Who is eligible for housing? By Amy Lush, 12 College Place

alush@12cp.co.uk

02380 320 320

Introduction

• Eligibility for housing allocation and housing assistance

• Non-EEA nationals

• EEA nationals

• Right to Rent policy

• Who has the rent to right?

• Civil penalties

• Establishing a statutory excuse

Eligibility test

• Relevant to the following individuals:

• Persons subject to immigration control

• European nationals and their families

• People who are not “habitually resident”.

• Subject to transitional provisions, the following individuals are ineligible:

• Anyone who needs leave and does not have leave • Includes overstayers

• An individual with leave that includes the condition that they can have “no recourse to public funds”

Persons subject to immigration control

WHO?

Persons subject to immigration control • Anyone who needs leave to enter or remain in the UK,

whether or not such leave has been granted

• Those who do not need leave to enter or remain:

• British citizens

• Commonwealth citizens with a “right of abode”

• Does the individual have an endorsement in their passport?

• If not, does the individual have a “Certificate of Entitlement” from the Home Office?

• If not, advise the individual to contact an immigration practitioner

• Nationals of certain European countries who have a right to reside

• Irish nationals

“No recourse to public funds” • Types of leave can be granted on the basis that the individual will support himself

while in the UK • “Public funds” includes (paragraph 6 of the Immigration Rules):

• Housing under Parts VI and VII of the Housing Act 1996 and Part II of the Housing Act 1985

• Attendance allowance • Severe disablement allowance • Carer’s allowance • Disability living allowance • Personal independence payment • Council tax benefit • Council tax reduction • Housing benefit • Social fund payment • Child benefit • Income-based JSA • Income support • Child tax credit • Universal credit • State pension credit • Working tax credit

“No recourse to public funds”

• DOES NOT include the following benefits based on National Insurance contributions:

• Contribution-based JSA

• Incapacity benefit

• Retirement pension

• Widows benefit

• Bereavement benefit

• Guardian’s allowance

• Statutory maternity pay

• Services which do not count as “public funds” include:

• NHS treatment

• Legal Aid

• Community care services provided by Local Authorities

• Education provided by Local Authorities

Individuals subject to immigration control but eligible for housing accommodation

• Regulation 3 of the Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006:

• Note:

• Does not prevent an ineligible person who is already a social tenant from being allocated accommodation by way of a transfer

• Part VI HA 1996: does not require a housing authority to disregard ineligible members of the household when deciding on the type of accommodation to allocate. However, the authority may determine what the “household” comprises

Housing Accommodation under Part VI of the Housing Act 1996

Class A Class B Class C Class D Class F

Individuals subject to immigration control but eligible for housing assistance

Housing Assistance under Part VII of the Housing Act 1996

Class A Class B Class C Class D Class E Class F

• Regulation 5 of the Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006:

Class A: Refugees

• An individual who is recognised as a refugee in the UK and who has been granted leave on that basis

• Who is a refugee?

• Article 1A(2) of the 1951 Convention: Any person “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it”.

• Currently, refugees are granted leave for a period of 5 years and thereafter, an application for Indefinite Leave to Remain can be made

Class B: Exceptional leave to remain with no condition as to public funds • Where leave to remain is granted outside the Immigration Rules • Only applies to those who provide evidence of exceptional

compassionate circumstances or there are other compelling reasons to grant leave on a discretionary basis (Home Office Policy, Aug 13) • Includes:

• Medical cases- Article 3 of the ECHR • N v UK • GS (India) & Ors v SSHD [2015] EWCA Civ 40

• Victims of slavery, servitude and forced and compulsory labour may be eligible

• However, no longer applies to unaccompanied asylum-seeking

children who are granted Discretionary Leave until they are 17.5 years old and claims based on Article 8 • Leave is now granted under the rules and in many cases the leave will

be subject to the “no recourse to public funds” condition

Class C: Leave to enter or remain without limitation or condition • An individual with leave to enter or remain in the UK who is not

subject to any limitation or condition

• Indefinite Leave to Remain

• Must be “habitually resident” in the UK, the Channel Islands, the Isle of Man of the Republic of Ireland

• Does not include sponsored immigrants:

• Sponsored immigrants: person is given LTE or LTR in the UK on the basis of an undertaking given by someone else (the sponsor) in the UK that he will be responsible for that person’s accommodation and maintenance

• Sponsored immigrants are not eligible unless more than 5 years has passed since entry or the undertaking was given (whichever is later) or the sponsor has died

Leave to enter/remain under Appendix FM • Includes applications by: spouses, partners, children, parents,

dependents, victims of domestic violence

• Usually granted limited leave to remain for period of 30 months. When each period of leave comes to an end, individuals have to make a fresh application. After a certain period of time, a person will be eligible to apply for indefinite leave to remain (usually after 10 years)

• General rule is that leave will be subject to the “no recourse to public funds” condition

• Therefore, cannot receive homelessness assistance, housing allocation or housing benefit

Class D: Humanitarian Protection

• Humanitarian Protection is granted where an individual faces the death penalty, execution, unlawfully killing or return would expose a person to torture, inhuman or degrading treatment

• Reflects Article 3 ECHR

• Usually Humanitarian Protection is relied upon when treatment cannot be linked to a Convention reason (e.g. race, religion, nationality, membership of a particular social group or political opinion).

• Article 15(c) Qualification Directive: claims for protection on the basis of indiscriminate violence in the country of origin (e.g. situations of international or internal armed conflict)

• Individuals do not have to show they are individually being targeted

Class E: Asylum Seekers

• Any person who made a claim for asylum after 3 April 2000 will be ineligible

• Transitional provision applies: • Where claim for asylum was made before 3 April 2000

• No initial decision yet

• Caution: person may be unaware that a negative decision has been made. • Home Office should be contacted

• Eligible for homelessness and housing benefit (not for allocation of social housing)

Class F: Resettled Afghan citizens

• The Allocation of Housing and Homelessness (Eligibility) (England) (Amendment) Regulations 2014

• “Relevant Afghan citizens”: Afghans who worked directly for the UK Government in dangerous and challenging roles in Afghanistan prior to 4 June 2013

• May be granted limited leave to remain under the government’s resettlement package

Applications for the condition “no recourse to public funds” to be removed

• Criteria: • Applicant has provided satisfactory evidence that they are

destitute; or

• Applicant has provided satisfactory evidence that there are particularly compelling reasons relating to the welfare of a child on account of the child’s parent’s very low income; or

• Decision maker exercises discretion to lift the condition because the applicant has established exceptional circumstances in their case relating to their financial circumstances which, in the view of the decision maker, require the condition to be lifted.

• Critical that such an application is supported by evidence

“Habitual Residence” test

• Exempt: • Refugees and those with Humanitarian Protection and Discretionary

Leave • EEA nationals who are workers, self-employed or registered

accession state workers and their family members • EEA nationals with a right to reside permanently in the UK • People in the UK as a result of deportation, expulsion or other

removal by compulsion of law from another country to the UK

• Test: • A person must show that he or she has taken up residence and lived

for a period of time in the UK, the Channel Islands, the Isle of Man or the Republic of Ireland

• No minimum period • Central question = where is a person’s centre of interest?

• Factors: individual’s home, family ties, social connections and employment

EEA Countries • Members of EU:

• Austria

• Belgium

• Bulgaria

• Croatia (limited rights until 30th June 2018)

• Czech Republic

• Cyprus

• Denmark

• Estonia

• Finland

• France

• Germany

• Greece

• Hungary

• Ireland

• Italy

• Latvia

• Lithuania

• Luxembourg

• Malta

• Netherlands

• Poland

• Portugal

• Romania

• Slovakia

• Slovenia

• Spain

• Sweden

• Members of European Free Trade Association:

• Iceland

• Liechtenstein

• Norway

• Switzerland

EEA Nationals and Eligibility

• Only EEA nationals with a right to reside in the UK can be eligible (for homelessness assistance, social housing and housing benefit)

• Not everyone with a right to reside is eligible

• EEA nationals who have a right to reside and are eligible:

• Worker

• Self-employed person

• Family member of a worker or self-employed person

• Person with a right to reside permanently in the UK

• Person in the UK as a result of deportation, expulsion or other compulsory removal from another country to the UK

EEA Nationals: Workers and Self-employment • Have the right to reside in the UK and are eligible for homelessness

assistance, housing allocations and housing benefit

• Worker: an employed person

• No minimum period of employment

• Must be “effective and genuine economic activity” and not “purely marginal and ancillary”

• Amount of remuneration is irrelevant

• Self-employment: a person who establishes himself to pursue activity as a self-employed person

• Does not need to be “self-sufficient”

• Temporary break does not result in the loss of status (e.g. unable to find work as a self-employed person, illness or accident, pregnancy).

EEA Nationals: Involuntary unemployment • A person retains worker status if unemployed involuntary, provided:

• Has registered as a jobseeker;

• Entered the UK in order to seek work or is present in the UK seeking employment immediately after enjoying a right to reside as a worker, self-employed person, self-sufficient person or student; and

• Can provide evidence that he is seeking employment and has a genuine chance of being engaged

• If previous employment in the UK was for less than one year, the person cannot retain the status of worker for longer than six months

• Where the person has been employed for more than a year, worker status is retained indefinitely provided the person is registered as a jobseeker

EEA Nationals: Family members

• Qualified persons and their family members are entitled to reside in the UK while the relevant person remains a qualifying person

• Additional provisions: • Close family members of qualified EEA nationals and EEA

nationals with a permanent right of residence have the right to reside: • Includes: spouse/civil partner, children and grandchildren,

dependent parents and grandparents

• Extended family members may have a right to reside if: • Dependent member of the household

• Relatives requiring personal care

• Relatives who would qualify for ILR

• Co-habitees

EEA Nationals: Family members

• Family members’ rights of residence can continue in the following circumstances:

• Death or departure of qualified person

• On divorce or termination of civil partnership

• Where children are in education

EEA Nationals: Permanent Rights of Residence • Rights of permanent residence may be acquired after a minimum

period as a qualified person:

• Resided legally in the UK for a continuous period of 5 years

• Not as a right of a derivative right of residence

• Previously worked in the UK but is now retired or permanently incapacitated

• Family members of the above

• Family members of a deceased worker who was a qualifying person

• Note: it is possible to lose the right of permanent residence due to absence from the UK for a period exceeding two consecutive years

EEA Nationals: individuals with a right to reside but not eligible • The following EEA nationals have a right to reside but are generally

not eligible:

• Person with an initial “three month” right to reside

• Jobseeker • A person not currently employed but seeking work in another member

state

• Note: difference between jobseeker and former workers who are temporarily unemployed

• Must be able to “provide evidence that he is seeking employment and has a genuine chance of being engaged”

• Student • Must be enrolled to follow a course of study at a private or public

establishment listed on the Department of Education and Science Register, or an establishment financed form public funds; and

• Has comprehensive sickness insurance; and

• Assures the Home Office that he has sufficient resources not to become a burden on the social assistance system

EEA Nationals: individuals with a right to reside but not eligible • The following EEA nationals have a right to reside but are

generally not eligible:

• “Self-sufficient” person

• Sufficient resources not to become a burden on the social assistance system of the UK during the period of residence; and

• Has a comprehensive sickness insurance in the UK

• Person with a derivative right to reside under Zambrano

• Refusal of a right of residence to that primary carer would deprive the Union citizen of the substance of their European citizenship rights by forcing them to leave the EEA.

• In practice in the UK, the conditions to be met are:

• British child

• Parent not British or an EEA national

• If the child’s parent leaves the UK, the child has to leave

Right to Rent

• A landlord should not authorise an adult to occupy property as their only or main home under a residential tenancy agreement unless the adult is a British citizen, EEA or Swiss national, or has the right to rent in the UK (Section 22 of the Immigration Act 2014)

• Unlimited right to rent: • British citizens, EEA citizens and Swiss nationals • People with a right to abode in the UK, with ILR or with leave to remain in the

UK with no limit

• Time-limited right to rent: • Anyone with leave to enter or remain for a limited period of time • Qualifying family members of EEA nationals with enforceable right to reside • Note: documentary evidence will need to be provided to a landlord

• No right to rent: • Any person subject to immigration control who does not have leave to be in

the UK

Right to Rent: Civil Penalties and Establishing a Statutory Excuse • Right to Rent scheme was first implemented in part of the West

Midlands in December 2014 but the Government has recently announced its intention to expand the scheme across the UK

• Landlords who breach Section 22 may receive a civil penalty

• Three steps involved in establishing and maintaining a statutory excuse against liability for a civil penalty:

1. Conduct initial right to rent checks • Establish the adults who will live in the property as their only or main home;

• Obtain original versions of one or more of the acceptable documents for adult occupiers;

• Check the documents in the presence of the holder of the documents; and

• Make copies of the documents and retain them with a record of the date on which the check is made

Documents establishing a continuous statutory excuse

Documents establishing a continuous statutory excuse

Documents establishing a time-limited statutory excuse

Right to Rent: Civil Penalties and Establishing a Statutory Excuse

2. Conduct follow-up checks at the appropriate date if initial checks indicate that an occupier has a time-limited right to rent

3. Make a report to the Home Office if follow-up checks indicate that an occupier no longer has the right to rent • Landlord must make the report as soon as reasonably practicable after

discovering that the occupier no longer has a right to rent, and before their existing time-limited statutory excuse expires, in order to renew their statutory excuse which will last for as long as the illegal renter continues to occupy the premises

• Report must be made in writing and contain the following: • Full name of the occupier believed to have no right to rent

• Address of the premises they are occupying

• Name and contact address of the landlord

• Where relevant, the name and contact address of the agent

• Date on which the occupier first took up occupation

• Copies of the documents kept by the landlord when undertaking the initial right to rent checks in respect of the occupier

Practical Points

• Establish individual’s immigration status

• Ask for proof of identity

• Beware of the different rules applicable to EEA nationals and non-EEA nationals

• Consult immigration practitioner if necessary

• Landlords:

• Must comply with the Right to Rent policy otherwise at risk of receiving a civil penalty

• Follow the three steps and keep all relevant documentation

Useful Resources

• Immigration Rules: https://www.gov.uk/government/collections/immigration-rules

• Home Office: Code of Practice on illegal immigrants and private rented accommodation: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/376788/Code_of_Practice_on_illegal_immigrants_and_private_rented_accommodation__web_.pdf

• Housing Law Handbook (3rd Ed.), Astin D. (2015)

• If in doubt, consult an Immigration Practitioner