EEA nationals after Brexit

On January 1, 2021 Britain departed from the European Union. This was done so under the terms of the Withdrawal Agreement Act. The rights of nationals from the European Economic Area are now derived from UK Law instead of European Union Law. This applies across the UK including in the devolved administrations and therefore affects the entitlement to homeless assistance in Scotland.

EEA nationals and their families needed to apply to the UK Government's EU Settlement Scheme by 30 June 2021 in order to continue living, working and studying in the UK and to be eligible for the same rights as they had during the UK’s membership of the EU.

All EEA nationals living in the UK and all people with EU rights to reside (including family members of EEA nationals and ‘Zambrano’ carers’) who arrived prior to 1 January 2021 can apply to the EU Settlement Scheme (“EUSS”).

The deadline for applying to the EU Settlement Scheme was 30 June 2021. Applications to the scheme can still be made, provided a person was given a deadline to apply that is after 30 June 2021, or where they have “reasonable grounds” for not applying before the deadline. Information on reasonable grounds and eligibility for applications after 30 June 2021 is available on the GOV.uk website.

The EUSS enables EEA nationals and their family members to obtain the UK immigration status they need in order to remain in the UK after the end of the transition period, with the same rights as they had during the UK’s membership of the EU. The EUSS family permit enables certain family members of resident EEA citizens to join them in the UK.

People with `settled status’ or `pre-settled status’ are able to:

• work in the UK

• use the NHS

• study

• access public funds such as benefits and pensions, and

• travel in and out of the UK.

EEA nationals who have been in the UK for five continuous years prior to 30th June 2021 could apply for 'settled status' [1]. 

EEA nationals who have been in the UK less than five years could apply for 'pre-settled status’ before 30th June 2021. After five years of continuous residence they can then apply for 'settled status', even if that deadline falls after 30th June 2021.

People in need of advice on when and whether they should apply for the EU Settlement Scheme, or any other aspect of the application process should be referred to a specialist immigration advice service, for example AIRE.

Applications under the scheme are open to:

• EU citizens and their non-EU family members, including those with permanent residence documents.

• Citizens of Norway, Iceland, Lichtenstein and Switzerland.

• Irish citizens do not need to apply, but can if they wish. There are separate arrangements for Irish citizens under the Common Travel Area. Non-Irish non-UK family members will need to apply.

EU citizens with indefinite leave to remain or enter the UK will not need to apply.

Non-EU family members will be able to apply to the Settlement Scheme as long as they can show that they have been resident in the UK by 31 December 2020.

Close family members who are not living in the UK by 31 December 2020 will be able to join EU citizens in the UK in the future. They will need to show that they have a relationship with the EU citizens and that it still exists when they apply to come to the UK.

EU settled status is equivalent to indefinite leave to remain in the United Kingdom (formerly known as permanent residence) with no conditions. A person who has it is eligible for housing and homelessness services [2], regardless of whether they are exercising treaty rights. 

They are not disqualified as a “person subject to immigration control” [3] and therefore are eligible for either a housing allocation or homelessness services.

Any EEA nationals who have pre-settled status are eligible for housing allocations and homelessness assistance providing they are exercising treaty rights (also known as having a right to reside) when they present as homeless.

EU pre-settled status is the equivalent of leave to remain within the United Kingdom with certain conditions attached.

An individual with pre-settled status may apply for settled status after showing that they have been in the United Kingdom for 5 continuous years. 

Right to reside for homeless assistance

To be eligible for homeless assistance, EEA nationals with pre-settled status must be exercising treaty rights. This means they have a right to reside as either:

• a worker or someone with retained worker status

• a self-employed person

• a jobseeker

• a student

• someone with a permanent right to reside

• a family member of someone with a right to reside

• the primary carer of a child in education whose other parent is an EEA national who has worked in the UK

The criteria for welfare benefits differs from the criteria for homeless assistance. If an EEA national with pre-settled status needs to access benefits, specialist advice should be sought.

EEA nationals who are waiting for a decision on their EUSS application are eligible for homelessness assistance, providing that they: [4]

• were exercising treaty rights as at 31 December 2020 and 

• continue to be exercising treaty rights when they present as homeless

This applies whether the EUSS application was made in time or after the 30th June 2021 deadline.

If they are granted pre-settled status and they continue to exercise their right to reside (see above), then they remain eligible. 

However, if they are not granted either pre-settled status or settled status then they will lose their right to reside.

EEA nationals who arrive in the UK after 1 January 2021, or who did not have a right to reside in the UK immediately before 31 December 2020 are subject to immigration control and are ineligible for housing allocation or homelessness services unless they are the Family Member of an EEA national who is lawfully resident.

Persons arriving in UK after June 30 2021, with no status or application under the EU settlement scheme are ineligible for homelessness assistance.

The Scottish Government

The Scottish Government has produced a toolkit called 'EU citizens staying in Scotland: package of support'. This has links to further sources of information and fact-sheets.

Citizens Advice Scotland

Citizens Advice Scotland provides a specialist service called EU Citizen Support. The service is aimed at EU citizens who would like to apply for settled status, but have extra needs. For example clients who:

• have difficulty accessing an android mobile phone

• have limited access to the internet

• find it difficult to get the evidence needed to apply

• may be at greater risk due to personal circumstances

• have specific immigration or residency issues.

The service has a national helpline 0800 916 9847 and is open on:

• Monday and Friday mornings from 0900-1300, and

• Wednesday afternoons from 1300-1700.

Citizens' Rights Project

Funded by the Scottish Government, Citizens' Rights Project provides information, advice and support for EU citizens in Scotland by connecting groups and organisations working within European communities. Aims:

• To assist EU nationals in accessing information and advice on citizens’ rights, and to encourage and facilitate their contacts with public sector and government organisations.

• To inform EU nationals about opportunities available to them in Scotland, but also to promote awareness of their concerns and needs, especially those raised by the likelihood of Brexit.

EU Citizens' Rights

The website, EU Citizens' Rights, provides information for European citizens concerned about their EU rights, their rights after Brexit and what they need to do to stay in the UK. This site is delivered on behalf of the European Commission. It includes a useful search function which can be used to find details of free information events and organisations helping EU citizens in the UK to understand their rights.

The AIRE centre

The AIRE Centre are one of the voluntary organisations across the UK being funded to provide help and information to vulnerable EU, EEA and Swiss citizens applying to the EU Settlement Scheme. They have published a series of useful information sheets covering their rights and Brexit, in both 'deal' and 'no deal' scenarios.