Chapter 3: Eligibility and qualification

Guidance on the provisions relating to an applicant’s eligibility for social housing allocations.

3.1 This chapter provides guidance on the provisions relating to an applicant’s eligibility and qualification for an allocation of social housing.

3.2 Housing authorities must consider all applications made in accordance with the procedural requirements of the authority’s allocation scheme (section 166(3)). In considering applications, authorities must ascertain:

  • if an applicant is eligible for an allocation of accommodation, and
  • if he or she qualifies for an allocation of accommodation

Eligibility

3.3 An applicant may be ineligible for an allocation of accommodation under section 160ZA(2) or (4). Authorities are advised to consider applicants’ eligibility at the time of the initial application and again when considering making an allocation to them, particularly where a substantial amount of time has elapsed since the original application.

Joint tenancies

3.4 Under section 160ZA(1)(b), a housing authority must not grant a joint tenancy to 2 or more people if any one of them is a person from abroad who is ineligible. However, where 2 or more people apply and one of them is eligible, the authority may grant a tenancy to the person who is eligible. In addition, while ineligible family members must not be granted a tenancy, they may be taken into account in determining the size of accommodation which is to be allocated.

Existing tenants

3.5 The eligibility provisions do not apply to applicants who are already secure or introductory tenants or assured tenants of a private registered provider. Most transferring tenants fall outside the scope of the allocation legislation (section 159(4A)); while those who are considered to have reasonable preference for an allocation are specifically exempted from the eligibility provisions by virtue of section 160ZA(5).

Persons from abroad

  1. 3.6 A person may not be allocated accommodation under Part 6 if he or she is a person from abroad who is ineligible for an allocation under section 160ZA of the 1996 Act. There are 2 categories for the purposes of section 160ZA:

    1. (i) a person subject to immigration control – such a person is not eligible for an allocation of accommodation unless he or she comes within a class prescribed in regulations made by the Secretary of State (section 160ZA(2)), and

    2. (ii) a person from abroad other than a person subject to immigration control – regulations may provide for other descriptions of persons from abroad who, although not subject to immigration control, are to be treated as ineligible for an allocation of accommodation (section 160ZA(4)).

3.7 The regulations setting out which classes of persons from abroad are eligible or ineligible for an allocation are the Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006 (as amended) (’the Eligibility Regulations’).

Persons subject to immigration control

3.8 The term ‘person subject to immigration control’ is defined in section 13(2) of the Asylum and Immigration Act 1996 as a person who under the Immigration Act 1971 requires leave to enter or remain in the United Kingdom (whether or not such leave has been given).

  1. 3.9 The provisions of section 7(1) of the Immigration Act 1988 and the Asylum and Immigration Act 1996 have been saved for the purpose of housing legislation to protect the rights of EEA citizens, and their family members, who have citizens’ rights pursuant to the Withdrawal Agreement.

This will ensure that EEA citizens, and their family members, who:

  1. have acquired limited leave to enter and remain in the UK (also known as pre-settled status) by virtue of Appendix EU of the Immigration Rules (“the EU Settlement Scheme”); or

  2. were frontier working in the UK prior to 31 December 2020

will continue to be treated as ‘persons not subject to immigration control’ in the instances where they would previously have been, so that their eligibility for the allocation of social housing can be judged on the basis of regulation 4 of the Eligibility Regulations as was the case prior to 31 December 2020.

3.10 EEA citizens, and their family members, who have been granted indefinite leave to enter or remain (also known as settled status) under the EU Settlement Scheme, do not need the savings to apply to them. Their eligibility should be judged on the basis of Class C of Regulation 3 of the Eligibility Regulations, as is the case for persons subject to immigration control who have been granted indefinite leave to remain. In general, they should be eligible provided they can demonstrate habitual residence in the Common Travel Area.

For the purpose of this guidance references to “the Withdrawal Agreement” in this note are to the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (2019/C 384 I/01). Equivalent provisions are to be found in separation agreements relating to the European Economic Area/European Free Trade Agreement and the EU/Swiss Free Movement of Persons Agreement, which are also given effect in domestic law by the European Union (Withdrawal Agreement) Act 2020.

  1. 3.11 The following categories of persons do not require leave to enter or remain in the UK:

    1. (i) British citizens

    2. (ii) certain Commonwealth citizens with a right of abode in the UK

    3. (iii) Irish citizens, who are not subject to immigration control in the UK because the Republic of Ireland forms part of the Common Travel Area (see paragraph 3.14 (iii) below) with the UK which allows free movement

    4. (iv) by operation of the savings provisions referred to in paragraph 3.9 above, EEA citizens, and their family members, who have established citizens’ rights in accordance with Part 2 of the Withdrawal Agreement, i.e. those who were residents and exercised a right to reside in the UK derived from European Union law or any provision under section 2(2) of the European Communities Act 1972, and those who were frontier working, before 31 December 2020. Whether an EEA citizen (or family member) has exercised a particular right to reside in the UK or rights to be treated as a frontier worker will depend on their circumstances, at that particular time. For example, whether the EEA citizen is, for the purposes of the Immigration (European Economic Area) Regulations 2016 (‘the EEA Regulations’) (as preserved by the savings provisions) a jobseeker, a worker, a self-employed person and so on.

    5. (v) persons who are exempt from immigration control under the Immigration Acts, including diplomats and their family members based in the UK, and some military personnel

For the purpose of this guidance, ‘EEA citizens’ means citizens of any of the EU member states, and citizens of Iceland, Norway, Liechtenstein and Switzerland.

3.12 Any person who does not fall within one of the four categories in paragraph 3.11 will be a person subject to immigration control and will be ineligible for an allocation of accommodation unless they fall within a class of persons prescribed by regulation 3 of the Eligibility Regulations (see below).

3.13 If there is any uncertainty about an applicant’s immigration status, it is recommended that authorities contact the Home Office.

Persons subject to immigration control who are eligible for an allocation of social housing

  1. 3.14 Regulation 3 of the Eligibility Regulations provides that the following classes of persons subject to immigration control are eligible for an allocation of accommodation:

    1. (i) a person granted refugee status: normally granted 5 years’ limited leave to remain in the UK

    2. (ii) a person granted exceptional leave to enter or remain in the UK granted outside the provisions of the Immigration Rules; and whose leave to enter and remain is not subject to a condition requiring them to maintain and accommodate themselves, and any person who is dependent on them, without recourse to public funds. Exceptional leave to remain now usually takes the form of ’discretionary leave’

    3. (iii) a person with current leave to enter or remain in the UK with no condition or limitation, and who is habitually resident in the UK, the Channel Islands, the Isle of Man or the Republic of Ireland (the Common Travel Area): such a person will have indefinite leave to enter or remain and will be regarded as having settled status. However, where indefinite leave to enter or remain was granted as a result of an undertaking that a sponsor would be responsible for the applicant’s maintenance and accommodation, the applicant must have been resident in the Common Travel Area for 5 years since the date of entry – or the date of the sponsorship undertaking, whichever is later – in order to be eligible. Where the sponsor has (or, if there was more than one sponsor, all of the sponsors have) died within the first 5years, the applicant will be eligible for an allocation of accommodation

    4. (iv) a person who has humanitarian protection granted under paragraphs 339C-344C of the Immigration Rules

    5. (v) a person who has limited leave to enter or remain in the United Kingdom on family or private life grounds under Article 8 of the Human Rights Act, such leave granted under paragraph 276BE (1), paragraph 276DG or Appendix FM of the Immigration Rules, and who is not subject to a condition requiring that person to maintain and accommodate themselves, and any person dependent upon them, without recourse to public funds

    6. (vi) a person who is habitually resident in the Common Travel Area and who has been transferred to the United Kingdom under section 67 of the Immigration Act 2016 and has limited leave to remain under paragraph 352ZH of the Immigration Rules

    7. (vii) a person who is habitually resident in the Common Travel Area and who has Calais leave to remain under paragraph 352J of the Immigration Rules (effective from 1 November 2018)

    8. (viii) a person who is habitually resident in the Common Travel Area and who has limited leave to remain in the UK as a stateless person under paragraph 405 of the Immigration Rules

    9. (ix) a person who has limited leave to enter and remain in the UK as the family member of a ‘relevant person of Northern Ireland’ by virtue of Appendix EU to the Immigration Rules

    10. (x) a person who has limited leave to enter or remain in the United Kingdom under Appendix Hong Kong British Citizen (Overseas) of the Immigration Rules, who is habitually resident in the Common Travel Area, and who is not subject to a condition requiring that person to maintain and accommodate themselves, and any person dependent upon them, without recourse to public funds

    11. (xi) a person who has been granted leave by virtue of the Afghan Relocations and Assistance Policy or the previous scheme for locally-employed staff in Afghanistan

    12. (xii) a person with leave to enter or remain in the United Kingdom who left Afghanistan in connection with the collapse of the Afghan government that took place on 15 August 2021 and who is not subject to a condition of no recourse to public funds and has not been given leave to enter or remain as a result of an undertaking that a sponsor would be responsible for the applicant’s maintenance and accommodation. However, a person who was sponsored will be eligible for an allocation of accommodation if the applicant has been resident in the Common Travel Area for 5 years since the date of entry (or the date of the sponsorship undertaking, whichever is later) or their sponsor(s) have died

    13. (xiii) a person in the United Kingdom who left Ukraine in connection with the Russian invasion on 24 February 2022 and had resided in Ukraine immediately before 1 January 2022, and who has been granted leave in accordance with Immigration Rules made under section 3(2) of the Immigration Act 1971

    14. (xiv) a person in the United Kingdom who has limited leave to remain granted in accordance with Appendix Ukraine Scheme of the Immigration Rules pursuant to an application made by that person from within the United Kingdom

    15. (xv) a person who has limited leave to remain granted in accordance with Appendix Temporary Permission to Stay for Victims of Human Trafficking or Slavery of the Immigration Rules

    16. (xvi) a person who was residing in Sudan before 15 April 2023 and left Sudan in connection with the violence which rapidly escalated on 15 April 2023 in Khartoum and across Sudan; has been granted leave in accordance with the Immigration Rules; and whose leave is not subject to a condition of no recourse to public funds and was not given as a result of an undertaking that a sponsor would be responsible for the applicant’s maintenance and accommodation. However, a person who was sponsored will be eligible for an allocation of accommodation if the applicant has been resident in the Common Travel Area for 5 years since the date of entry (or the date of the sponsorship undertaking, whichever is later) or their sponsor(s) have died

    17. (xvii) a person who was residing in Israel, the West Bank, the Gaza Strip, East Jerusalem, the Golan Heights or Lebanon immediately before 7 October 2023, and left Israel, the West Bank, the Gaza Strip, East Jerusalem, the Golan Heights or Lebanon in connection with the Hamas terrorist attack in Israel on 7 October 2023 or the violence which rapidly escalated in the region following the attack; and whose leave is not subject to a condition of no recourse to public funds and was not given as a result of an undertaking that a sponsor would be responsible for the applicant’s maintenance and accommodation. However, a person who was sponsored will be eligible for an allocation of accommodation if the applicant has been resident in the Common Travel Area for 5 years since the date of entry (or the date of the sponsorship undertaking, whichever is later) or their sponsor(s) have died.

Other persons from abroad who may be ineligible for an allocation

  1. 3.15 By virtue of regulation 4 of the Eligibility Regulations, a person who is not subject to immigration control and who falls within one of the following descriptions is to be treated as a person from abroad who is ineligible for an allocation of accommodation:

    1. (i) a person who is not habitually resident in the Common Travel Area (subject to certain exceptions – see paragraph 3.17 below)

    2. (ii) a person whose only right to reside in the UK is derived from his status as a jobseeker (or his status as the family member of a jobseeker). ’Jobseeker’ has the same meaning as in regulation 6(1) of the EEA Regulations

    3. (iii) a person whose only right to reside in the UK is an initial right to reside for a period not exceeding 3 months under regulation 13 of the EEA Regulations

    4. (iv) a person whose only right to reside in the UK is a derivative right to reside to which they are entitled under regulation 16(1) of the EEA Regulations, but only in a case where the right exists under that regulation because the applicant satisfies the criteria in regulation 16(5) of those Regulations

    5. (v) a person whose only right to reside in the Common Travel Area is a right equivalent to one of those mentioned in sub-paragraph (ii) to (iv) above

3.16 For the purposes of determining eligibility for an allocation of social housing, a person who is not subject to immigration control and who falls within categories (ii) or (iii) in paragraph 3.15 above should be treated as ineligible. This is regardless of whether such person has been granted limited leave to enter or remain in the UK by virtue of Appendix EU of the Immigration Rules; or a family permit issued under the EU Settlement Scheme granting them limited leave to enter the UK by virtue of the Immigration (Leave to Enter and Remain) Order 2000.

Persons exempted from the requirement to be habitually resident

  1. 3.17 The following persons from abroad are eligible for an allocation of accommodation even if they are not habitually resident in the Common Travel Area:

    1. (i) an EEA citizen who is in the UK as a worker (which has the same meaning as in regulation 6(1) of the EEA Regulations)

    2. (ii) an EEA citizen who is in the UK as a self-employed person (which has the same meaning as in regulation 6(1) of the EEA Regulations)

    3. (iii) a person who is treated as a worker for the purpose of the definition of ‘qualified person’ in regulation 6(1) of the EEA Regulations pursuant to regulation 5 of the Accession of Croatia (Immigration and Worker Authorisation) Regulations 2013 (as amended), (right of residence of an accession State citizen subject to worker authorisation)

    4. (iv) a person who is a family member of a person referred to in (i) to (iii) above and has been granted pre-settled status;

    5. (v) a person who is in the UK as a result of their deportation, expulsion or other removal by compulsion of law from another country to the UK

    6. (vi) a person who is in the United Kingdom as a frontier worker for the purpose of the Citizens’ Rights (Frontier Workers) (EU Exit) Regulations 2020 (as defined in paragraph 3.18 below)

    7. (vii) a person who is a family member of a person referred to in (vii) above and has a right to reside by virtue of having been granted limited leave to enter or remain in the United Kingdom, as a family member of a relevant EEA citizen, under the Immigration Act 1971 by virtue of Appendix EU to the immigration rules made under section 3 of that Act

    8. (viii) a person who left Afghanistan in connection with the collapse of the Afghan government that took place on 15 August 2021

    9. (ix) a person who left Ukraine in connection with the Russian invasion on 24 February 2022 and had resided in Ukraine immediately before 1 January 2022 and is not subject to immigration control

    10. (x) a person who was residing in Sudan before 15 April 2023 and left Sudan in connection with the violence which rapidly escalated on 15 April 2023 in Khartoum and across Sudan

    11. (xi) a person who was residing in Israel, the West Bank, the Gaza Strip, East Jerusalem, the Golan Heights or Lebanon immediately before 7 October 2023, and left Israel, the West Bank, the Gaza Strip, East Jerusalem, the Golan Heights or Lebanon in connection with the Hamas terrorist attack in Israel on 7 October 2023 or the violence which rapidly escalated in the region following the attack.

  1. 3.18 A person who is no longer working or no longer in self-employment will retain his or her status as a worker or self-employed person in certain circumstances. A person who is no longer working does not cease to be treated as a ‘worker’ for the purpose of regulation 6(1)(b) of the EEA Regulations, if he or she:

    1. (a) is temporarily unable to work as the result of an illness or accident; or

    2. (b) is recorded as involuntarily unemployed after having been employed in the UK, provided that he or she has registered as a jobseeker with the relevant employment office, and:

      1. (i) was employed for one year or more before becoming unemployed; or
      2. (ii) has been unemployed for no more than 6 months; or
      3. (iii) can provide evidence that he or she is seeking employment in the UK and has a genuine chance of being engaged; or

    3. (c) is involuntarily unemployed and has embarked on vocational training; or

    4. (d) has voluntarily ceased working and embarked on vocational training that is related to his or her previous employment.

3.19 EEA citizens who have established citizens’ rights in accordance with Part 2 of the Withdrawal Agreement can be joined by close family members (spouses, civil and unmarried partners, dependent children and grandchildren, and dependent parents and grandparents) who live in a different country at any point in the future, if the relationship existed before/on 31 December 2020 and still exits when the family member wishes to join the EEA citizen in the UK. The family member will have 3 months from their date of arrival, to apply to the EU Settlement Scheme. If the family member is a third country citizen, they can apply for an EU Settlement Scheme family permit or EEA family permit. ‘Family member’ does not include a person who is an extended family member who is treated as a family member by virtue of regulation 7(3) of the EEA Regulations. When considering the eligibility of a family member, housing authorities should consider whether the person has acquired indefinite leave to remain in the UK in their own right, for example, a family member at the point they are eligible and are granted settled status under the EU Settlement Scheme.

The Habitual Residence Test

3.20 The term ’habitual residence’ is intended to convey a degree of permanence in the person’s residence in the Common Travel Area; it implies an association between the individual and the place of residence and relies substantially on fact.

3.21 Applicants who have been resident in the Common Travel Area continuously during the 2 year period prior to their housing application are likely to be habitually resident (periods of temporary absence, e.g. visits abroad for holidays or to visit relatives may be disregarded). Where 2 years’ continuous residency has not been established, housing authorities will need to conduct further enquiries to determine whether the applicant is habitually resident (see annex 2 for further guidance).

Managing applications for social housing from EEA citizens from 1 July 2021

3.22 EEA citizens who have not applied to the EU Settlement Scheme and who do not have a different form of UK immigration status will be considered to have no lawful basis for remaining in the UK. They will need to obtain status under the EU Settlement Scheme or another UK immigration status to resolve this. In line with the Withdrawal Agreements, late applications to the EU Settlement Scheme will be accepted where there are reasonable grounds for missing the 30 June 2021 deadline. An applicant who has made a valid application for the EU Settlement Scheme and is awaiting a decision, who was resident and exercising a qualifying right to reside in the UK by 31 December 2020 should be treated as eligible if they have a permanent right to reside (normally acquired after 5 years), or are working, self employed or a Baumbast Carer at the time of their application for social housing.

3.23 Newly arriving EEA citizens and their family members who have moved to the UK from 1 January 2021 will (unless they are eligible to apply to the EUSS in another capacity, such as being a joining family member) come under the new points-based immigration system. Under that system, access to social housing will be the same for EEA and non-EEA citizens. They will generally be considered eligible after indefinite leave to remain is granted, usually after five years of continuous residence; unless they are within one of the exempted categories under regulation 3 of the Eligibility Regulations.

Qualification

3.24 Housing authorities may only allocate accommodation to people who are defined as ‘qualifying persons’ (section 160ZA(6)(a)). Subject to the requirement not to allocate to persons from abroad who are ineligible and the exceptions for members of the Armed and Reserve Forces and for social tenants who need to move for work related reasons, a housing authority may decide the classes of people who are, or are not, qualifying persons.

3.25 Housing authorities are encouraged to adopt a housing options approach as part of a move to a managed waiting list. A strong and pro-active housing options approach brings several benefits: people are offered support to access the housing solution which best meets their needs (which might be private rented housing, low cost home ownership or help to stay put); expectations about accessing social housing are properly managed; and social housing is focused on those who need it most. A lower waiting list can also be a by-product.

3.26 In framing their qualification criteria, authorities will need to have regard to their duties under the equalities legislation, as well as the requirement in section 166A(3) to give overall priority for an allocation to people in the reasonable preference categories.

3.27 Housing authorities should avoid setting criteria which disqualify groups of people whose members are likely to be accorded reasonable preference for social housing, for example on medical or welfare grounds. However, authorities may wish to adopt criteria which would disqualify individuals who satisfy the reasonable preference requirements. This could be the case, for example, if applicants are disqualified on a ground of antisocial behaviour.

3.28 When deciding what classes of people do not qualify for an allocation, authorities should consider the implications of excluding all members of such groups. For instance, when framing residency criteria, authorities may wish to consider the position of people who are moving into the district to take up work or to escape violence, or homeless applicants or children in care who are placed out of borough 5 .

3.29 The government believes that authorities should avoid allocating social housing to people who already own their own homes. Where they do so, this should only be in exceptional circumstances; for example, for elderly owner occupiers who cannot stay in their own home and need to move into sheltered accommodation.

3.30 There may be sound policy reasons for applying different qualification criteria in relation to existing tenants from those which apply to new applicants. For example, where residency requirements are imposed, authorities may wish to ensure they do not restrict the ability of existing social tenants to downsize to a smaller home. Authorities may decide to apply different qualification criteria in relation to particular types of stock, for example properties which might otherwise be hard to let.

3.31 Whatever general criteria housing authorities use to define the classes of persons who do not qualify for social housing, there may be exceptional circumstances where it is necessary to disapply these criteria in the case of individual applicants. An example might be an intimidated witness 6 who needs to move quickly to another local authority district. Authorities are encouraged to make explicit provision for dealing with exceptional cases within their qualification rules.

3.32 As with eligibility, authorities are advised to consider whether an applicant qualifies for an allocation at the time of the initial application and when considering making an allocation, particularly where a long time has elapsed since the original application.

  1. 3.33 We have made regulations to provide that authorities must not disqualify the following applicants on the grounds that they do not have a local connection 7 with the authority’s district:

    1. (a) members of the Armed Forces and former Service personnel, where the application is made within 5 years 8 of discharge

    2. (b) bereaved spouses and civil partners of members of the Armed Forces leaving Services Family Accommodation following the death of their spouse or partner

    3. (c) serving or former members of the Reserve Forces who need to move because of a serious injury, medical condition or disability sustained as a result of their service

3.34 These provisions recognise the special position of members of the Armed Forces (and their families) whose employment requires them to be mobile and who are likely therefore to be particularly disadvantaged by local connection requirements; as well as those injured reservists who may need to move to another local authority district to access treatment, care or support 9 .

Joint tenants

3.35 In the case of an allocation to 2 or more persons jointly, at least one of the persons must be a qualifying person (section 160ZA(6)(b)) and all of them must be eligible.

Fresh applications

3.36 Applicants who have previously been deemed not to qualify may make a fresh application if they consider they should now be treated as qualifying, but it will be for the applicant to show that his or her circumstances have changed (section 160ZA(11)).

Reviews of decisions on eligibility and qualification

3.37 For guidance on decisions and reviews see chapter 5.

Footnotes

(5) Housing authorities are referred to the statutory guidance Providing social housing for local people published on 31 December 2013 and the statutory guidance Improving access to social housing for victims of domestic abuse published on 10 November 2018. ↩

(6) Intimidated witnesses include Protected Persons as specified in section 82 and schedule 5 of the Serious Organised Crime and Police Act 2005. ↩

(7) As defined by section 199 of the 1996 Act. ↩

(8) Five years reflects guidelines, issued by the local authorities organisations in England, Scotland and Wales, which propose a working definition of normal residence for the purposes of establishing a local connection (see paragraph 10.7 of the Homelessness code of guidance). ↩

(9) Housing authorities are also referred to the statutory guidance Improving access to social housing for members of the Armed Forces published on 27 June 2020 which strongly encourages local authorities to exempt from any local connection requirements divorced or separated spouses or civil partners of Service personnel who need to move out of accommodation provided by the Ministry of Defence. ↩