Eligibility for homelessness and allocation of social housing: other persons from abroad
Liz Davies KC and Adrian Berry continue their look at how immigration status affects housing rights.
‘Need to know’ is 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.
In this second part of our series of articles on eligibility for homelessness assistance and an allocation of social housing under the Housing Act (HA) 1996, we consider the position of people who are not persons subject to immigration control. They are referred to as other persons from abroad. We also consider immigration-related restrictions on the provision of homelessness interim accommodation pending review and pending appeal. Further, we mention two new classes of persons subject to immigration control now eligible for assistance.
The first article in this series (see May 2024
Legal Action 10) addressed the eligibility of persons subject to immigration control. When considering the eligibility of other persons from abroad, reference should always be made to the text of the HA 1996, the
Homelessness code of guidance for local authorities (Department for Levelling Up, Housing and Communities (DLUHC), 22 February 2018; last updated 3 May 2024), and the Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006 SI No 1294 (AHH(E)(E) Regs). This article deals with England only.
Other persons from abroad
‘Other persons from abroad’ need to be distinguished from ‘persons subject to immigration control’. The latter are those people who require leave to enter or remain in the UK under the Immigration Act (IA) 1971: those who need a grant of permission from the home secretary to be lawfully resident in the UK. ‘Other persons from abroad’ refers to everyone else. These are people who have a qualifying 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 (HA 1996 s185(3) and AHH(E)(E) Regs reg 6).
Eligibility for homelessness assistance
The eligibility of other persons from abroad for homelessness assistance is provided for at AHH(E)(E) Regs reg 6.
The scheme operates through a five-stage test, to be worked through in order:
1Is the person subject to immigration control? If so, they are excluded from consideration as an other person from abroad (HA 1996 s185(2) and AHH(E)(E) Regs reg 5).
2Do they have a right to reside in the UK, the Channel Islands, the Isle of Man or the Republic of Ireland (known as the Common Travel Area or CTA)? If so, they may be eligible (HA 1996 s185(3) and AHH(E)(E) Regs reg 6).
3Does their only right to reside fall withing a proscribed class? If so, they lack a qualifying right and are excluded from being eligible as an other person from abroad (AHH(E)(E) Regs reg 6(1)(b)).
4Do they need to satisfy the habitual residence test? If not, they are eligible (AHH(E)(E) Regs reg 6(2)).
5If they are subject to a habitual residence test, do they satisfy it? If so, they are eligible (AHH(E)(E) Regs reg 6(1)(a)).
Other persons from abroad eligible for homelessness assistance
The classes of person eligible for homelessness assistance as other persons from abroad are:
1British citizens: they must satisfy the habitual residence test, unless narrow exceptions set out below apply.
2Irish citizens: they are relieved from being subject to immigration control by the IA 1971. They must satisfy the habitual residence test unless narrow exceptions set out below apply.
3Commonwealth citizens with a right of abode: these are people with citizenship of a Commonwealth country born abroad prior to 1983 who have a relevant UK connection (eg, their mother was UK-born). They must satisfy the habitual residence test unless narrow exceptions set out below apply.
4Persons exempt from immigration control under the IA 1971: certain members of diplomatic missions and their family members, consular staff and others exempted under the Immigration (Exemption from Control) Order 1972 SI No 1613, members of home forces and certain visiting forces. They must satisfy the habitual residence test unless narrow exceptions set out below apply.
5Certain EEA nationals and their family members: they are considered separately below.
Other persons from abroad not subject to the habitual residence test
Certain classes of persons with a right to reside as other persons from abroad (British citizens, Irish citizens, etc) are exempt from having to satisfy the habitual residence test:
1Persons in the UK as a result of deportation, expulsion or other removal by compulsion of law from another country to the UK (exempt under AHH(E)(E) Regs reg 6(2)(g)).
2Persons who left Afghanistan in connection with the collapse of the Afghan government that took place on 15 August 2021 (exempt under AHH(E)(E) Regs reg 6(2)(l)).
3Persons who were residing in Ukraine immediately before 1 January 2022 and who left Ukraine in connection with the Russian invasion that took place on 24 February 2022 (exempt under AHH(E)(E) Regs reg 6(2)(m)).
4Persons who were residing in Sudan before 15 April 2023 and left Sudan in connection with the violence that rapidly escalated on 15 April 2023 in Khartoum and across Sudan (exempt under AHH(E)(E) Regs reg 6(2)(n)).
5Persons who were residing in Israel, the West Bank, the Gaza Strip, East Jerusalem, the Golan Heights or Lebanon immediately before 7 October 2023 and who 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 that rapidly escalated in the region following the attack (exempt under AHH(E)(E) Regs reg 6(2)(o)).
The habitual residence test
Whether a person is habitually resident is a question of fact for the local housing authority to decide. There are two limbs to the test: (i) has the person been present for an appreciable period of time; and (ii) are they present for a settled purpose?
In
chapter 7 (‘Eligibility for assistance’) of the
Homelessness code of guidance for local authorities, the secretary of state advises that it is likely that applicants who have been resident in the UK, the Channel Islands, the Isle of Man or the Republic of Ireland continuously during the two-year period prior to their housing application will be habitually resident. However, a period of less than two years may suffice: what constitutes an appreciable period varies from case to case and bright-line tests such as six months should not be applied (see
R (Paul-Coker) v Southwark LBC [2006] EWHC 497 (Admin)). The period could be as short as a few months. A local housing authority will need to consider prior periods of UK residence, and patterns of coming and going to and from the UK, before deciding whether the time since last UK-entry constitutes an appreciable period of time. A person who was previously habitually resident may be able to establish a resumption of such residence immediately or shortly after their return, see
Swaddling v Adjudication Officer Case C-90/97, 25 February 1999. See also
annex 1 (‘The Habitual residence test’) to the
Homelessness code of guidance.
As regards establishing ‘settled purpose’, a person’s life choices, motivations and intentions should be assessed. For example, moving for work or study, and to reside rather than stay on a temporary basis (eg, as visitor), are among the factors considered, see
Barnet LBC v Shah [1983] 2 AC 309, HL. Factors such as UK connections and future plans may also be relevant.
EEA nationals and family members of any nationality
‘EEA nationals’ means nationals of any of the EU member states, and nationals of Iceland, Norway, Liechtenstein and Switzerland.
The position of EEA nationals and their family members (who could be of any nationality) is complicated by the UK’s withdrawal from the EU. Where persons have settled status/indefinite leave (granted under Immigration Rules Appendix EU), they are persons subject to immigration control, they fall within class C (see the first part of this series of articles in the May 2024 issue of Legal Action) and are eligible where they are habitually resident.
Persons with pre-settled status/limited leave to enter or remain do not qualify as eligible by virtue of that pre-settled status alone. Instead, there is a statutory fiction applied: they must qualify as eligible under the provisions formerly made in UK law for those with qualifying EU rights to reside
as if EU law continued to apply after the end of the Brexit implementation period (11 pm on 31 December 2020). Therefore, to understand who is eligible, reference must be made to EU rights to reside in the Immigration (European Economic Area) Regulations 2016 SI No 1052 (EEA Regs).
1References in the AHH(E)(E) Regs to the EEA Regs are to be read with Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations 2020 SI No 1309 Sch 4.It is possible for EEA nationals to have a right to reside on some other basis than limited leave to enter or remain under Appendix EU (eg, limited leave as the spouse of a British citizen) and thus to have a different basis for lawful residence from which, thereafter, to seek to satisfy the criteria in the AHH(E)(E) Regs (applying the EEA Regs) to be an eligible ‘other person from abroad’.
The terms used, such as ‘jobseeker’, ‘self-employed person’, ‘worker’ and ‘family member’, have the same meaning as for the purposes of the definition of a ‘qualified person at EEA Regs reg 6.
2Which, in turn, must be interpreted in accordance with the autonomous meanings applicable in EU law prior to the end of the Brexit implementation period. ‘Frontier worker’ means a person who is a frontier worker within the meaning of Citizens’ Rights (Frontier Workers) (EU Exit) Regulations 2020 SI No 1213 reg 3.
The person must have exercised an EU right of residence
before the end of the Brexit implementation period (11 pm on 31 December 2020) and
must continue to do so, in order to fall within the personal scope of the
EU-UK Withdrawal Agreement or otherwise as provided for in Immigration Rules Appendix EU.
The following classes of persons are lawfully resident:
1EEA workers (including persons with retained worker status where temporarily unable to work through illness or accident or temporarily unemployed as provided for in the EEA Regulations). They are not subject to a habitual residence test.
3Workers are defined at EEA Regs regs 4, 5 and 6(2). They are exempt from the habitual residence test under AHH(E)(E) Regs reg 6(2)(a). 2EEA self-employed persons (including persons with retained self-employed status where temporarily unable to work through illness or accident, or temporarily unemployed as provided for in the EEA Regs). They are not subject to a habitual residence test.
4Self-employed persons are defined at EEA Regs regs 4, 5 and 6(4). They are exempt from the habitual residence test under AHH(E)(E) Regs reg 6(2)(b). 3Family members (of any nationality) of persons who are EEA workers or EEA self-employed persons (noting the exclusion of certain persons/extended family members under EEA Regs reg 7(3) who would otherwise be considered family members, see AHH(E)(E) Regs reg 2). They are not subject to a habitual residence test.
5Family members are defined at EEA Regs reg 7. They are exempt from the habitual residence test under AHH(E)(E) Regs reg 6(2)(d). 4Persons with an EU right of permanent residence. Where that right is acquired after five years’ residence under the EEA Regs, they are subject to the habitual residence test.
6Permanent residence is defined at EEA Regs reg 15. They are subject to the habitual residence test under AHH(E)(E) Regs reg 6(1)(a). Where it is acquired under the special provision for acquisition in less than five years under the EEA Regs (eg, where permanently incapacitated or where reaching retirement age), they are not subject to the habitual residence test.
7They are exempt from the habitual residence test under AHH(E)(E) Regs reg 6(2)(e). 5EEA nationals with a right to reside as students under the EEA Regs. They are subject to the habitual residence test.
8Students are defined at EEA Regs reg 4. They are subject to the habitual residence test under AHH(E)(E) Regs reg 6(1)(a). 6EEA nationals with a right to reside as self-sufficient persons under the EEA Regs. They are subject to the habitual residence test.
9Self-sufficient persons are defined at EEA Regs reg 4. They are subject to the habitual residence test under AHH(E)(E) Regs reg 6(1)(a). 7Family members (of any nationality) of EEA national students or self-sufficient persons. They are subject to the habitual residence test.
10Family members are defined at EEA Regs reg 7. They are subject to the habitual residence test under AHH(E)(E) Regs reg 6(1)(a). 8Persons with a derivative right of residence as provided for in EEA Regs reg 16 and arising as a result of the exercise of free movement rights (eg, the primary carer of the child of a former worker). They are subject to the habitual residence test.
11Derivative rights to reside are at EEA Regs reg 16. Those with derivative rights to reside are subject to the habitual residence test under AHH(E)(E) Regs reg 6(1)(a). 9Persons who are frontier workers (eg, where not primarily UK residents but working in the UK). They are not subject to a habitual residence test.
12Frontier workers are defined at Citizens’ Rights (Frontier Workers) (EU Exit) Regulations 2020 reg 3. Exemption from the habitual residence test is at AHH(E)(E) Regs reg 6(2)(j). 10Persons who are family members of such frontier workers and who have a right to reside by virtue of having been granted limited leave to enter or remain/pre-settled status in the UK under Immigration Rules Appendix EU. They are not subject to a habitual residence test.
13Frontier workers are defined at Citizens’ Rights (Frontier Workers) (EU Exit) Regulations 2020 reg 3. Exemption from the habitual residence test is at AHH(E)(E) Regs reg 6(2)(k). EEA nationals who have rights under the EU-UK Withdrawal Agreement can be joined by family members (eg, spouses, civil and unmarried partners, dependent children, etc) who are currently living outside the UK
if the relationship existed
prior to 11 pm on 31 December 2020
and still exists when the family member wishes to join the EEA national in the UK.
14The family member concerned has three months from their date of arrival to apply for leave under Immigration Rules Appendix EU.EEA nationals who arrived on or after 11 pm on 31 December 2020 and who have no rights arising under the EU-UK Withdrawal Agreement or otherwise under Immigration Rules Appendix EU will need to secure lawful entry and residence as persons subject to immigration control.
15They will be eligible if they fall within one of the classes of persons prescribed as eligible at AHH(E)(E) Regs reg 5, see the first part of this series of articles in the May 2024 issue of Legal Action.Non-qualifying rights to reside
Certain persons not subject to immigration control who have specific rights to reside are expressly excluded from eligibility. These non-qualifying rights to reside are:
1Where the only right to reside in the UK is as an EEA jobseeker or family member of a jobseeker.
16Jobseekers are defined at EEA Regs reg 6. Family members are defined at reg 7. The proscription of non-qualifying right to reside is at AHH(E)(E) Regs reg 6(1)(b)(i). 2Where the only right to reside in the UK is the EEA initial right of residence not exceeding three months.
17The initial right of residence is at EEA Regs reg 13. The proscription of non-qualifying right to reside is at AHH(E)(E) Regs reg 6(1)(b)(ii). 3Where the only right of residence is a derivative right of residence under EEA Regs reg 16(5) (as a person who is the primary carer of a British citizen otherwise unable to remain in the UK, so-called
Zambrano cases
18Ruiz Zambrano v Office national de l’emploi (ONEm) Case C-34/09, 8 March 2011; July 2011 Legal Action 41; see also September 2011 Legal Action 23.).
19The derivative right to reside is at EEA Regs reg 16(5). The proscription of non-qualifying right to reside is at AHH(E)(E) Regs reg 6(1)(b)(iii). 4Where the only right to reside in the Channel Islands, the Isle of Man or the Republic of Ireland is a right equivalent to one mentioned in 1–3 above.
20AHH(E)(E) Regs reg 6(1)(c). In determining whether a person has only a non-qualifying EU right of residence of the sort mentioned above, pre-settled status (limited leave to enter or remain under Immigration Rules Appendix EU) is disregarded.
Immigration-related exclusion of interim accommodation for persons seeking homelessness assistance
Notwithstanding the seemingly comprehensive regulation of eligibility by and under the AHH(E)(E) Regs, as regards those seeking homelessness assistance under HÀ 1996 Part 7, yet more immigration-related restrictions have been imposed by Nationality, Immigration, and Asylum Act (NIAA) 2002 s54 and Sch 3 in respect of interim accommodation. Sch 3 seeks also to regulate access to community care, Children Act 1989 and asylum support assistance, which are not of concern here.
By NIAA 2002 Sch 3, a person is ineligible for accommodation under HA 1996 s188(3) (power to accommodate pending a review) or s204(4) (power to accommodate pending an appeal to the county court) where they fall within a class proscribed in Sch 3. The principal class of persons affected, who are eligible but to whom accommodation under those powers is restricted, is persons with refugee status abroad, and their numbers are likely to be small. The exclusion does not apply to children, nor to the extent that exercise of the power to provide interim accommodation is necessary for the purpose of avoiding a breach of a person’s rights under the
European Convention on Human Rights. In the result, these provisions are unlikely to trouble practitioners in their casework.
Eligibility for an allocation of social housing
Eligibility for an allocation of social housing has the same structure as that for homelessness assistance. Other persons from abroad will not be eligible for an allocation unless they have a right to reside in the CTA, the right to reside does not fall within a proscribed class, and they either satisfy the habitual residence test or are exempt from it. The details are at AHH(E)(E) Regs reg 4 (which mirrors reg 6). Guidance is at
chapter 3 (‘Eligibility and qualification’) of and
annex 2 (‘Habitual residence’) to
21HA 1996 s160ZA(4) and AHH(E)(E) Regs reg 4. the
Allocation of accommodation: guidance for local authorities (DLUHC, 29 June 2012; last updated 27 October 2023).
The eligibility requirements at HA 1996 s160ZA(4) and AHH(E)(E) Regs reg 4 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) HA 1996).
New additions to classes of persons subject to immigration control who are eligible for assistance
Two new classes of persons have been added to the classes of persons subject to immigration control who are eligible for homelessness assistance as set out in the first article in this series (see May 2024
Legal Action 10). The changes are made by the Allocation of Housing and Homelessness (Eligibility) (England) and Persons Subject to Immigration Control (Housing Authority Accommodation and Homelessness) (Amendment) Regulations 2024 SI No 647 and come into force on 7 June 2024, 21 days after they were laid before parliament on 17 May 2024.
•Class S – persons who have indefinite leave to enter under Immigration Rules Appendix Victim of Domestic Abuse , being victims of transnational marriage abandonment.
•Class T – persons who have limited leave to enter or limited leave to remain and who, after making a change of conditions application, have had their no recourse to public funds condition lifted by the Home Office, and who do not fall within class G (those granted leave on human rights grounds who are already eligible) or class L (those granted leave under Appendix Hong Kong British National (Overseas)).
Equivalent provision has been made for those eligible for an allocation of housing accommodation.
The third of this series of articles will cover immigration law in the landlord and tenant context.