
Eligibility of family members of EEA nationals for homelessness help changed on 1 January 2021. Shelter's senior legal editors Ewa Brem and Alona Kiriak explain the housing rights of family members of EEA nationals.
This is essential reading for anyone advising EEA nationals and their family members.
From 1 January 2021 homeless EEA nationals and their family members who approach the council for help are assessed under new rules. This article provides an overview of these complex rules and Shelter Legal is a comprehensive resource.
A family member of an EEA national can make a homeless application in their own name, for example, if there has been a relationship breakdown or a child has been asked to leave the family home. When a family member makes their own application, the council will check if they are eligible.
Eligibility depends on the person’s immigration status. Being a family member of an EEA national usually benefits people from non-EEA countries who cannot rely on other favourable immigration rules.
In most circumstances, eligibility of family members of EEA nationals depends on whether:
- they have applied to the EU Settlement Scheme
- they or the EEA national was legally resident in the UK on 31 December 2020
The deadline for applications to the EU Settlement Scheme passed on 30 June 2021. Some family members may be able to apply to the Scheme after this date. Only a certified immigration advisor can advise on applying to the EU Settlement Scheme.
The EU Settlement Scheme grants two types of status:
- settled status
- pre-settled status
Even though the UK is no longer a member of the EU, some EU rules are still being used to determine who is and who is not eligible for help when homeless.
Under these rules, family members are:
- children, grandchildren, great grandchildren (all under 21 years old)
- dependent children, grandchildren, great grandchildren of any age
- dependent parents, grandparents, great grandparents
- spouses and civil partners
- extended family members with documentation from the Home Office confirming their relationship with the EEA national
Children include adoptive relationships.
Spouses and civil partners continue to be classed as family members until divorce or dissolution of civil partnership is finalised, even if they are estranged and are not living together.
Extended family members are:
- unmarried partners and their children under 18 years old
- dependent children under 18 living with the EEA national and in their legal care that is not recognised as adoption in the UK
- relatives of the EEA national or their spouse or civil partner who require their personal care on serious health grounds
- dependent relatives of the EEA national who qualify for indefinite leave in the UK
Unmarried partners who split up are no longer classed as extended family members even if they have a valid document from the Home Office.
There is no legal definition of being dependent. The courts have decided that while dependency does not have to be financial, it must be material and related to the ‘basic necessities of life’, that is food, clothing and shelter. Living at someone’s place rent-free and receiving irregular financial assistance is not enough to be classed as dependent.
Family members who have settled status under EU Settlement Scheme are eligible for homelessness assistance in their own right. There is no requirement that they continue to be classed as a family member of an EEA national when they apply as homeless.
Settled status is normally granted to people who have lived in the UK for five years.
To get help when homeless, people with settled status must be habitually resident in the Common Travel Area. Being habitually resident means that a person’s home is in the UK, Ireland, Channel Islands or the Isle of Man.
Family members with pre-settled status ‘mirror’ the eligibility of the EEA national they form a family unit with, in line with retained EU rules. It means that they are eligible if at the time of their homeless application:
- they are classed as a family member of an EEA national
- the EEA national is eligible for homelessness assistance
Both conditions have to be met. If a person forms a family unit with an ineligible EEA national, they are unlikely to be eligible, even if they are classed as a family member.
In certain circumstances family members with pre-settled status can continue to be eligible if the EEA person dies, leaves the UK or there is a relationship breakdown. This mainly applies to family members who are not EEA nationals.
Temporary protection gives family members of EEA nationals the right to live in the UK until they receive a decision from the EU Settlement Scheme.
To qualify for temporary protection, family members must be classed as a family member under EU rules and either:
- have been lawfully resident in the UK on 31 December 2020
- arrive after 31 December 2020, but only if they arrive to join an EEA national who was lawfully resident in the UK on 31 December 2020
A family member with temporary protection can apply as homeless before making an application to the EU Settlement Scheme. In most circumstances, they had until 30 June 2021 to apply but sometimes may be able to apply after this deadline.
Family members with temporary protection ‘mirror’ the rights of the EEA national they form a family unit with, in the same way as those with pre-settled status. They too can retain eligibility in the event of the EEA national’s death, departure from the UK or a relationship breakdown.
In certain circumstances British citizens returning to the UK from an EEA country are treated as if they were EEA citizens. This could benefit their family members who have to make their own homeless application.
A family member can be eligible for homelessness assistance if all of the following apply:
- they were residing in another EEA country with the British citizen
- they are returning to the UK together or joining a British citizen who has already returned
- the British citizen was using their free movement rights in the EEA country, for example worked or studied
This is sometimes referred to as the Surinder Singh route.
From 1 January 2021 there is no requirement that the British citizen continues a free movement activity after returning to the UK for this right to exist.
The deadlines for the family member returning to the UK depend on when the relationship between the British citizen and the family member started. If the relationship started on or after 31 January 2020, the deadline for returning to the UK was 31 December 2020. If the relationship existed before 31 January 2020, the deadline for coming back to the UK is 29 March 2022.
A parent or a primary carer of a child in education is eligible for homelessness assistance if:
- one of the child’s parents is or was an EEA worker in the UK
- the EEA worker and the child resided in the UK together at some point when the parent was employed
- the child would not be able to continue compulsory education in the UK if the primary carer had to leave
Attending nursery is not compulsory education.
Primary carers are eligible if they have pre-settled status or temporary protection. They do not ‘mirror’ eligibility of EEA nationals in the same way other family members do.
Someone who is no longer classed as a family member may be eligible as a primary carer of a child in education. For example, if the relationship between an EEA worker and their unmarried partner breaks down, the parent looking after the child can be eligible if the child is at school.
If an application to the Scheme has been rejected, the family member of an EEA national needs specialist immigration advice. They may be eligible for homelessness assistance under other rules that apply to people from abroad.
Shelter Legal is an online guide to housing law and provides more information on the housing rights of family members of EEA nationals discussed in this article.
People with EU pre-settled status details the rules for getting homeless assistance for EEA nationals with pre-settled status.
People with EU temporary protection sets out the rules for EEA nationals who have not yet been granted settled or pre-settled status under the EU Settlement Scheme.
Eligibility of family members of EEA nationals before January 2021 explains when a family member is eligible under the retained EU rules.
Housing Matters features up-to-date housing and homelessness news, case law updates, and factsheets.
A recent article explains EEA nationals’ homelessness rights after Brexit
Gov.uk has information on how to find a certified immigration adviser.
Find an immigration adviser directs to databases of registered advisers and explains what to check before hiring an adviser.