Eligibility for homelessness and allocation of social housing: persons subject to immigration control
How does immigration status affect housing rights? Liz Davies KC and Adrian Berry explain.
This is the first in a regular series where leading practitioners set out the key legal knowledge lawyers need to know about an area of law outside their immediate specialism.
Eligibility for homelessness assistance or an allocation of social housing is regulated by reference to qualifying immigration status and, on occasion, quality of residence. For example, when a person makes an application for homelessness assistance, a local housing authority must enquire whether they are eligible for such assistance (Housing Act (HA) 1996 s184(1)(a)).
If a person is ineligible for assistance, then they are outside the personal scope of the relevant Part of the HA 1996 (Part 6 for allocation of social housing and Part 7 for homelessness assistance) and must look elsewhere for accommodation. Those so excluded and outside the scope of other statutory regimes that may provide accommodation, such as the Care Act 2014, will need to turn to third parties (eg, family, friends, charities, etc) in their search for shelter.
The eligibility criteria are provided for in regulations, those applicable to homeless assistance being made under HA 1996 s185 and those for an allocation for social housing under s160ZA. The current regulations are the Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006 SI No 1294 (AHH(E)(E) Regs). These have been amended many times and are not always easy to follow.
As regards eligibility for homelessness assistance, or for an allocation of social housing, AHH(E)(E) Regs regs 5 and 6 divide those eligible potentially into two groups:
1persons subject to immigration control (PSICs); and
2other persons from abroad.
Everyone, UK-born British citizens included, must satisfy the criteria set out in one group or the other to be eligible.
We deal in this article with the first group of people who may, or may not, be eligible for homelessness assistance and an allocation of social housing: PSICs. The second article in this series (to be published in the July/August 2024 issue of Legal Action) will outline the eligibility for the second group: other persons from abroad.
This article covers the law in England only. The law in Wales, while almost identical in substance, is found in different statutory provisions: HA 1996 s160A (allocation of social housing) and Housing (Wales) Act 2014 s61 and Sch 2.
Finally, eligibility for homelessness assistance or an allocation of social housing is complicated. Reference should always be made to appropriate textbooks, the AHH(E)(E) Regs and the relevant code of guidance, while checking that the reference is up to date.
Homelessness
The basic scheme
PSICs are those who require leave to enter or remain in the UK under the Immigration Act (IA) 1971. In substance, they are people who need a grant of permission from the home secretary to be in the UK. ‘Other persons from abroad’ refers to everyone else. In substance, these are people who have a right to enter into and reside in the UK. Even though they have a right to enter and reside, they may nevertheless be ineligible if they are not habitually resident.
Persons subject to immigration control
Not everyone subject to immigration control will be eligible for homelessness assistance. Some may require leave to enter or remain but lack it. Such persons (be they illegal entrants or overstayers, etc) will be ineligible. Others who have been granted leave to enter or remain but are subject to a condition of no recourse to public funds (NRPF) are also ineligible. Moreover, there will be many people with leave to enter or remain who are ineligible as they do not fall within the prescribed classes of those who qualify. Only those who fall within prescribed classes are included.
A PSIC is not eligible for homelessness assistance unless they fall within a class of people prescribed at AHH(E)(E) Regs reg 5 (HA 1996 s185(2)). A PSIC who does not fall within one of those classes will not be eligible.
No person who is excluded from entitlement to universal credit or to housing benefit by reference to their immigration status under Immigration and Asylum Act 1999 s115 may be included within a prescribed class (HA 1996 s185(2A)). Thus, in principle, a person eligible for homelessness assistance will also be eligible for benefits and may apply for the relevant cash benefit to meet the cost of their accommodation.
Classes of persons prescribed as eligible
The classes are as follows (correct as at 19 April 2024):
Class A – refugees. Such persons must have been recorded by the home secretary as refugees (under the
1951 Refugee Convention) and have been granted leave to enter or remain (in this context, generally meaning those who have been granted asylum).
Class B – persons who have exceptional leave to enter or remain in the UK granted outside the Immigration Rules. They must not be subject to a NRPF condition. This class can include those granted leave outside the rules (LOTR) on compelling and compassionate grounds, as well as those who have been excluded from the Immigration Rules categories on grounds of conduct but were granted LOTR as they cannot be removed. The class can also include those granted discretionary leave (DL), which might be on human rights grounds due to a risk of flagrant breach of fair trial rights in their home state or on grounds arising from modern slavery concerns.
Class C – those granted indefinite leave to enter or remain (no conditions can be attached to such leave). They must be habitually resident in one of the UK, Ireland, the Channel Islands or the Isle of Man (ie, the Common Travel Area (CTA)). However, they will be excluded where they have been given leave on a sponsor family member’s undertaking, they have been resident in the CTA for less than five years (running from the later of their date of entry or date the undertaking was given), and at least one sponsor is still alive. Note that persons granted leave under the Immigration Rules as bereaved partners or as victims of domestic abuse are granted indefinite leave and therefore fall for consideration under this class. Note, too, that beneficiaries of Immigration Rules Appendix EU with settled status/indefinite leave are also within this class.
Class D – those granted humanitarian protection under the Immigration Rules. This is a form of complementary protection where a person is outside the personal scope of the 1951 Refugee Convention but nonetheless faces a qualifying of risk of harm in their home state.
Class G – persons granted limited leave to remain on private life or family life grounds under article 8 of the
European Convention on Human Rights under the applicable Immigration Rules (presently Appendix FM and Appendix Private Life). Note that, as mentioned above, the AHH(E)(E) Regs have not kept pace with the Immigration Rules moving provision for private life to Appendix Private Life. However, the policy to include is unchanged. No one can benefit from class G where subject to a NRPF condition.
Class H – those persons transferred to the UK as unaccompanied refugee children (under IA 2016 s67, the ‘Dubs amendment’) and given limited leave under Immigration Rules para 352ZH. Such persons must be habitually resident in the CTA.
Class I – those persons transferred to the UK between 17 October 2016 and 13 July 2017 from Calais, as part of an exercise to clear the Calais migrant camp, and given connected leave under Immigration Rules para 352J. Such persons must be habitually resident in the CTA.
Class J – persons with limited leave granted under Immigration Rules Appendix EU (ie, pre-settled status) provided that:
•they are a family member of a relevant person of Northern Ireland (RP);
•they are direct (but not extended) family members of the RP (in the EU law sense by reference to domestic provision made to give effect to the definition of ‘family member’ in
Directive 2004/38/EC); and
•they would have been considered eligible (note the tense) of a RP, if that RP were (note the tense) a worker, a self-employed person or a person inside the scope of provision made to include authorised workers from Croatia during that country’s accession transition period on joining the EU.
This is a tortuous way of including as eligible those persons with pre-settled status/limited leave who are family members of a RP. A RP is defined as:
•a British, Irish or British and Irish citizen,
•who was born in Northern Ireland and, at the time of their birth, at least one of their parents was a British citizen, an Irish citizen, a British citizen and an Irish citizen, or otherwise entitled to reside in Northern Ireland without any restriction on their period of residence.
Class K – persons granted limited leave as stateless persons under the Immigration Rules (by reference to the
1954 Stateless Persons Convention). Note that, as mentioned above, the AHH(E)(E) Regs have not kept pace with the Immigration Rules moving provision for stateless persons to their Appendix Statelessness. However, the policy to include is unchanged. Such persons must be habitually resident in the CTA.
Class L – persons who have limited leave to enter or remain under Immigration Rules Appendix Hong Kong British National (Overseas). No one who is subject to a NRPF condition can benefit from class L. Further, such persons must be habitually resident in the CTA. ‘British Nationals (Overseas)’ (BN(O)s) are UK passport holders but they are subject to immigration control. Note that although their family members granted leave under Appendix Hong Kong may not be BN(O)s, they are still eligible under this class.
Class M – two classes of persons associated with Afghanistan. The first is those who have been granted leave to enter or remain under the Immigration Rules on account of the
Afghan Relocations and Assistance Policy (ARAP) or the previous scheme for locally employed staff in Afghanistan (the ex-gratia scheme). Second, others with leave to enter or remain who left Afghanistan in connection with the collapse of the Afghan government on 15 August 2021. This second group of people excludes those subject to a NRPF condition and also excludes those given leave to enter or remain upon a sponsor’s undertaking where resident in the CTA for less than five years (running from the later of their date of entry or date the undertaking was given), and at least one sponsor is still alive.
Class N – persons in the UK (with leave to enter or remain) who: were residing in Ukraine immediately before 1 January 2022; left Ukraine in connection with the Russian invasion that took place on 24 February 2022; and have been granted leave under the Immigration Rules. Persons subject to a NRPF condition are excluded.
Class O – persons in the UK with limited leave
to remain granted under Immigration Rules Appendix Ukraine Scheme on an in-country application. Again, persons subject to a NRPF condition are excluded. Note that any person granted leave to enter or remain exceptionally, eg, under a concession arising out the Russian invasion, ought to be eligible under class B. There have been, and are, various ways in which provision has been made to grant leave to enter or remain on account of the Ukraine situation – see, for example the initial Ukraine concession, the
Homes for Ukraine Sponsorship Scheme, the
Ukraine Extension Scheme, and the
Ukraine Family Scheme. It is important to identify the basis on which leave was given and to match it to the relevant class, in order to show eligibility.
Class P – persons with limited leave to remain granted under Immigration Rules Appendix Temporary Permission to Stay for Victims of Human Trafficking or Slavery. Note that this class does not extend to those granted leave to remain under Appendix Domestic Worker who is a Victim of Modern Slavery.
Class Q – persons who: were residing in Sudan before 15 April 2023; left Sudan in connection with the violence that rapidly escalated on 15 April 2023 in Khartoum and across Sudan; and have leave to enter or remain under the Immigration Rules. Persons subject to a NRPF condition are excluded. Also excluded are those given leave to enter or remain upon a sponsor’s undertaking where resident in the CTA for less than five years (running from the later of their date of entry or date the undertaking was given), and at least one sponsor is still alive.
Class R – persons who: were residing in Israel, the West Bank, the Gaza Strip, East Jerusalem, the Golan Heights or Lebanon immediately before 7 October 2023; left one of those places in connection with the Hamas terrorist attack in Israel on 7 October 2023 or the violence that rapidly escalated in the region following the attack; and have leave to enter or remain under the Immigration Rules. Persons subject to a NRPF condition are excluded. Also excluded are those given leave to enter or remain upon a sponsor’s undertaking where resident in the CTA for less than five years (running from the later of their date of entry or date the undertaking was given), and at least one sponsor is still alive.
Disregard of certain family members
Certain family members fall to be disregarded for specific purposes in relation to an eligible applicant. Where an applicant is eligible on account of being a PSIC who falls within one of the prescribed classes now, then any family member who is a PSIC and is not eligible for assistance must be disregarded when the local housing authority is considering whether the applicant is homeless or has a priority need (HA 1996 s185(4) and (5)). In practical terms, this means that an applicant who may be homeless because their accommodation is overcrowded (and so not reasonable to continue to occupy: HA 1996 s175(3)) cannot include the ineligible person when the local housing authority assesses an issue of overcrowding, or other reason why the applicant might be homeless.
Additionally, if the applicant’s claim for priority need depends on a member of their household (who might be pregnant, be a dependent child, or be vulnerable – see HA 1996 s189(1)), then that person is disregarded if they are not eligible for assistance. Unless the applicant has a priority need through their own characteristics, or can rely on another member of the household who is eligible, then the applicant will not have a priority need.
An applicant who, immediately before 11 pm on 31 December 2020, was a national of an EEA state or Switzerland, and fell within a prescribed class at the time, and so is eligible for assistance, will fall within this provision if they have ineligible members of their household (HA 1996 s185(5)).
Practical tips
How can you find/explain status?
Checking a person’s immigration status is not always easy. Home Office grants of leave to enter or remain come in many forms. There may be a letter granting settlement/indefinite leave, a ‘no time limits’ stamp in a previous passport, a biometric residence permit (BRP), an immigration status document for those with refugee status/asylum, humanitarian protection or discretionary leave, a UK-travel document, or a digital-only status, etc. Further, the Home Office has a plan to make all forms of status exist in digital-only format. BRPs are being phased out and immigration status is to be established by a ‘view and prove’ service via a share code. It can be hard to keep up. Checking the
Home Office website (in particular, the
visas and immigration operational guidance collection and the
‘View and prove your immigration status: get a share code’ service) is the only way to stay in touch with current forms of proof but always remember that there may be older documents that are satisfactory.
The post-Brexit position of nationals of EEA member states
Anyone who is a national of an EEA member state, or a family member of an EEA national, who has been granted settled status will fall within class C above and be eligible, provided that they are habitually resident in the CTA. We will discuss habitual residence in the next article.
A national of an EEA member state, or any family member, who arrived in the UK after 31 December 2020 will generally be a PSIC and reference should be made to whether they fall into any of the classes above to ascertain whether they are eligible. That said, there are exceptions based on a connection with a family member present in the UK on or before 31 December 2020.
Nationals of an EEA member state, or any family members of an EEA national, who were resident in the UK at 11 pm on 31 December 2020 and have not been granted settled status will generally have been granted pre-settled status or be waiting for a decision on their application. Although they are PSICs, they are regulated within the category of ‘other persons from abroad’ and we discuss their eligibility in the next article.
Note that a family member of an EEA national need not themselves be an EEA national in order to be treated in the same way as EEA nationals. Family members are generally spouses, civil partners, children who are under 21 or (if older) are dependent on the EEA national, and dependent parents and parents-in-law. There is a wider class of extended family members who will need to have been issued with an EEA residence permit, registration certificate or residence card under pre-Brexit law in order to be included under post-Brexit arrangements.
Allocation of social housing
Eligibility for an allocation of social housing has the same structure as that for homelessness assistance. A PSIC is not eligible for an allocation unless they fall within a class of people prescribed at AHH(E)(E) Regs reg 3 (HA 1996 s160ZA(2)). A PSIC who does not fall within one of those classes will not be eligible.
Classes A, B, C and D at reg 3 are identical to classes A, B, C and D at reg 5 above. Class F at reg 3 is identical to class G at reg 5, and all the other classes, concluding at class Q at reg 3 (which is identical to class R) are identical to the classes at reg 5.
The eligibility requirements at HA 1996 s160ZA(2) and AHH(E)(E) Regs reg 3 apply to applicants who wish to join, or to remain, on a local housing authority’s allocation scheme. They do not apply to an existing local housing authority tenant who wishes to apply for a transfer and has a reasonable preference (HA 1996 ss159(4B) and 160ZA(5)).
The other group of people who may, or may not, be eligible for homelessness assistance and/or an allocation of social housing are other persons from abroad. We will discuss their eligibility in the next article. We will also consider the restrictions on securing accommodation under discretionary powers to certain groups of people, prescribed at Nationality, Asylum and Immigration Act 2002 Sch 3.
Restricted cases
A restricted person is a person who is not eligible for assistance, who is subject to immigration control, and who either does not have leave to enter or remain in the UK or has such leave but subject to an NRPF condition (HA 1996 s184(7)).
Where a local housing authority decides that a duty is, or would be after the authority’s duty to the applicant under HA 1996 s189B(2) (the relief duty) comes to an end, owed to the applicant under s193(2) (duty to persons in priority need who are not homeless intentionally) but would not have done so without having had regard to a restricted person, HA 1996 s184(3A) provides that the notice given to the applicant in deciding the homelessness application must inform them that the decision was reached on that basis, include the name of the restricted person, explain why the person is a restricted person, and explain the effect of s193(7AD). Section 193(7AD) provides that the local housing authority must, so far as reasonably practicable, bring their duty to an end by making a private rented sector offer (whether it is accepted or refused).
This is the first of a two-part article, the second of which will cover homelessness and allocations and ‘other persons from abroad’, and will appear in the June issue of Legal Action.