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iii Scottish Executive Code of Guidance on Homelessness
Excerpt from chapter 13 - Local authorities' duties towards persons subject to immigration: www.scotland.gov.uk/Publications/2005/05/31133334/33366
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 Worker 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.
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