Brexit and statutory housing and social care duties?

This article was first published in Lexis PSL Public Law.

Will England’s statutory duties in relation to housing and social care still apply to EU citizens in light of Brexit?

The referendum outcome is advisory; legislation will need to be introduced to repeal the European Communities Act 1972, which incorporates EU law into UK law. Legislation will also be required to ensure that Britain does not find itself outside the EU but bound by EU law already transposed into British legislation.

British exit (Brexit) from the EU cannot be achieved until the UK government invokes Article 50 of the Lisbon Treaty. The negotiation of Brexit and bilateral treaties with the EU and other countries will follow.

There are millions of EU nationals in the UK and millions of UK nationals living and working in Europe. For now, the UK continues to be a part of the EU and EU nationals eligible for housing within the meaning of section 160ZA of the Housing Act 1996 (HA 1996) (Part 6, allocation of social housing) and HA 1996, s185 (Part 7, duty to the homeless) are owed the relevant statutory duties. In order for a person to be eligible for social housing, under HA 1996, Pts 6–7 they must be a qualifying person (HA 1996, s160ZA(6)(a)). Similarly, under section 21 of the Care Act 2014 (CA 2014) a person is not eligible for the provision of social care if subject to immigration control within the meaning of section 115 of the Immigration and Asylum Act 1999.

Eligibility is tied to a person’s immigration status. The EEA Agreement between the EU and the three EEA EFTA states (Iceland, Liechtenstein and Norway) provides for free movement of people between EEA countries. There is also a bilateral agreement between Switzerland and the EU.

• It is the right to reside, that entitles EU citizen to housing and social care in England. It is therefore important to understand when the right to reside arises. Currently, EEA nationals have an initial right to reside in the UK, upon the presentation of a valid national identity card or passport. However, a person exercising the three months initial right to reside in the UK, who is not habitually resident in the Common Travel Area or whose only right to reside in the UK derives from his status as a jobseeker.
   
• While not subject to immigration control is ineligible for housing and social care under Regulation 4 of Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006, SI 2006/1294, reg 4(the Eligibility Regulations). An EEA national will obtain an extended right to reside in the UK and to apply for social housing if they are a worker, or self-employed. An EEA national will have a permanent right to reside if they have resided in the UK for a continuous period of five years, see SI 2006/1003, reg 15(1)(EEA Regulations). This means that, for example, under SI 2006/1294, reg 4(2)(a), an EU citizen who qualifies as a worker, will for so long as he remains a worker, under SI 2006/1003, reg 6 be eligible for the allocation of social housing. The family member of a worker or self-employed person will also have the right. Whether or not the statutory duties to EU nationals exercising an extended or permanent right to reside in the UK will continue to apply will depend on the agreement reached concerning freedom of movement. If Britain does not wish them to apply to workers and self-employed EEA nationals, it will need to make the people subject to immigration control. A person is not eligible for housing or social care if he is a person subject to immigration control unless he comes within a prescribed class, eg refugee.
   
• All EEA nationals would then be treated in the same way as non-EEA nationals and would be eligible only if they fall within one of the prescribed classes in SI 2006/1294, reg 3(a)–(e), eg refugees.

It is not known what form the eventual Brexit agreement between the British government and the EU will take and whether and to what extent it will include freedom of movement of people. It is unlikely that Britain will be able to retain access to the single market, as it does, at present without having to accept freedom of movement.

On 27 June 2016, George Osborne the Chancellor of the Exchequer delivered a statement which included the following:

"In the meantime, and during the negotiations that will follow, there will be no change to people’s rights to travel and work, and to the way our goods and services are traded, or to the way our economy and financial system is regulated".

For now and until the relevant statutes and regulations are repealed, statutory duties in relation to housing and social care will apply to EU workers and self-employed and their families.

For further information on Brexit, see: Brexit timeline and Brexit—overview.