Scottish Code of Guidance

Applicants from EEA countries (including the EU)

13.21 A person who is from one of the EEA member states (which includes the EU - see Appendix 13D for list of member states of the EEA) is eligible for assistance.

 

13.22 The "A8" member states are eight of the countries which joined the EEA on 1 May 2004. They are: the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia, and Slovenia. Nationals from these countries have the same rights to housing and homelessness assistance as nationals from other EEA states. Note that this is different from the situation in England where regulations ( SI 2004 No. 1235) have been made to disallow persons from EEA member states from being eligible for homelessness assistance unless they satisfy certain conditions.

 

13.23 This situation may change in the future and the Scottish Executive will keep LAs informed of any changes.

 

13.24 In May 2006 Home Office brought into force legislation ( SI 2006/1003) which transposed EC Directive 2004/38. This Directive consolidates the right of citizens of the European Union (and their family members) to move and reside freely within the territory of EU Member States. The relevant aspects of Home Office's legislation are:

a) an "initial right to reside" now exists for EEA citizens for up to 3 months if they fulfil certain criteria. Different criteria apply to citizens of the "old" EU countries and those of the A8 states (The Code of Guidance explains these categories). Citizens of the "old" EU countries obtain the right to reside if they are a worker, a job-seeker, self-sufficient, self-employed, a student, or a family member of any of these classes. Citizens of the A8 states need to be a worker and registered on the Workers Registration Scheme, or self-sufficient in order to have the right to reside;

b) there is an "extended right to reside" for some classes of EEA citizens if they reside in the UK for more than 3 months and less than 5 years;

c) there is a "permanent right to reside" for some classes of EEA citizens who have been in the UK for more than 5 years and fulfil the criteria, and;

d) this legislation also specifies that if an EEA citizen does not have the right to reside in the UK they become subject to immigration control.

 

13.25 EEA citizens who are subject to immigration control come within the scope of the Asylum and Immigration Act 1999. The effect of this Act is that persons subject to immigration control are not eligible for homelessness assistance in Scotland unless they come within a specified class of persons. Relevant existing legislation ( SI 2000/706) made under this Act allows certain classes of persons subject to immigration control to obtain access to homelessness assistance in Scotland.

 

13.26 One of the classes of persons in SI 2000/706 who are eligible for homelessness assistance in Scotland is a person who is a national of a country which has ratified the European Convention on Social and Medical Assistance ( ECSMA) or the Council of Europe Social Charter ( CESC) and who is lawfully present in the United Kingdom and who is habitually resident in the CTA (Common Travel Area).

 

13.27 There is case law (the Court of Appeal decision on Abdi and Ismael, April 2006) which has the effect of ensuring that EEA nationals who are persons subject to immigration control are eligible for homelessness assistance because they are nationals of countries which have ratified the ECSMA or CESC.

 

13.28 To summarise, EEA nationals who are not persons subject to immigration control are still eligible for homelessness assistance because there is nothing which restricts that right. EEA nationals who are persons subject to immigration control are eligible because they are nationals of countries which have ratified the ECSMA or CESC.


"It should be noted that the initial three month right of residence is not an absolute right to reside in the UK.  The right only subsists so long as the EEA National does not become an unreasonable burden on the social assistance scheme of the United Kingdom.  By virtue of Regulation 13(3)(b) of the 2006 Regulations the right shall cease should the EEA national become an unreasonable burden on the social assistance scheme of the UK.

 

Your client has chosen to seek homelessness assistance in terms of Part II of the Housing (Scotland) Act 1987.  By doing so he is asking that the local authority secures him permanent accommodation.  Given that he appears to be exercising a temporary right of residence the very fact that he is seeking assistance to secure permanent accommodation would seem in itself to amount to an unreasonable burden.

 

Accordingly, by seeking homelessness assistance and by virtue of the fact that your client would be totally reliant on benefit I would suggest that the local authority has reasonable grounds for considering that your client is not in fact in the UK exercising his right to an initial three month period of residency as laid out by Regulation 13 of the 2006 Regulations."

 

"Initial right of residence

     13. -(1) An EEA national is entitled to reside in the United Kingdom for a period not exceeding three months beginning on the date on which he is admitted to the United Kingdom provided that he holds a valid national identity card or passport issued by an EEA State.

    (2) ...

    (3) But-

(a) &ldots;

 

(b) an EEA national &ldots; who becomes an unreasonable burden on the social assistance system of the United Kingdom shall cease to have the right to reside under this regulation."


E-FLASH No.233

FROM ARDEN CHAMBERS

Draft Allocation of Housing and Homelessness (Amendment) 

(England) Regulations 2006

In general persons subject to immigration control are neither eligible for housing assistance nor for an allocation of housing accommodation unless excepted by regulation. Following the decision of the Court of Appeal in Abdi v Barnet LBC, Ismail v Barnet LBC [2006] EWCA Civ 383 that EEA nationals can be subject to immigration control (Eflash No. 230), the Office of the Deputy Prime Minister is proposing to revoke Classes E and I of the Homelessness (England) Regulations 2000 and Class D of the Allocation of Housing (England) Regulations 2002 with effect from April 20, 2006.

Homelessness (Pt. 7, Housing Act 1996)

Regulation 3, 2000 Regulations, presently provides that persons subject to immigration control are eligible if, inter alia: 

· They are nationals of states which have ratified the European Convention on Social and Medical Assistance or to the Council of Europe Social Charter (i.e. all European Union states plus Iceland, Norway, Romania and Turkey) who are habitually resident in the UK (Class E).

· They are in receipt of income support (subject to limited exceptions) (Class I). 

The proposed revocation will not apply to Pt. 7 applicants, who have not been notified of the authority's determination under s.184, 1996 Act, before April 20, 1996 or, if so notified, were - immediately prior to April 20 - accommodated by the authority.

Allocation of housing accommodation (Pt. 6, Housing Act 1996)

Similarly, reg.4, 2002 Regulations, provides that persons subject to immigration control are eligible if they are, inter alia: 

· Nationals of states which have ratified the European Convention on Social and Medical Assistance or to the Council of Europe Social Charter (i.e. all European Union states plus Iceland, Norway, Romania and Turkey) who are habitually resident in the UK (Class D).

The proposed revocation will not apply to applications under Pt 6 that have been received but not determined before April 20, 2006.