This chapter provides some basic information to help guide local authorities in assisting European Economic Area (EEA) nationals and their family members. It is not to serve as a comprehensive guide to rights under European law and benefit eligibility, so further information may need to be referred to or specialist advice obtained.
When a parent, who is an EEA national or the family member of an EEA national, requests accommodation and/or financial support from social services for their family, the local authority will need to establish whether:
- the parent may be eligible for welfare benefits and homelessness assistance, and
- the provision support is necessary to prevent a breach of the family’s human rights or rights under the EU treaties.
The local authority will therefore need to establish whether the parent has a right to reside in the UK under European law and how this may affect their entitlement to benefits.
The process of the UK leaving the European Union (EU) has not been completed. The rights that people have under European law that are referenced here continue to apply and will only change after the UK finally withdraws from the EU and any transition period has ended. The UK is due to leave the EU on 29 March 2019 and the transition period that has been agreed with the EU will end on 31 December 2020.
9.1 European Economic Area (EEA) countries
The European Economic Area (EEA) is comprised of all European Union (EU) countries and some non-EU members.
|EEA member states|
|Non-EU member states|
* For the purpose of this guidance the term ‘EEA national’ does not include UK nationals but does include Swiss nationals, who also enjoy similar free movement rights as a result of bilateral treaties.
9.2 The right to reside
EEA nationals and their family members do not require leave to enter or to remain in the UK; their rights to enter and reside in the UK are governed by European law, and are commonly referred to as ‘EU treaty rights’ or ‘free movement rights’. These rights are transposed into UK law through the Immigration (European Economic Area) Regulations 2016.
An EEA national’s right to reside is acquired on the basis of their circumstances and there is no requirement for an EEA national to obtain confirmation of this, although they may apply for documentation from the Home Office if they choose to do so. Due to uncertainty over the future of the rights of EEA nationals living in the UK, it is advisable for people to ensure they keep documents that may help evidence their residence and activities in the UK, and relationship with EEA family members, in case this is required at a later date.
All EEA nationals have an initial right of residence for up to three months. To stay in the UK beyond this period, they would need to be ‘exercising a treaty right’, which means being a ‘qualified person.’
An EEA national must be undertaking one of the following specified activities that are set out in the 2016 Regulations in order to be a qualified person:
- Worker (including a worker who recently stopped working)
- Self-employed person (including a former self-employed person)
- Self-sufficient person
To be recognised as a qualified person, an EEA national must satisfy specific requirements that are set out in 2016 regulations. Some of the key requirements are set out below.
- Jobseeker status may only be retained for longer than three months if there is ‘compelling evidence’ that the EEA national is continuing to seek work and has a ‘genuine chance’ of being engaged in employment.
- An EEA national may retain their status as a worker even if they are not currently in employment when they are:
- temporarily unable to work as a result of illness or accident;
- involuntarily unemployed and registered as a jobseeker with the relevant employment office and can provide evidence that they are is seeking employment and have a genuine chance of being engaged (worker status is only retained for longer than six months if they have worked for at least one year and there is ‘compelling evidence’ that they are continuing to seek work and has a ‘genuine chance’ of being engaged in employment);
- involuntarily unemployed and has embarked on vocational training; or
- voluntarily ceased working and embarked on vocational training that is related to their previous employment.
- An EEA national may retain their status as a self-employed person if they are temporarily unable to undertake their self-employment activities as the result of an illness or accident.
- A student or self-sufficient person needs to have ‘comprehensive sickness insurance’ and ‘sufficient resources not to become a burden on the social assistance system of the UK’ during their period of residence.
When new countries accede to the EU, the UK government can limit access to the labour market for nationals of these countries for a set period of time. In the past, restrictions were placed on nationals of the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia and Slovenia, between 1 May 2004 and 30 April 2011, and on nationals of Bulgaria and Romania between 1 January 2007 and 31 December 2013.
Currently, restrictions to the labour market only apply to Croatian nationals, following the accession of Croatia to the EU on 1 July 2013. Croatian nationals who wish to work in the UK are required to apply for worker registration, unless they are exempt from doing so. These restrictions will end on 30 June 2018, after which Croatian nationals will be able to undertake any employment in the UK without prior registration.
EEA nationals will acquire the right of permanent residence after five years’ continuous residence in the UK as a qualified person under the 2016 Regulations, or if they meet the criteria as a worker or self-employed person who has ceased activity because of a permanent incapacity to work.
For more information, see:
9.3 Family members
Certain family members of EEA nationals, whether they are EEA nationals themselves or non-EEA nationals, will have the right to reside in the UK where the EEA national is a ‘qualified person’. Family members may also acquire permanent residence.
The Immigration (EEA) Regulations 2016 define who is considered to be a family member:
- Spouse or civil partner*
- Child under 21 of the EEA national or their spouse/civil partner
- Dependent child age 21 and older of the EEA national or their spouse/civil partner
- Dependent relatives in the ascending line i.e. a parent or grandparent of the EEA national or their spouse/civil partner
* Following a separation, a person will continue to be considered as a spouse or civil partner until the marriage or civil partnership is legally terminated. After that point, they may retain their right of residence if they meet certain conditions set out in the Regulations.
Extended family members of EEA nationals also have the right to reside, including a partner who is in a durable relationship with the EEA national, and other relatives who may be dependent on the EEA national or the EEA national’s spouse or civil partner.
Different rules apply to family members of EEA national students.
It is also possible for a non-EEA national to acquire a derivative right to reside under European law on the basis being the primary carer of a British (or EEA) national adult or child, where failing to permit the carer to stay and work in the UK would lead to the British (or EEA) national leaving the EEA. This is often referred to as the Zambrano right to reside.
A family member’s right to reside is acquired on the basis of their circumstances. There is no requirement for them to obtain confirmation of this, although they may apply for documentation from the Home Office if they choose to do so, and non-EEA national family members will need evidence of their lawful residence for the purpose of obtaining employment, accessing services and ease of travelling in and out of the UK. The only exception to this requirement is that under the Regulations, extended family members are required to obtain documentation from the Home Office before they can be recognised as having a right to reside on that basis.
For more information, see:
9.4 Benefit eligibility
EEA nationals and their family members may access welfare benefits, homelessness assistance or an allocation of social housing through the council register. However, each benefit has regulations which specify on what basis an EEA national or family member would be eligible, and usually require the person to have a right to reside in a particular capacity. This means that EEA nationals may not be able to receive benefits or housing assistance when the eligibility requirements are not satisfied, or their right to reside is difficult to evidence. As the rules are different for each benefit, it may be the case that a person can claim some but not all of the benefits they require.
An EEA national who has worked and becomes unemployed may be able to obtain benefits based on their national insurance contributions, such as contributory-based Jobseeker’s Allowance (JSA), however their ability to access income-based benefits such as income-based JSA and housing benefit will usually depend on whether they continue to be exercising the right to reside as a ‘worker’.
It is therefore important to establish a person’s length of residence and full work/activity history in the UK to determine whether an EEA national or their family member may have the right to reside in the UK and therefore access to benefits.
The rules surrounding benefit eligibility for EEA nationals are complex and the government’s interpretation of European directives can sometimes be more restrictive than the provisions are intended to be, so benefit decisions are often subject to challenge. It is therefore recommended that all EEA nationals presenting to a local authority for assistance are referred for advice in order to establish their entitlement to benefits and/or to check that any refusals of benefits are correct.
9.4.1 Benefit eligibility table
This table serves to act as an indicator as to whether a person may be able to access welfare benefits and housing assistance on the basis of their right to reside under European law. It does not provide confirmation that a person can access those benefits as further enquiries would need to be made by the benefits assessor.
|Right to reside||Eligible for welfare benefits and housing? (See note A)|
|Initial right of residence for three months following entry to the UK by EEA national or their family member.||May only be eligible for: child benefit and child tax credit|
|EEA jobseeker or their family member.||May only be eligible for: JSA (IB), universal credit, child benefit and child tax credit|
|EEA worker (including a person who has retained worker status) or their family member.||Yes|
|EEA self-employed person (including a person who has retained self-employed status) or their family member.||Yes|
|EEA self-sufficient person or their family member.||Yes (see note B)|
|EEA student or their family member.||Yes (see note B)|
|EEA permanent right of residence||Yes|
|Derivative right to reside: Teixeira and Ibrahim
The primary carer of a child of an EEA national worker or former worker where that child is in education in the UK, and where requiring the primary carer to leave the UK would prevent the child from continuing their education in the UK.
|Derivative right to reside: Zambrano
The primary carer of a British or other EEA national child when requiring the primary carer to leave the UK would also require the British/EEA child to leave the EEA.
|Derivative right to reside: Chen
The primary carer of an EEA national child who is exercising free movement rights in the UK as a self-sufficient person, where requiring the primary carer to leave the UK would prevent the EEA national child exercising those free movement rights.
|Yes (see note B)|
A.The welfare benefits referred to for these purposes are those with a right to reside requirement: Child benefit (claimed on or after 1 May 2004); Child tax credit (claimed on or after 1 May 2004); Council tax reduction; Housing benefit; Income- based Jobseeker’s Allowance; Income related Employment and Support Allowance (from 31 October 2011); Income support; State pension credit and Universal credit.
Eligibility for an allocation of social housing through the council register and homelessness assistance referenced here applies to England only, as the housing regulations differ in Wales, Scotland and Northern Ireland.
To claim most benefits and housing assistance the person must have been living in the Common Travel Area (UK, Republic of Ireland, Channel Islands and Isle of Man) for a period of three months prior to the claim.
B. For students or self-sufficient EEA nationals, a benefits assessor will consider whether the claim does not amount to an unreasonable burden on the social assistance system of the UK in order to determine whether they are fulfilling the requirements to be exercising the right to reside in either capacity. Claiming benefits does not mean a person will fail this test.
The following organisations provide information on EEA rights and access to benefits:
9.5 Irish nationals
The Republic of Ireland forms part of the Common Travel Area (CTA), along with the UK, Channel Islands and Isle of Man. Nationals of these countries are allowed to travel and live freely within the CTA.
Irish nationals automatically have a right to reside in the UK for the purpose of claiming benefits, although any non-Irish family members do not.
However, to claim most benefits and housing assistance a person must have been living in the CTA for a period of three months prior to the claim. An Irish national will pass this if they move to the UK directly from Ireland, but not if they have moved to the UK from a country outside of the CTA.
Although Irish nationals are not required to exercise a right to reside under the EU treaties in order to be able claim benefits themselves, any family members who are not Irish or British may need to rely on the Irish national exercising a right to reside in order be eligible for benefits.
Where an Irish national also holds British citizenship, then their family members cannot rely on having a right to reside under European law in order to claim benefits because the Immigration (EEA) Regulations 2016 do not apply to EEA nationals who also hold British citizenship. Although a recent European Court of Justice decision may mean that in some cases this position is no longer compatible with EU law, the UK government has not yet amended the Regulations. Advice from a specialist benefits adviser should be sought if a person is the family member of a dual Irish/ British national.
9.6 Returning British citizens
The UK forms part of the Common Travel Area (CTA), along with the Republic of Ireland, Channel Islands and Isle of Man. Nationals of the CTA will automatically have a right to reside and will be habitually resident in the UK for the purpose of claiming certain benefits.
However, to claim most benefits and housing assistance a person must have been living in the Common Travel Area for a period of three months prior to the claim. A British citizen will pass this if they have been living in the Republic of Ireland for at least three months before arriving in the UK, but will not if they have been living in a country outside of the CTA.
Therefore, British citizens returning to live in the UK may face at least a three-month delay before being able to access benefits and housing services, so social services may need to undertake a child in need assessment if such a family has no access to accommodation and/or financial support with a view to providing these on a temporary basis. British citizen parents should not be recorded on the NRPF Connect database.
9.7 Difficulties asserting the right to reside
Due to the challenges and complexities of establishing whether a person has a right to reside, and difficulties with regards to evidencing this, there may often be differences in opinion between social services and the local housing authority or the DWP. The points made here are to help practitioners identify when an EEA national or their family member may be able to challenge a refusal of assistance.
- When a housing authority in England finds that an EEA national is ineligible to receive homelessness assistance, they would need to issue a section 184 decision letter setting out the reasons why the EEA national is not eligible, which has a right to review. A direct referral to children’s services should be made when a family are found to be ineligible.
- In order to determine whether an EEA national is a worker, is self-employed, or has retained worker or self-employed status, the DWP and local authority housing benefit department will apply the ‘minimum earnings threshold’. This is a two-part test which is not set out in legislation and requires a person to have regularly earned a specified amount of money over a three month period, set at what someone working 24hrs/week at minimum wage would earn. When a person does not satisfy the minimum earnings threshold, the benefits assessor must consider whether the employment is ‘genuine and effective’. Note that it is not a legal requirement for a person to demonstrate that they meet the minimum earnings threshold.
- There is no requirement for work to have been legal so a person receiving cash in hand payments can be a worker, but this may be difficult to evidence. This principle also applies to an EEA national who is a victim of modern slavery or trafficking as work undertaken, despite it being exploitative, may mean they have a right to reside as a worker or have retained worker status.
- When a person has separated from an EEA national spouse or partner due to domestic violence, and they are unable to provide evidence of their former partner’s employment to support an application to the Home Office to confirm that they have a right to reside as a family member of an EEA national, or have a retained their right of residence, then the Home Office has the power under section 40 of the UK Borders Act 2007 to obtain evidence directly from HMRC, and has a policy setting out details of this.
- When an EEA national has resided in the UK for five years or more then they may have a permanent right of residence; an immigration adviser can help to establish this and apply for documentation from the Home Office.
- Families who are unable to claim welfare benefits or homelessness assistance on the basis that the parent has no right to reside and/or are not habitually resident in the UK will need to be assessed for assistance under section 17 of the Children Act 1989, subject to a human rights assessment.
- Families, where the parent has a derivative right to reside in the UK, for example, as the primary carer of a British Citizen child, are not subject to the Schedule 3 exclusions to social services support, so must be provided with assistance when the child is assessed as being in need.
If a person is having difficulty establishing their right to reside, they have the following options:
- Obtain advice from a benefits adviser with a good understanding of European law – legal aid is available for appeals
- Apply for Home Office documentation to confirm their right to reside – an immigration adviser with experience of European law should be able to advise and assist with such an application but legal aid is only available for domestic violence cases
- Send a written query to the AIRE Centre – advice will be provided based on the information given, which may then assist a welfare rights adviser to prepare a benefits claim or appeal, but note that it may take several weeks to receive a response
For help finding a local adviser see section: