Ashley Fleming

Eligibility for homelessness assistance in England is governed by section 185 of the Housing Act 1996. The Act says a person is ineligible if they are a “person from abroad” or subject to immigration control (PSIC), unless they fall within a prescribed class. (A PSIC is someone who requires leave to enter or remain in the UK under the Immigration Act 1971).

Before Brexit and during the transition period, EU citizens with enforceable residence rights did not require leave to enter or remain and were not PSICs. Those without such rights were PSICs and generally ineligible.

After the transition period ended, section 7(1) of the Immigration Act 1988 was repealed. EU citizens now require permission to enter or remain and are classified as PSICs. Those with limited leave under the EU Settlement Scheme may avoid PSIC status if they had enforceable residence rights at the time of application. Otherwise, they remain PSICs and are ineligible.

The High Court found the appellant had no freestanding right to reside under Article 21(1) of the Treaty on the Functioning of the European Union. Despite her PSS, she lacked enforceable residence rights and was therefore a PSIC, making her ineligible under domestic law.

The appellant raised three grounds: that she was residing in the UK under the WA and entitled to equal treatment under Article 23; that the discrimination was direct; and that any indirect discrimination was not objectively justified.

The Court rejected all three grounds, referencing case law from the Court of Justice of the European Union (CJEU). Key propositions included: Equal treatment for social assistance applies only if residence complies with the Citizens’ Rights Directive (CRD); National rules may be more generous than EU law but remain domestic and are not imported into EU law; PSS is more generous than CRD requirements and is granted regardless of economic activity or resources; Member States may refuse social benefits to economically inactive EU citizens lacking residence rights under Article 7 of the CRD; Such refusal is not prohibited under EU law, even if unequal treatment results.

Where more generous national rules exist, Member States must respect the Charter of Fundamental Rights of the EU.

Applying these principles, the Court concluded the appellant’s residence was based on domestic law, not the WA. She did not meet economic activity conditions and thus lacked enforceable residence rights or entitlement to equal treatment under Article 23. Her ineligibility under domestic law was upheld.

This decision aligns with the earlier ruling in Secretary of State for Work and Pensions v AT, which clarified that PSS holders do not automatically qualify for social benefits unless CRD conditions are met. However, they retain rights under the Charter of Fundamental Rights of the EU, which may require assistance to avoid breaches of those rights. For local authorities, applications for social assistance from EU citizens with PSS must be carefully assessed. PSS alone does not guarantee entitlement; applicants must demonstrate enforceable residence rights to benefit from equal treatment protections under the WA.

Ashley Fleming is a partner at Harper Macleod. This article first appeared in The Scotsman.