When a parent who is a European Economic Area (EEA) national, or family member of an EEA national, presents to social services, the local authority will need to establish whether the family may be eligible for welfare benefits and homelessness assistance, and if not, whether support is necessary to prevent a breach of the family’s human rights or rights under the European Treaties.
This chapter provides basic information to help local authorities establish whether a person has a right to reside in the UK under the European law and how this may affect their entitlement to benefits. It is not to serve as a comprehensive guide to European rights and benefit eligibility so further information may need to be referred to or advice obtained. Since January 2014, the government has imposed several restrictions on benefit eligibility for EEA nationals, and so therefore social services are likely to receive more referrals for assistance from such families.
5.1 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.
5.2 The right to reside
EEA nationals do not require leave to enter or to remain in the UK; their right to enter and reside in the UK is governed by European law, commonly referred to as the ‘European Treaties’. The European Treaties set out rights of economic free movement between EEA member states. These rights are transposed into UK law by the Immigration (European Economic Area) Regulations 2006.
An EEA national’s right to reside is acquired on the basis of fact; therefore there is no requirement for an EEA national to obtain confirmation of their status, although they may apply for documentation from the Home Office if they choose to do so.
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.’
To be a qualified person, an EEA national must be undertaking a specified activity as a:
- worker (including a worker who recently stopped working),
- self-employed person (including a formerly self-employed person),
- self-sufficient person, or
To be recognised as a qualified person, an EEA national must satisfy specific requirements that are set out in the Immigration (EEA) Regulations 2006:
- 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 – regulation 6(7).
- An EEA national may retain their status as a worker even if they are not currently in employment and will continue to be a worker if 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. An EEA national will only retain worker status on this basis 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 his previous employment – regulation 6(2).
- A student and self-sufficient person needs to have “sufficient resources not to become a burden on the social assistance system of the UK” during their period of residence – regulation 4(1).
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.
EEA nationals will acquire the right of permanent residence after five years continuous residence in the UK as a qualified person under the Immigration (EEA) Regulations 2006, or if they meet the criteria as a worker or self-employed person who has ceased activity because of a permanent incapacity to work.
5.3 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.
Regulation 7 of the Immigration (EEA) Regulations 2006 defines family members as:
- 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
- Dependant relatives in the ascending line i.e. a parent or grandparent of the EEA national or their spouse/civil partner
*Note that a person will continue to be considered as a spouse or civil partner following separation until the marriage or civil partnership is legally terminated, and after that point may retain their right of residence if they meet certain conditions set out in the regulations.
Regulation 8 provides for extended family members of EEA nationals to have the right to reside, such as 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 when the EEA national has the right to reside as a student.
It is also possible for a parent to acquire a derivative right to reside under European law on the basis of their child’s rights. The Court of Justice of the European Union has made several determinations to this effect and these are set out in the table summarising benefit eligibility in section 5.4.1.
A family member’s right to reside is acquired on the basis of fact; there is no requirement for them to obtain confirmation of their status, 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 extended family members, who under the Immigration (EEA) Regulations 2006 must obtain documentation from the Home Office before they can be recognised as having a right to reside on this basis.
5.4 Benefit eligibility
EEA nationals and their family members may access welfare benefits, homelessness assistance or an allocation of social housing. However, they may not always be able to receive benefits or housing assistance where eligibility requirements relate to having a right to reside in a particular capacity.
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 depend on whether they continue to be exercising the right to reside as a ‘worker’.
It will therefore be important to establish a person’s length of residence and full work 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 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 to their local Citizens Advice Bureau (CAB) or other welfare rights advice agency in order to establish their entitlement to benefits and/or to check that any refusals of benefits are correct.
For further information see sections:
5.4.1 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 assessor.
|Right to reside||Eligible for welfare benefits and housing?*|
|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**|
|EEA student or their family member.||Yes**|
|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 for the 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.
*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 social housing and homelessness assistance referenced here applies to England only, as the housing regulations differ in the devolved administrations.
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.
**In order to demonstrate an EEA national is a student or self-sufficient, a benefits assessor will consider whether any benefit claim does not amount to an unreasonable burden on the social assistance system of the UK. It is therefore possible that the person may be considered not to fulfil the requirements to be exercising the right to reside in either capacity.
5.5 Irish nationals
Irish citizens are EEA nationals but are not required to exercise a right to reside under the European Treaties in order to be able to live in the UK. The Republic of Ireland forms part of the Common Travel Area, along with the UK, Channel Islands and Isle of Man. The Common Travel Area Agreement allows for nationals of the Common Travel Area to travel and live freely within that area.
Additionally, Irish nationals automatically have a right to reside in the UK for the purpose of claiming benefits, although their non-Irish family members do not. Such a family member may therefore need to rely on the Irish national exercising a right to reside under European law in order to gain access to benefits. However, the rights of EEA nationals and their family members, as set out in the Immigration (EEA) Regulations 2006, do not apply to EEA nationals who also hold British citizenship. Therefore the family member of an Irish national with dual British Citizenship will not be able to rely on having a right to reside under European law on that basis and should seek advice from a benefits adviser.
5.6 UK nationals returning from abroad
UK nationals who are resident in the Common Travel Area (the UK, Republic of Ireland, Channel Islands and Isle of Man) 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 UK national, who has been living in the Republic of Ireland for at least three months before arriving in the UK, will pass the three month test and should be able to claim benefits and housing assistance.
However, a UK national, who has been living outside of the Common Travel Area and is returning to live in the UK, will be prohibited from accessing most benefits for at least three months following their arrival in the UK. This could also apply to other nationals of Common Travel Area coming to live in the UK. If a family is affected by this they may request assistance under section 17 of the Children Act 1989 for a short period until they become eligible for benefits. UK nationals should not be recorded on the NRPF Connect database.
5.7 Good practice points
Due to the complexity in 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 local authority housing departments 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 local authority housing department in England states that an EEA national cannot be provided with 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 referral to children’s services should be made.
- When an EEA national family makes a homelessness application in England the local authority has a power under section 188 of the Housing Act 1996 to provide temporary accommodation pending decision if it appears that the parents are eligible and in priority need (which families with children under 18 will be).
- 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.
- 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:
- Seek 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. However legal aid is only available for domestic violence cases.
- For complex matters, send a written query to the AIRE Centre – they can provide advice based on the information given, although this could take several weeks. This may then assist a welfare rights adviser to prepare a benefits claim or appeal.
Further information can also be obtained from: