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 in section 117 of the Immigration and Asylum Act 1999 and 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 7.24–7.27.

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 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 nationals, and their family members, who have citizens’ rights pursuant to the Withdrawal Agreement.

This will ensure that EEA nationals, 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 housing assistance can be judged on the basis of regulation 6 of the Eligibility Regulations as was the case prior to 31 December 2020.

7.10 EEA nationals, 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 5 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 the Common Travel Area includes those who are resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland.

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. 7.11 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) 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 7.10) with the UK which allows free movement;

    4. (d) by operation of the savings provisions referred to at 7.9 above EEA nationals and their family members, who have established citizens’ rights in accordance with Part 2 of the Withdrawal Agreement (i.e. those who were resident and have 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 national (or family member) has exercised a 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 national 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. (e) 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, and nationals of Iceland, Norway, Liechtenstein and Switzerland.

7.12 Any person who does not fall within one of the 4 categories in paragraph 7.11 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 7.14 below).

7.13 If there is any uncertainty about an applicant’s immigration status, it is recommended that authorities contact the Home Office or associated partners and organisations. In some circumstances, local authorities may be under a duty to contact the Home Office.

Persons subject to immigration control who are eligible for housing assistance

  1. 7.14 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;

    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 (Common Travel Area): 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 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 – 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 paragraphs 339C – 344C of the Immigration Rules;

    5. (e) 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. (f) 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. (g) 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. (h) 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. (i) 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. (j) a person who has limited leave to enter or remain in the United Kingdom under Appendix Hong Kong British National (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. (k) 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. (l) 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 housing assistance 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. (m) 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. (n) 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

Asylum seekers

7.15 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. 7.16 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 Common Travel Area (subject to certain exceptions – see paragraph 7.18 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 Common Travel Area is a right equivalent to one of those mentioned in sub-paragraph (b-d) above.

7.17 For the purposes of determining eligibility for homelessness assistance, a person who is not subject to immigration control and who falls within categories (b) or (c) in paragraph 7.16 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. 7.18 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 has been granted pre-settled status and 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 has been granted pre-settled status and 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 has been granted pre-settled status and 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 has been granted pre-settled status and is a family member of a person referred to in (a) to (c) above;

    5. (e) 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. (f) 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 7.19 below);

    7. (g) a person who is a family member of a person referred to in (g) 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 national, under the Immigration Act 1971 by virtue of Appendix EU to the immigration rules made under section 3 of that Act;

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

    9. (i) 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.

7.19 With regard to paragraph 7.18 (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. 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: (a) is temporarily unable to work as the result of an illness or accident; or (b) is recorded as involuntarily unemployed after having being employed in the UK, provided that he or she has registered as a jobseeker with the relevant employment office, and: (i) was employed for one year or more before becoming unemployed, or (ii) has been unemployed for no more than 6 months, or (iii) can provide evidence that he or she is seeking employment in the UK and has a genuine chance of being engaged; or (c) is involuntarily unemployed and has embarked on vocational training; or (d) has voluntarily ceased working and embarked on vocational training that is related to his or her previous employment.

7.20 EEA nationals 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 national 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 national, they can apply for an EU Settlement Scheme family permit.

With regard to paragraph 7.18 (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. 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

7.21 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.

7.22 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.

7.23 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. 7.24 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;

    2. (b) 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;

    3. (c) 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;

    4. (d) 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;

    5. (e) a person who is the dependant of a person who falls within class (a) above.

7.25 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. To note, in some cases support and assistance may continue to be provided to a child; or in cases where such support and assistance are permitted by regulations.

7.26 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 7.24 by contacting the Home Office.

7.27 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. Guidance will be updated in due course

Restricted cases

7.28 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. 7.29 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.

7.30 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).

7.31 Prior to the 31 December 2020 an EEA national who resided in the UK on the basis of domestic leave rather than on the basis of EU law, and who is eligible for homelessness assistance (for example where they have been granted discretionary leave to remain on the basis that they were an asylum seeker) is in the same position as a British national at para 7.26 above. This means that they can rely on a ‘restricted person’ to establish their case for assistance.

7.32 From 1 January 2021 EEA nationals will be bought in line with third country nationals and they will not be able to rely on a ’restricted person’ to make their application, unless the EEA national applicant was resident prior to the 31 December 2020 on the basis set out at para 7.28 above, in which case their rights have been preserved.

7.33 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.

  1. 7.34 Managing applications for homelessness assistance from EEA citizens from 1 July 2021

    1. (a) 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 homelessness assistance.

    2. (b) 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 homelessness assistance 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 5 of the Eligibility Regulations.