EEA Migrants: Access To

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BRIEFING PAPERNumber 04737, 29 March 2016EEA migrants: access tosocial housing (England)By Wendy WilsonInside:1. Determining eligibility forhousing: EEA nationals2. Do EEA migrants jump thesocial housing queue?3. Government responseswww.parliament.uk/commons-library intranet.parliament.uk/commons-library papers@parliament.uk @commonslibrary

Number 04737, 29 March g eligibility for housing: EEA nationalsIneligible EEA nationalsEligible EEA nationalsAmendments to the right to resideEEA nationals and habitual residenceAccession state nationals (A8)Bulgarian & Romanian nationals (A2)Croatian nationals457891111122.2.1Do EEA migrants jump the social housing queue?Social housing lettings to foreign nationals13183.3.13.23.33.4Government responsesGuidance on allocation policiesThe Best of Both Worlds the UK’s Special Status in a Reformed EU 2016Access to Housing BenefitPrivate rented sector1919212222Cover page image copyright: Wendy Wilson2

3EEA migrants: access to social housing (England)SummaryPart 1 of this briefing gives a broad overview of the law governing the rights of EuropeanEconomic Area (EEA) migrants to access social housing in England. Part 2 considerswhether there is any evidence to suggest that EEA migrants are able to “jump the queue”to access social housing more quickly than other applicants.Social (council) housing in the UK is a public resource. Therefore, as with entitlement tosocial security benefits, EEA nationals’ access to social housing is based on the principle offree movement and the entitlement of EEA nationals to enjoy equal treatment with UKnationals in accessing social advantages. In summary, EEA nationals may be eligible toapply for social housing if they have a relevant right to reside, for example, if they areworking, self-sufficient, or have a permanent right of residence in the UK (after five yearslawful residence in the UK),However, there is no automatic entitlement to social housing for anyone in England,including British citizens. Even those people from abroad who may be eligible for housingassistance still have to qualify for assistance in line with an authority’s housing allocationscheme, or meet the criteria under which a statutory duty arises to assist homelesshouseholds (Part 7 of the Housing Act 1996 (as amended)).Official statistics on social housing lettings in England show that between April 2014 andMarch 2015 the vast majority of lettings (91%) were made to UK nationals. Researchinto migrants’ access to social housing has found that there is a much higherlikelihood of non-UK nationals living in the private rented sector.The 2010 Coalition Government published additional statutory guidance for localauthorities in December 2013, Providing social housing for local people, the purpose ofwhich is “to assist housing authorities to make full use of the flexibilities within theallocation legislation to better meet the needs of their local residents and their localcommunities.” Under this guidance local authorities are expected to limit access to theirhousing stock to those who have lived in the local area for two years.The White Paper of February 2016, sets out the settlement negotiated by the PrimeMinister. On the subject of access to social housing, the White Paper states that thestatutory guidance will be amended to extend the residence requirement to four years.The rules on eligibility for housing assistance in relation to persons from abroad areextremely complex. Constituents seeking specific advice on their eligibility for housingassistance should seek professional legal help. Guidance can be found in chapter 9 andannexes 11-13 of the Homelessness Code of Guidance for Local Authorities (last updatedin July 2006) and in annexes 2-4 of Allocation of accommodation: Guidance for localhousing authorities in England (2012). The Chartered Institute of Housing (CIH) andBMENational run a Housing Rights website specifically aimed at answering housingeligibility queries in regard to new migrants.Information on housing eligibility in Scotland can be found on the Housing Rights websiteat Housing Rights in Scotland. There were some differences in eligibility between Walesand England until new Regulations came into force in Wales on 31 October 2014. TheseRegulations essentially brought Wales back into line with England.

Number 04737, 29 March 20161. Determining eligibility forhousing: EEA nationalsThis note focuses on the legal framework within which local housingauthorities in England allocate their housing stock. Housing associationsare independent organisations - the Housing Rights website provides ahelpful overview of the legal differences between associations and localauthorities when housing new migrants.When a local housing authority proposes to allocate accommodationunder Part 6 or Part 7 of the Housing Act 1996 (the parts that governthe general allocation of social housing and the eligibility of homelessapplicants for housing assistance) it must decide whether the applicantis eligible for an allocation. This decision rests on an assessment, underthe statutory framework, of issues primarily concerning an applicant’simmigration status and the nature of his or her residence in the UK.Under sections 160ZA(1), 160ZA(2) and 185(2) of the Housing Act 1996(as amended) a person from abroad who is subject to immigrationcontrol (PSIC) cannot be allocated social housing and is ineligible forhousing assistance, unless s/he is of a class prescribed in regulationsmade by the Secretary of State. A PSIC is defined as someone whorequires leave to enter or remain in the UK (whether or not such leavehas been given). 1A number of persons from abroad are not subject to immigrationcontrol; these are primarily European Economic Area (EEA) nationals 2and British nationals who have been living abroad. EEA nationals do notrequire leave to enter or remain in the UK if they have a right to residein the UK that derives from EC law. 3 The question of whether an EEAnational (or family member) has a particular right to reside in the UK willdepend on their circumstances, particularly the economic status of theEEA national (e.g. whether he or she is a worker, self-employed, astudent, or economically inactive). There is also a growing body of caselaw that must be taken into account when reaching a decision on whohas a right to reside in the UK.Thus the existence or otherwise of a person’s right to reside in the UK isthe starting point in establishing their eligibility for housing.On 17 May 2012 the Housing Minister, Grant Shapps, summarisedwhich foreign nationals might be eligible to apply social housing inresponse to a parliamentary question tabled by Rt Hon Frank Field:123Section 13(2) of the 1996 Asylum and Immigration ActThis includes all EU countries plus Iceland, Liechtenstein, Switzerland and Norway.EEA nationals who are not exercising EC Treaty rights to reside, and their familymembers, will not acquire a right of residence under the Immigration (EuropeanEconomic Area) Regulations 2006 (SI 2006/1003) “the EEA Regulations”. Thesepeople still require leave to enter or remain and fall to be treated as PISCs. TheseRegulations have been amended by The Immigration (European Economic Area)(Amendment) Regulations 2012 (2012/1547) and The Immigration (EuropeanEconomic Area) (Amendment) (No.2) Regulations 2012.4

5EEA migrants: access to social housing (England)Grant Shapps [holding answer 14 May 2012]: The information isas follows:Allocation of social housingForeign nationals are eligible for an allocation of social housing if:in the case of European economic area nationals, they have arelevant right to reside, for example, if they are working, selfsufficient, or have a permanent right of residence in the UK (afterfive years lawful residence in the UK),in the case of other foreign nationals, they have been grantedleave to enter or remain in the UK with recourse to public funds(for example, people granted refugee status or humanitarianprotection).Where foreign nationals are eligible, they would have theirhousing needs considered on the same basis as other applicants inaccordance with the local authority's allocation scheme. 4On 16 March 2011 the Supreme Court handed down its judgment inthe Patmalniece case concerning the right-to-reside test. The Court heldthat while the right-to-reside test was indirectly discriminatory on thebasis of nationality, the discrimination was justified as a proportionateresponse to the legitimate aim of protecting the public purse. However,the European Commission has concluded that the test is discriminatory,contrary to EU law, and on 26 April 2012 gave the UK two months inwhich comply with EU rules on the free movement of EU citizens:Brussels, 26 April 2012 – The European Commission has giventhe United Kingdom two months to comply with European Unionrules on the free movement of EU citizens and their families acrossthe EU or face an EU court case. The Commission's request takesthe form of a reasoned opinion (the second step in the three-stepEU infringement process). The Free Movement Directive(2004/38/EC) aims to ensure that EU citizens can fully enjoy theirrights to freely travel, live and work anywhere in the EuropeanUnion. The Commission may refer countries that are not fulfillingtheir obligations to the Court of Justice of the EU. 5This issue is covered in detail in Library briefing paper 05972 EEAnationals: the ‘right to reside’ requirement for benefits.1.1 Ineligible EEA nationalsThe Secretary of State has prescribed that certain persons from abroadwho are not subject to immigration control are also ineligible forhousing assistance by virtue of sections 160ZA(5) and 185(3) of the1996 Act (as amended). Regulations 4 and 6 of The Allocation ofHousing and Homelessness (Eligibility) (England) Regulations 2006SI 2006/1294) 6 ‘the eligibility Regulations’ determine which persons456HC Deb 17 May 2012 c247WEuropean Commission Press Release, 26 April 2012These Regulations have been amended by the Allocation of Housing andHomelessness (Eligibility) (England) (Amendment) Regulations 2006 (2006/2007), theAllocation of Housing and Homelessness (Miscellaneous Provisions) (England)Regulations 2006 (2006/2527), the Allocation of Housing and Homelessness(Eligibility) (England) (Amendment) (No2) Regulations 2006 (2006/3340) theAllocation of Housing and Homelessness (Eligibility) (England) (Amendment)Regulations 2012 (2012/2588); and the Allocation of Housing and Homelessness(Eligibility (England) (Amendment) Regulations 2014 (SI 2014/435).

Number 04737, 29 March 2016from abroad who are not subject to immigration control who arenonetheless ineligible for housing assistance in respect of applicationsmade on or after 1 June 2006. 7 Jan Luba QC, in Housing Allocationand Homelessness Law and Practice, described the primary function ofthese provisions as: “to confine homelessness assistance to the ordinaryresidents of the UK, i.e. those habitually resident here, and to EEAnationals exercising Treaty rights.” 8Broadly, EEA nationals are excluded from housing assistance if they fallinto the following categories: Those who are not habitually resident 9 in the Common TravelArea (CTA) 10 unless they are workers or self-employed EEAnationals, or family members of such EEA nationals.A person whose only right to reside in the UK: is derived from his/her status as a jobseeker 11 or the familymember of a jobseeker; or is an initial right to reside for a period not exceeding threemonths under Regulation 13 of the EEA Regulations (since 8November 2012); 12 orA person whose only right to reside in the CTA is a rightequivalent to one of those mentioned in i) or ii) above which isderived from the Treaty establishing the European Community.The Allocation of Housing and Homelessness (Eligibility) (England)(Amendment) Regulations 2012 (2012/2588) extended the categories ofineligible EEA nationals (with effect from 8 November 2012) to includepersons who have a right of residence in the UK by virtue of theImmigration (European Economic Area) (Amendment) (No.2)Regulations 2012 (2012/2560). 13 The EEA Amendment Regulationsconferred rights of residence and entry on the primary carers of Britishcitizens residing in the UK where the denial of such a right wouldprevent the British citizen from being able to reside in the UK or in anEEA state. These “Zambrano carers” have no right of residence andtherefore no habitual residence in the UK for purpose of claiminghousing and other benefits. 147Applications for assistance made before 1 June 2006 are determined according to theHomelessness (England) Regulations 2000 (SI 2000/701), as amended by SI 2004/1235891011121314and SI 2006/1093.Luba and Davies, Housing Allocation and Homelessness Law and Practice, 2006.Chapter 10.77Habitual residence is not defined in legislation. See: SN00416 The Habitual ResidenceTest and/or the Housing Rights website.UK, the Channel Islands, Isle of Man and the Republic of Ireland.As defined by The Immigration (European Economic Area) Regulations 2006 (SI2006/1003) “the EEA Regulations”, Regulation 6(4)SI 2006/1003These Regulations gave effect to the Court of Justice of the European Union in C34/09 Gerardo Ruiz Zambrano v Office national de l’emploi.The Social Security (Habitual Residence) (Amendment) Regulations 2012(2012/2587)6

7EEA migrants: access to social housing (England)An applicant who is ineligible for housing assistance may still obtainadvice and information about homelessness and the prevention ofhomeless from the local authority free of charge. 151.2 Eligible EEA nationalsEEA nationals who are not habitually resident in the UK may be eligiblefor housing assistance if they are in the UK and have a right to residebecause they are: EEA workers;EEA self-employed persons;workers who are from Croatia and are either working under theauthorisation scheme or are exempted from it; 16a person who is a family member of a person referred to above;a person with a right to reside permanently in the UK by virtue ofRegulation 15 of the 2006 EEA Regulations (as amended), i.e:An EEA worker or a self-employed person who has ceasedeconomic activity. This will arise where someone has reachedretirement age or (for workers only) taken early retirement andthey have lived in the UK continuously for more than three yearsprior to termination and they were economically active for the12 months leading up to the termination.An EEA worker or self-employed person who has stopped work asa result of permanent incapacity and either he resided in the UKcontinuously for more than two years prior to the termination, orthe incapacity arose from an accident at work or occupationaldisease which entitled him to a pension payable in the UK.An EEA national has lived continuously in the UK for three yearsbut is now economically active in another EEA state but hasretained a place of residence in the UK which s/he returns to atleast once a week.The family member of a worker or self-employed EEA national,where the EEA national has died, the family member was residentwith them before their death and either they had worked in theUK continuously for the two years prior to death or their deathwas the result of an accident at work or occupational disease. 17 Here as a result of his/her deportation, expulsion or other removalby compulsion of law from another country to the UK.Even if an EEA migrant is eligible for housing, if they are applying forassistance under Part 7 of the Housing Act 1996 (the homelessnessprovisions) they must also be unintentionally homeless and fall into apriority need category, as defined by section 189 of the 1996 Act,before they can qualify for assistance. 18 Section 185(4) of the 1996 Acthad required authorities to disregard ineligible family members whenreaching a decision over whether an applicant has a priority need for15161718Sections 179(1) & 183(3) of the 1996 Housing ActThe Allocation of Housing and Homelessness (Eligibility (England) (Amendment)Regulations 2014 (SI 2014/435) amended the 2006 Regulations with effect from 31March 2014 to remove reference to Bulgarian and Romanian nationals who also hadto be authorised to work up to 1 January 2014.Housing Rights website: The law on housing eligibility (accessed 27 May 2015)The priority need categories include having a dependent child or a member of thefamily who is pregnant.

Number 04737, 29 March 2016accommodation. Thus if a dependent child was ineligible, even thoughhis/her parents were eligible, the family was treated as not being inpriority need and no statutory duty to house the family arose (but seebelow).The Court of Appeal deemed that section 185(4) was incompatible withArticle 14 (the prohibition of discrimination) of the EuropeanConvention on Human Rights. 19 Subsequently the Labour Governmenttabled amendments to the Housing and Regeneration Act 2008 duringits passage through Parliament to remedy this declaration ofincompatibility across the UK. 20 With effect from 2 March 2009, section314 and Schedule 15 of the 2008 Act amended the Housing Act 1996and the Immigration and Asylum Act 1999 so that the requirement todisregard ineligible household members when considering whether aneligible applicant is homeless or has a priority need for accommodation,no longer applies. 21The amendments have not created a level playing field for formerlyineligible family members in terms of the homelessness legislation.Describing the effect of the amendments, the then Minister, Iain Wrightsaid: in summary the issue at stake is what help British citizens whosehousehold includes members with different immigration statusshould get if they become homeless. The amendments will ensurethat in future, households in those circumstances will be providedwith suitable accommodation, while continuing to ensure thatpeople from abroad with no claim to UK public resources cannotconfer entitlement to long-term social housing. 22Thus the entitlement of homeless households in this position is toan offer of suitable private rented accommodation and not asocial housing tenancy. 23Amendments to the right to resideThe Immigration (European Economic Area) (Amendment) Regulations2012 (2012/1547) came into force on 16 July 2012. These Regulationsamended the 2006 EEA Regulations to give effect to a number ofrulings of the Court of Justice of the European Union (CJEU) concerningEU citizens and their right to reside in the UK, including: 192021222324the right of entry and residence for the primary carer of an EEAnational who is (a) under 18 years old and (b) residing in the UKas a self-sufficient person where the denial of such a right wouldprevent the EEA child from exercising his/her right of residence.This has given effect to the CJEU judgment in Chen; 24the right of entry and residence for (a) a child of an EEA nationalwho is in education and who had begun residing in the UK whenR (on the application of Sylviane Pierrette Morris) v Westminster City Council [2005]EWHC 1184 (CA)HL Deb 23 June 2008 cc520-25CLG Guidance on the amendments, February 2009HC Deb 21 July 2008 c610Provisions in the Localism Act 2011 have now enabled local authorities to dischargetheir duty towards all unintentionally homeless households in priority need by offeringa tenancy of private rented housing.Chen (C-200/02)8

9EEA migrants: access to social housing (England) his/her EEA national parent was residing in the UK as a worker,and (b) the primary carer of a child of an EEA national whererequiring the primary carer to leave the UK would prevent thatchild from being able to continue his/her education in the UK asdecided in Harrow LBC v Ibrahim and Secretary of State for theHome Department C-310/08 and Teixeira v Lambeth LBC andSecretary of State for the Home Department C-480/08; 25residence undertaken in accordance with previous EU lawinstruments concerning free movement can be cou

housing authorities in England (2012). The Chartered Institute of Housing (CIH) and BMENational run a Housing Rights website specifically aimed at answering housing eligibility queries in regard to new migrants. Information on housing eligibility in Scotland can be found on the Housing Rights website at . Housing Rights in Scotland

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