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Wales: eligibility for help

This content applies to Wales

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

Eligibility for homelessness assistance concerns immigration and residence status.

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 authority must assess whether an applicant is eligible for help.[5]

The 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, s/he 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 will be 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 her/his former period of habitual residence will be immediately habitually resident.[11]

See Habitual residence test for further detail including relevant case law on habitual residence.

EEA and Swiss nationals and their family members

An European Economic Area (EEA) or Swiss national will be eligible for help if s/he:[12]

  • has a qualifying right to reside in the UK, and
  • is habitually resident in the Common Travel Area or exempt from this requirement.

Family members of EEA or Swiss nationals may also be eligible for help on the same basis irrespective of their nationality.

Right to reside under EU law

The rights of free movement for European Union (EU) citizens are enshrined in the Treaty on the Functioning of the European Union (TFEU). The Citizenship Directive defines and qualifies the rights to reside within the territory of member states.

See European Union law for more information on:

  • EU legislation (Regulations and Directives)
  • supremacy of EU law over domestic law where the two are incompatible
  • scope of EU law.

The Citizenship Directive is implemented in the UK legislation by the Immigration (EEA) Regulations, which extend EU rights of residence to citizens of Iceland, Liechtenstein and Norway (which, collectively with the EU, make up the EEA) and to Swiss nationals. Nationals of these non-EU countries have the same right as EU nationals.

Qualifying rights to reside

The following classes of people have a qualifying right to reside and are eligible for help:[13]

  • EEA workers and self-employed people
  • family members of the above or with a retained right of residence
  • people with a permanent right to reside
  • people with a derivative right to reside as the primary carer of a child of a former EEA worker where the child is in education in the UK (‘Baumbast carers’).

It should be noted that the term ‘worker’ is not defined in the Treaty or the Citizenship Directive and has been the subject of extensive case law. Some EEA nationals who are working may not be classed as workers and conversely some who are not working may have retained worker status or have acquired an alternative qualifying right to reside. See Persons eligible for assistance for more information.

Non-qualifying rights to reside

EEA nationals and their family members are excluded from eligibility for help under the regulations if their only right to reside in the Common Travel Area is:[14]

  • an initial right to reside for up to three months
  • an extended right to reside as a jobseeker or as the family member of a jobseeker
  • a derivative right to reside as a ‘Zambrano carer’.

It should be noted that the term ‘jobseeker’ relates to the right to reside under EU law. Many EEA nationals may be seeking work and claiming jobseeker's allowance but still have a qualifying right to reside in the UK under EU law.

See Persons ineligible for assistance for more information on:

  • the definition of a jobseeker under the Immigration (EEA) Regulations 2006
  • ‘Zambrano carers’
  • self-sufficient EEA nationals and EEA students who are required to have sufficient resources not to become a burden on the social assistance system.

No right to reside

EEA and Swiss nationals with no right to reside in the UK under EU law are subject to immigration control.[15] However they will usually have entered the UK under EU law because they will have had an initial right to reside for up to three months.

People subject to immigration control are only eligible for help if they fall into a prescribed class (see below).[16]

Habitual residence of EEA nationals

EEA workers and self-employed people, and their family members, are exempt from the requirement to be habitually resident and will be eligible for help even if newly-arrived in the UK.[17]

Most other EEA nationals with a qualifying right to reside will be subject to the habitual residence test but will pass this requirement without problems because of their length of time in the UK.

Commonwealth citizens with right of abode

Most Commonwealth citizens are subject to immigration control and will only be eligible for help if they are in a prescribed class (see below).[18]

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.[19] They will be eligible for help if they are habitually resident in the Common Travel Area.[20] The habitual resident test applies in exactly the same way as it applies to British and Irish citizens, but newly-arrived Commonwealth citizens with right of abode may have more difficulty passing the 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.

People subject to immigration control

A person is subject to immigration control if s/he needs leave to enter or remain in the UK, whether or not such leave has been given.[21]

Non-EEA nationals will be subject to immigration control unless they are:

  • Commonwealth citizens with right of abode, or
  • family members of an EEA national exercising free movement rights.

EEA nationals are subject to immigration control if they have no right to reside in the UK under EU law.

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.[22] For more information about prescribed classes of people subject to immigration control who are re-included as eligible for housing assistance see Persons eligible for assistance: non EEA/EU.

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 who:[23]

  • normally resides with the applicant as a member of their family, or
  • might reasonably be expected to reside with the applicant.

A household member subject to immigration control is classed as a ‘restricted person’ if s/he:[24]

  • does not have leave to enter or remain (including people who have entered unlawfully or stayed on after a previous visa has expired, as well as EEA nationals with no right to reside), or
  • has 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 (see below) but ideally s/he 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 non-EEA national 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 s/he has a priority need for accommodation.[25]

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 British, EEA national or Commonwealth citizen with right of abode

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.[26]

See Households with eligible and ineligible members for more information on:

  • circumstances in which a person’s eligibility for help could change
  • whether immigration and residency status of household members affects eligibility for an allocation under Part 6 of the Housing Act 1996.

Ineligible households

See Help for ineligible migrants in Wales 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.

See Support from UKVI for more information on accommodation and subsistence support for 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[27] and applicants who made their homeless application before 31 October 2014 have transitional protection and are covered by the old rules.[28]

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 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.

[13] 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.

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

[15] Barnet LBC v Ismail and Abdi [2006] EWCA Civ 383.

[16] 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.

[17] reg 6(2) 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.

[18] 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.

[19] s.2 Immigration Act 1971.

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

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

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

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

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

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

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

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

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

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