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Eligibility for help as homeless in Wales

This content applies to Wales

Rules on eligibility for help under Part 2 of the Housing (Wales) Act 2014.

Applicable law

The eligibility rules contained in the Allocation of Housing and Homelessness (Eligibility) (Wales) Regulations 2014 govern homelessness application made on or after 31 October 2014.

Applications made before that date were governed by the Homelessness (Wales) Regulations 2006 which contained additional categories of eligible people.[1]

Regulation 5 sets out the classes of people who are subject to immigration control but are still eligible for housing assistance.

Regulation 6 sets classes of people who are not subject to immigration control but are still to be treated as persons from abroad who are ineligible for housing assistance.

The Housing (Wales) Act 2014 provides for regulations setting out the eligibility rules to be made by the Welsh Ministers or the Secretary of State.[2] The Welsh Government’s intention is to reflect consistency with UK immigration policy and related European legislation[3] and the wording of the Welsh regulations is identical to the equivalent regulations in England.[4]

Duty to assess and interim accommodation duty

Under the duty to assess, the local authority must assess whether an applicant is eligible for help.[5]

The local authority must secure that suitable interim accommodation is available where there is reason to believe that the applicant may be:[6]

Authorities are reminded that ‘having reason to believe’ is a lower test than ‘being satisfied’. If the authority is in any doubt about whether or not the applicant meets any of these criteria, then it must accept an interim duty to accommodate pending completion of its enquiries.[7]

If the applicant is found to be ineligible, they must be provided with general information and advice on preventing homelessness, securing accommodation when homeless, and accessing any other help that may be available.[8]

British and Irish citizens

British and Irish citizens are eligible for help if they are habitually resident in the Common Travel Area (ie the UK, the Channel Islands, the Isle of Man and the Republic of Ireland). They are exempt from the habitual residence requirement if they are in the UK as result of deportation or compulsory removal from another country.[9]

The Code of Guidance indicates that it is only necessary to investigate habitual residence if the applicant has arrived or returned to live in the UK during the two-year period prior to making the application.[10]

There is no statutory definition of ‘habitual residence’. It is a question of fact to be decided in light of the circumstances of each case. The most important factors to be considered are period of residence, continuity and nature of actual residence. Annex 6 of the Code provides detailed guidance and makes it clear that an applicant who is returning to the UK after a period spent abroad to resume their former period of habitual residence will be immediately habitually resident.[11]

Commonwealth citizens with right of abode

Most Commonwealth citizens are subject to immigration control and are only eligible for help if they are in a prescribed class.[12]

Commonwealth citizens with right of abode have the same rights in the UK as British citizens and are not subject to immigration control when they enter the UK.[13] They are eligible for help if they are habitually resident in the Common Travel Area.[14] The habitual resident test applies in exactly the same way as it applies to British and Irish citizens.

Newly-arrived Commonwealth citizens with right of abode may have more difficulty passing the habitual residence test because they are more likely to have been born outside the Common Travel Area and therefore less likely to be resuming a former period of habitual residence.

EEA nationals and their family members

The rules for people from the European Economic Area (EEA) have changed following the end of the Brexit transition period on 31 December 2020.

From 1 January 2021 EEA nationals are eligible for homelessness assistance if they either:

  • have settled status
  • meet the definition of a frontier worker
  • have pre-settled status and are exercising a qualifying right to reside
  • have temporary protection and are exercising a qualifying right to reside
  • are in another category of people subject to immigration control who are eligible

Qualifying rights to reside are those that make a person eligible under retained EU law.

People with EU settled status

EU settled status is a form of indefinite leave to remain. People with indefinite leave are among the categories of people subject to immigration control who are eligible.[15]

People granted settled status will be eligible for assistance if they are habitually resident in the Common Travel Area.

Frontier workers

Frontier workers are not subject to immigration control.[16]

A person who meets the definition of a frontier worker is eligible for homelessness assistance and does not need to be habitually resident.[17]

A frontier worker is an EEA national who is working or self-employed in the UK, but is not primarily resident in the UK.[18]

They must have met this definition immediately before 31 December 2020 and continuously since.

Pre-settled status

Pre-settled status is a form of limited leave to remain in the UK granted under the EU Settlement Scheme.

People with pre-settled status are not subject to immigration control for the purposes of assessing eligibility for homelessness assistance.[19] They are assessed in line with regulation 6 of the Eligibility Regulations.[20]

People with pre-settled status must meet the eligibility criteria under retained EU law at the time when they apply.[21] They are eligible if they meet the conditions for being treated as a:

  • worker or self-employed person
  • person with permanent right to reside
  • primary carer of a child in education of an EEA worker

Family members of people with pre-settled status may also be eligible regardless of nationality if they:

  • have a permanent right to reside under retained EU law
  • are a family member of an eligible EEA national with pre-settled status
  • are an economically active non-EEA national with a retained right to reside
  • are the primary carer of a child in education of an EEA worker

Temporary protection

An EEA national has temporary protection during the 'grace period' until 30 June 2021 if both of the following apply:[22]

  • they have not yet received settled or pre-settled status under the EU Settlement Scheme
  • they were lawfully resident in the UK on 31 December 2020

Lawful residence means any right to reside under EU law, including as a jobseeker or the initial three months right of residence.

People with temporary protection are eligible if they meet the eligibility criteria under retained EU law at the time when they apply.[23] They must meet the conditions for being treated as a:

  • worker or self-employed person
  • person with permanent right to reside
  • primary carer of a child in education of an EEA worker

Family members of EEA nationals may also have temporary protection.

People subject to immigration control

A person is subject to immigration control if they need leave to enter or remain in the UK, whether or not such leave has been given.[24]

People subject to immigration control are not eligible for help under any of the substantive homelessness duties unless they fall into a prescribed class under the Welsh eligibility regulations.[25]

These are:

  • refugees
  • people with exceptional leave to remain with recourse to public funds
  • people with indefinite leave to remain
  • people with humanitarian protection
  • relevant Afghan citizens granted leave
  • people granted leave outside the rules on human rights grounds
  • unaccompanied refugee children granted leave
  • people with Calais Leave

The same rules for eligibility for homelessness assistance apply in England.

Households with mixed immigration status

Where one member of a household is not eligible for help, another eligible member may be able to make a homeless application instead.

If an authority is under a duty to secure that accommodation is available for occupation, it must be available for the applicant and any person whonormally resides with the applicant as a member of their family or might reasonably be expected to reside with the applicant.[26]

A household member subject to immigration control is classed as a restricted person if they either:[27]

  • do not have leave to enter or remain (including people who have entered unlawfully or stayed on after a previous visa has expired)
  • have leave to enter or remain but the leave is subject to a ‘no recourse to public funds’ requirement (this includes people on a partner visa, work permit, visit visa or student visa)

In some cases, a restricted person can be housed under the Act as part of the household of an eligible applicant. They should seek immigration advice first, as accommodation provided under the Act counts as recourse to public funds and may affect their immigration status.

Eligible applicant is subject to immigration control

Ineligible household members must be disregarded by the authority when determining whether the applicant is homeless or threatened with homelessness, or whether they have a priority need for accommodation.[28]

This means that in some cases there could be no accommodation duty despite the presence of dependent children, a pregnant woman or other vulnerable person in the household even where there is an eligible applicant.

Eligible applicant is not subject to immigration control

Ineligible household members are not disregarded when assessing homelessness and priority need for these applicants.

However, where a final duty is owed purely because an ineligible household member confers priority need on the household, then they are a ‘restricted case’ and the authority must bring the final duty to an end with a private rented sector offer, in so far as this is reasonably practicable.[29]

Households who are ineligible for help

See Help for people from abroad for more information on statutory duties and powers to provide accommodation for:

  • unaccompanied minors
  • ineligible migrant families with children
  • ineligible adult migrants with care and support needs
  • asylum seekers and their families

Homeless applications made before 31 October 2014

The current eligibility regulations came into force on 31 October 2014 and brought the rules in Wales into line with those in England.

Prior to this date, more generous rules applied in Wales[30] and applicants who made their homeless application before 31 October 2014 have transitional protection and are covered by the old rules.[31]

This means that the following groups remain eligible if they made their homeless application prior to 31 October 2014:

  • nationals of states who have ratified the European Convention on Social and Medical Assistance (ECSMA) or the Council of Europe Social Charter (CESC) who are both habitually resident and lawfully present in the UK
  • people in receipt of income-based jobseeker’s allowance, employment and support allowance, universal credit or income support

ECSMA and CESC are reciprocal agreements regarding access to healthcare and social assistance. All EEA countries plus Macedonia and Turkey are signatories. EEA nationals would need a right to reside under the old rules because of the requirement for lawful presence but any right to reside would qualify. Turkish and Macedonian citizens are subject to immigration control and so would need to have leave to enter or remain to be lawfully present.

Right to internal review

Applicants dissatisfied with decisions of the local authority about whether they are eligible for help have a right to request a review within 21 days.

Applications made before 27 April 2015

The provisions in Part 2 of the Housing (Wales) Act 2014 apply to homelessness applications made to local authorities in Wales on or after 27 April 2015.

For the law applicable to applications made in Wales before that date, contact Shelter Cymru.

[1] reg 8 Allocation of Housing and Homelessness (Eligibility) (Wales) Regulations 2014 SI 2014/2603.

[2] para 1, Schedule 2, Housing (Wales) Act 2014.

[3] para 7.4 Code of Guidance for Local Authorities on the Allocation of Accommodation and Homelessness, Welsh Government, March 2016.

[4] see Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006 SI 2006/1294.

[5] s.62(4) Housing (Wales) Act 2014.

[6] s.68 Housing (Wales) Act 2014.

[7] R (on the application of IA) v City of Westminster Council [2013] EWHC 1273 (QB); para. 11.4 Code of Guidance for Local Authorities on the Allocation of Accommodation and Homelessness, Welsh Government, March 2016.

[8] s.60 Housing (Wales) Act 2014.

[9] reg 6 Allocation of Housing and Homelessness (Eligibility) (Wales) Regulations 2014 SI 2014/2603, as amended by Allocation of Housing and Homelessness (Eligibility) (Wales) (Amendment) Regulations 2017 SI 2017/698.

[10] para 1, Annex 6, Code of Guidance for Local Authorities on the Allocation of Accommodation and Homelessness, Welsh Government, March 2016.

[11] para 7 and Annex 6, Code of Guidance for Local Authorities on the Allocation of Accommodation and Homelessness, Welsh Government, March 2016.

[12] reg 5 Allocation of Housing and Homelessness (Eligibility) (Wales) Regulations 2014 SI 2014/2603, as amended by Allocation of Housing and Homelessness (Eligibility) (Wales) (Amendment) Regulations 2017 SI 2017/698.

[13] s.2 Immigration Act 1971.

[14] reg 6(1) Allocation of Housing and Homelessness (Eligibility) (Wales) Regulations 2014 SI 2014/2603.

[15] reg 5(c) Allocation of Housing and Homelessness (Eligibility) (Wales) Regulations 2014/2603.

[16] reg 5 The Citizens’ Rights (Frontier Workers) (EU Exit) Regulations SI 2020/1213.

[17] reg 6(2)(ab) Allocation of Housing and Homelessness (Eligibility) (Wales) Regulations 2014/2603.

[18] reg 3(1) The Citizens’ Rights (Frontier Workers) (EU Exit) Regulations SI 2020/1213.

[19] paras 5 and 6 Sch 4 The Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations 2020 SI 2020/1309.

[20] Allocation of Housing and Homelessness (Eligibility) (Wales) Regulations 2014/2603.

[21] paras 2 and 3(p) Sch 4 The Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations 2020 SI 2020/1309.

[22] see the definition of a ‘relevant person’ in reg 3(6) The Citizens’ Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020 SI 2020/1209.

[23] regs 3(3) and 11(w) The Citizens’ Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020 SI 2020/1209.

[24] s.13(2) Asylum and Immigration Act 1996; s.1 Immigration Act 1971.

[25] para 1, Schedule 2, Housing (Wales) Act 2014; reg. 5 Allocation of Housing and Homelessness (Eligibility) (Wales) Regulations 2014 SI 2014/2603.

[26] s.56 Housing (Wales) Act 2014.

[27] s.63(5) Housing (Wales) Act 2014.

[28] para 1(5)-(6), Schedule 2, Housing (Wales) Act 2014.

[29] s.76(5) Housing (Wales) Act 2014.

[30] Homelessness (Wales) Regulations 2006 SI 2006/2646.

[31] reg 8 Allocation of Housing and Homelessness (Eligibility) (Wales) Regulations 2014 SI 2014/2603.

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