Homelessness code of guidance for local authorities

Chapter 7: Eligibility for assistance

Guidance on the provisions relating to an applicant’s eligibility for homelessness services.

7.1 This chapter provides guidance on the provisions relating to an applicant’s eligibility for homelessness services.

7.2 Housing authorities have a duty to provide or secure the provision of advice and information about homelessness and the prevention of homelessness, free of charge which must be available to any person in their district. All applicants, including those who are ineligible as a result of their immigration status, will be able to access this form of assistance from the housing authority. Housing authorities should refer applicants to appropriate support which they may be entitled to where relevant.

For further guidance on the provision of advice and information on homelessness and the prevention of homelessness see Chapter 3.

7.3 Part 7 of the 1996 Act includes provisions that make certain people from abroad ineligible for housing assistance. Housing authorities will therefore need to satisfy themselves that applicants are eligible before providing housing assistance. The provisions on eligibility are complex and housing authorities will need to ensure that they have procedures in place to carry out appropriate checks on housing applicants.

7.4 Housing authorities should ensure that staff who are required to screen applicants about eligibility for assistance are given training in the complexities of the housing provisions, the housing authority’s duties and responsibilities under the Equality Act 2010 and are able to deal with applicants in a sensitive manner.

7.5 Local authorities are reminded that Schedule 3 to the Nationality, Immigration and Asylum Act 2002 provides that certain persons shall not be eligible for support or assistance provided through the exercise of housing authorities’ powers to secure accommodation pending a review (section 188(3)) or pending an appeal to the county court (section 204(4)). For further guidance see paragraphs 7.21–7.22.

Persons from abroad

  1. 7.6 A person will not be eligible for assistance under Part 7 if they are a person from abroad who is ineligible for housing assistance under section 185 of the 1996 Act. In particular:

    1. (a) a ‘person subject to immigration control’ is not eligible for housing assistance unless they come within a class prescribed in regulations made by the Secretary of State; and,

    2. (b) the Secretary of State can make regulations to provide for other descriptions of person from abroad who, although they are not subject to immigration control, are to be treated as ineligible for housing assistance.

7.7 The regulations that set out which classes of persons from abroad are eligible or ineligible for housing assistance are the Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006 (‘the Eligibility Regulations’). Persons subject to immigration control are not eligible for housing assistance unless they fall within a class of persons prescribed in regulation 5 of the Eligibility Regulations. Persons who are not subject to immigration control will be eligible for housing assistance unless they fall within a description of persons who are to be treated as persons from abroad who are ineligible for assistance by virtue of regulation 6 of the Eligibility Regulations.

Persons subject to immigration control

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

  1. 7.9 Only the following categories of person do not require leave to enter or remain in the UK:

    1. (a) British citizens;

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

    3. (c) citizens of an EEA country (‘EEA nationals’) and their family members, who have a right to reside in the UK that is derived from European Union law or any provision made under section 2(2) of the European Communities Act 1972. The question of whether an EEA national (or family member) has a right to reside in the UK (or in another Member State e.g. the Republic of Ireland) will depend on their circumstances at that particular time, e.g. whether the EEA national is, for the purposes of the Immigration (European Economic Area) Regulations 2016, a jobseeker, a worker, a self-employed person, and so on;

    4. (d) persons who are exempt from immigration control under the Immigration Acts, including diplomats and their family members based in the United Kingdom, and some military personnel.

For the purposes of this guidance, ‘EEA nationals’ means nationals of any of the EU member states (excluding the UK), and nationals of Iceland, Norway, Liechtenstein and Switzerland.

7.10 Any person who does not fall within one of the 4 categories in paragraph 7.9 above will be a person subject to immigration control and will be ineligible for housing assistance unless they fall within a class of persons prescribed by regulation 5 of the Eligibility Regulations (see paragraph 7.12 below).

7.11 If there is any uncertainty about an applicant’s immigration status, it is recommended that authorities contact the Home Office. In some circumstances, local authorities may be under a duty to contact the Home Office (see paragraph 7.23).

Persons subject to immigration control who are eligible for housing assistance

  1. 7.12 Generally, persons subject to immigration control are not eligible for housing assistance. However, by virtue of regulation 5 of the Eligibility Regulations, the following classes of person subject to immigration control are eligible for housing assistance:

    1. (a) a person whose refugee status has been recognised by the Secretary of State and who has leave to enter and remain in the UK. Persons granted refugee status are usually granted 5 years’ limited leave to remain in the UK. (Prior to 30 August 2005, it was the policy to provide immediate settlement (indefinite leave to remain) for persons granted refugee status);

    2. (b) a person who has discretionary leave to enter or remain in the United Kingdom granted outside the provisions of the Immigration Rules; and whose leave to enter or 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;

    3. (c) 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: such a person will have indefinite leave to enter or indefinite leave to remain and will be regarded as having settled status. However, where indefinite leave to enter or indefinite leave to remain status was granted as a result of an undertaking that a sponsor would be responsible for the applicant’s maintenance and accommodation, the person must have been resident in the UK, the Channel Islands, the Isle of Man or the Republic of Ireland for 5 years since the date of entry – or the date of the sponsorship undertaking, whichever is later – for the applicant to be eligible. Where a sponsor has (or, if there was more than one sponsor, all of the sponsors have) died within the first 5 years, the applicant will be eligible for housing assistance;

    4. (d) a person who has humanitarian protection granted under the Immigration Rules;

    5. (e) a person who is habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland and who has limited leave to enter the United Kingdom as a relevant Afghan citizen under paragraph 276BA1 of the Immigration Rules;

    6. (f) 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.

    7. (g) a person who is habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland 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. (Effective from 9th July 2018.)

Asylum seekers

7.13 Under section 186 of the 1996 Act, an asylum seeker who would otherwise be eligible for housing assistance will be ineligible if they have any accommodation available in the UK for their occupation, however temporary. This exclusion is only relevant to pre-April 2000 asylum seekers who are eligible for homelessness assistance.

Other persons from abroad who are ineligible for assistance

  1. 7.14 By virtue of regulation 6 of the Eligibility Regulations, a person who is not subject to immigration control and who falls within one of the following descriptions of persons is to be treated as a person from abroad who is ineligible for housing assistance:

    1. (a) a person who is not habitually resident in the UK, the Channel Islands, the Isle of Man or the Republic of Ireland (subject to certain exceptions – see paragraph 7.15 below);

    2. (b) a person whose only right to reside in the UK is derived from their status as a jobseeker (or their status as the family member of a jobseeker). For this purpose, ‘jobseeker’ has the same meaning as for the purpose of regulation 6(1)(a) of the Immigration (European Economic Area) Regulations 2016 (‘the EEA Regulations’);

    3. (c) 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. (d) 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. (e) a person whose only right to reside in the UK is derived from Article 20 of the Treaty on the Functioning of the European Union in a case where the right to reside arises because a British citizen would otherwise be deprived of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizen (also know as ‘Zambrano carers’);

    6. (f) a person whose only right to reside in the Channel Islands, the Isle of Man or the Republic of Ireland–

      1. (i) is a right equivalent to one of those mentioned in sub-paragraph (b-d) above which is derived from the Treaty on the Functioning of the European Union; or
      2. (ii) is derived from Article 20 of the Treaty on the Functioning of the European Union, in a case where the right to reside in the Republic of Ireland arises because an Irish citizen, or in the Channel Islands or the Isle of Man arises because a British citizen also entitled to reside there and would otherwise be deprived of the genuine enjoyment of the substance of their rights as a European Union citizen.

Persons exempted from the requirement to be habitually resident

  1. 7.15 Certain persons from abroad are not subject to the requirement to be habitually resident in the UK, the Channel Islands, the Isle of Man or the Republic of Ireland. Such a person will be eligible for assistance even if not habitually resident, if they are:

    1. (a) an EEA national who is in the UK as a worker (which has the same meaning as it does for the purposes of regulation 6(1) of the EEA Regulations);

    2. (b) an EEA national who is in the UK as a self-employed person (which has the same meaning as it does for the purposes of regulation 6(1) of the EEA Regulations);

    3. (c) 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 national subject to worker authorisation);

    4. (d) a person who is a family member of a person referred to in (a) to (c) above;

    5. (e) a person with a right to reside permanently in the UK by virtue of regulation 15(c), (d) or (e) of the EEA Regulations;

    6. (f) 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.

7.16 On (a) and (b), authorities should note that a person who is not currently working or self-employed will retain their status as a worker or self-employed person in certain circumstances. On (c), authorities should note that an accession state worker will generally only be treated as a worker if they hold an accession worker authorisation document and are working in accordance with the conditions set out in that document. On (d), authorities should note that ‘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.

7.17 For further guidance on EEA right to reside see pages 6-8 of Home Office guidance on administrative removal of EEA nationals.

The habitual residence test

7.18 The term ‘habitual residence’ is intended to convey a degree of permanence in the person’s residence in the UK, the Channel Islands, the Isle of Man or the Republic of Ireland; it implies an association between the individual and the place of residence and relies substantially on fact.

7.19 The Secretary of State considers that it is likely that applicants who have been resident in the UK, Channel Islands, the Isle of Man or the Republic of Ireland continuously during the 2-year period prior to their housing application will be habitually resident. In such cases, therefore, housing authorities may consider it unnecessary to make further enquiries to determine whether the person is habitually resident, unless there are other circumstances that need to be taken into account. A period of continuous residence in the UK, Channel Islands, the Isle of Man or the Republic of Ireland might include periods of temporary absence. 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.

7.20 A person will not generally be habitually resident anywhere unless they have taken up residence and lived there for a period. There will be cases where the person concerned is not coming to the UK for the first time, and is resuming a previous period of habitual residence.

For further guidance on habitual residence see Annex 1.

Persons ineligible under certain provisions by virtue of Schedule 3 to the Nationality, Immigration and Asylum Act 2002

  1. 7.21 Section 54 of, and Schedule 3 to, the Nationality, Immigration and Asylum Act 2002 have the effect of making certain applicants for housing assistance ineligible for accommodation under section 188(3) (power to accommodate pending a review) or section 204(4) (power to accommodate pending an appeal to the county court) of the 1996 Act. The following classes of person will be ineligible for assistance under those powers:

    1. (a) a person who has refugee status abroad, i.e. a person:
      1. (i) who does not have the nationality of an EEA State, and
      2. (ii) who the government of an EEA State other than the UK has determined is entitled to protection as a refugee under the Refugee Convention;
    2. (b) a person who has the nationality of an EEA State other than the UK (but see paragraph 7.22 below);

    3. (c) a person who was (but is no longer) an asylum seeker and who fails to co-operate with removal directions issued in respect of them;

    4. (d) a person who is in the UK in breach of the immigration laws (within the meaning of section 50A of the British Nationality Act 1981) and is not an asylum seeker;

    5. (e) certain persons who are failed asylum seekers with dependent children, where the Secretary of State has certified that, in their opinion, such a person has failed without reasonable excuse to take reasonable steps to leave the UK voluntarily or place themselves in a position where they are able to leave the UK voluntarily, and that person has received the Secretary of State’s certificate more than 14 days previously;

    6. (f) a person who is the dependant of a person who falls within class (a), (b) or (c) above.

7.22 However, section 54 and Schedule 3 do not prevent the exercise of an authority’s powers under section 188(3) and section 204(4) of the 1996 Act to the extent that such exercise is necessary for the purpose of avoiding a breach of a person’s rights under the European Convention of Human Rights or rights under EU Treaties. Among other things, this means that a local authority can exercise these powers to accommodate an EEA national who has a right to reside in the UK under EU law.

7.23 Paragraph 14 of Schedule 3 provides, among other things, that authorities must inform the Secretary of State where the powers under section 188(3) or section 204(4) apply, or may apply, to a person who is, or may come, within classes (c) or (d) in paragraph 7.21 by contacting the Home Office.

7.24 For further guidance, local authorities should refer to Guidance to Local Authorities and Housing Authorities about the Nationality, Immigration and Asylum Act, section 54 and Schedule 3, and the Withholding and Withdrawal of Support (Travel Assistance and Temporary Accommodation) Regulations 2002, issued by the Home Office.

Restricted cases

7.25 A restricted case is a case where the housing authority would not be satisfied that the applicant had a priority need for accommodation without having had regard to a ‘restricted person’ within the household. This would be the case, for example, where an applicant who is an eligible British citizen who would not have priority need if they applied alone, does have priority need because of their dependent children who are ‘restricted persons’.

  1. 7.26 A restricted person means a person who is not eligible for assistance under Part 7 of the 1996 Act and is subject to immigration control and either:

    1. (a) does not have leave to enter or remain in the UK; or,

    2. (b) does have leave but it is subject to a condition of no recourse to public funds.

7.27 In a restricted case, the housing authority must, so far as reasonably practical, bring the section 193(2) duty to an end by arranging for an offer of an assured shorthold tenancy to be made to the applicant by a private landlord (a private rented sector offer of at least 12 months in length).

7.28 Where a housing authority considers a household member of an applicant may be a restricted person who does not have leave to enter or remain in the UK, or if there is uncertainty about the immigration status of any household member, it is recommended that the authority contact the Home Office.