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Persons eligible for assistance: non EEA/EU

This content applies to England

Persons subject to immigration control who are eligible for assistance under the homelessness legislation.

The following groups of people subject to immigration control are eligible for housing assistance under Part 7 of the Housing Act 1996.[1] They are exceptions to the general rule that a person subject to immigration control is not eligible.

For information about the assistance available to persons subject to immigration control who are not eligible under homelessness legislation, see Ineligible migrants.

Class A: Refugees

A person who is recorded by the Home Office as a refugee and who has leave to enter or remain in the UK is eligible for assistance, regardless of whether s/he has limited or indefinite leave.[2]

On being granted refugee status, a person is usually granted five years' limited leave to remain and then, at the end of the five years, s/he will be considered for indefinite leave to remain (ILR).[3]

Note that if an asylum seeker wins an asylum appeal and an immigration judge finds that the asylum seeker is a refugee under the Geneva Convention,[4] the asylum seeker does not become eligible until the Home Office has accepted the decision and issued the necessary documents.

Class B: People with exceptional leave to enter or remain

A person granted exceptional leave to enter or remain in the UK outside the immigration rules is eligible as long as the leave is not subject to a condition requiring her/him to maintain and accommodate her/himself (and any person who is dependent on her/him) without recourse to public funds.[5]

Prior to 1 April 2003, the Home Office could grant exceptional leave to remain (ELR) to asylum seekers who were not given full refugee status. ELR was leave granted outside the Immigration Rules (the Immigration Rules are rules laid down in accordance with section 3(2) of the Immigration Act 1971), and was sometimes referred to as 'leave granted outside the rules' (LOTR).

In April 2003, ELR was replaced by 'humanitarian protection' and 'discretionary leave'. A person granted humanitarian protection is eligible under Class D (see below). Class B now comprises only persons granted discretionary leave to remain outside the immigration rules, including persons who are granted the 'destitution domestic violence concession'.

Destitution domestic violence (DDV) concession

From 1 April 2012, the Home Office can grant a DDV concession to people:

  • who entered the UK as the partner (ie spouse, civil partner, unmarried or same sex partner) of a British citizen or a person settled in the UK
  • whose relationship has broken down due to domestic violence
  • who are destitute without access to accommodation or the means to support themselves, and
  • who are going make an application for ILR under the domestic violence rule.

In order to qualify for a DDV concession, it is essential that the applicant entered the UK as the partner of a settled person in the UK (ie British national or person with ILR). The Court of Appeal confirmed that a woman who entered the UK as the spouse of a person who had been granted only limited leave to remain as a refugee was not entitled to the benefit of the concession.[6]

The DDV Concession gives three months' limited leave with access to public funds whilst UKVI considers the application for permanent leave to remain. Further information is available from UKVI.

An individual with the DDV Concession will fall within Class B of persons subject to immigration control who are eligible for housing assistance.

Class C: Indefinite leave to remain

A person with ILR (also known as settlement, or settled status) is not subject to any limitation or condition on her/his leave to remain in the UK. An applicant with ILR who is habitually resident in the Common Travel Area is eligible for assistance.[7]

An exception is a sponsored immigrant with ILR who will not be eligible for assistance unless:

  • s/he has been in the Common Travel Area for more than five years since her/his date of entry to the UK or the date of the sponsor's undertaking, whichever is later, or
  • her/his sponsor has died.

A sponsored immigrant has been granted leave to remain or enter on the basis of undertaking from a sponsor, usually a relative. A formal written sponsorship undertaking must have been given 'in pursuance of the immigration rules', ie it must be a specific condition of entry that the person seeking to come to the UK should be maintained and accommodated without recourse to public funds. Where informal statements have been made or assurance given, this is not sufficient to exclude the applicant from homelessness assistance.

Class D: Humanitarian protection

A person who has been granted humanitarian protection under the immigration rules is eligible.[8]

Humanitarian protection is granted to people who are not recognised as refugees, but the Home Office does not think it safe for them to return to their country of origin.

See Positive asylum decision for more information about people who are in class A, B or D.

Class E: abolished

Class E previously made certain asylum seekers eligible. It was abolished on 30 October 2016.[9] No asylum seekers will now be eligible for homelessness assistance.

Class F: Relevant Afghan citizens

From 31 March 2014, 'relevant' Afghan citizens who have been granted limited leave to enter the UK under para 276BA1 of the immigration rules and who are habitually resident in the Common Travel Area are eligible for homelessness assistance.[10] This provision is intended to benefit those Afghan citizens who have worked in Afghanistan for the UK government.

Class G: leave granted under Article 8 Human Rights Convention

A person granted limited leave to enter or remain in the UK on the grounds of 'respect for family or private life' under Article 8 of the Human Rights Convention is eligible under this category if:[11]

  • the leave has been granted under under para 276BE(1), para 276DG or Appendix FM of the Immigration Rules, and
  • the person is not subject to a 'no recourse to public funds' condition - ie a condition requiring them to maintain and accommodate themselves, and any person who is dependent upon them, without recourse to public funds.

This class corrects an anomaly which left persons whose right to remain under Article 8 was granted within the Immigration Rules not eligible under Class B - as Class B only applies to leave granted outside the Immigration Rules.

Minimum financial requirements

The Supreme Court[12] held that the provisions in Appendix FM to the immigration rules imposing financial minimum requirements on British nationals (and people otherwise settled in the UK) wanting to be joined by their non-EEA partners[13] (ie spouses, civil partners, fianc├ęs(es) or proposed civil partners, or persons who have been living together in a relationship akin to a marriage or civil partnership for at least two years prior to the date of application) are, in principle, not incompatible with the Convention on Human Rights or otherwise unlawful; however the guidance to entry clearance officers on their application to individual cases requires amendment to ensure that:

  • the children's best interest is always treated as primary consideration, and
  • when appropriate, the financial resources of the non-EEA partners, and the support from third parties, can be taken into account.

Appendix FM and the Immigration Rules have been amended accordingly to give effect to the Supreme Court judgment with effect from 10 August 2017.[14]

Class H: leave granted to unaccompanied refugee children relocated to the UK

Immigration Act 2016 requires arrangements to be made for a number of unaccompanied asylum-seeking children to be resettled and supported in the UK. 

From 6 July 2018, children resettled in the UK under this provision will be considered for ‘section 67 Immigration Act 2016 leave’, unless already granted refugee status or humanitarian protection.[15] From 9 July 2018, where a person has been granted ‘section 67 Immigration Act 2016 leave’ and is habitually resident in the Common Travel Area, s/he will be eligible for assistance.[16]

MHCLG have written a letter to Chief Executives, Chief Housing Officers and Chief Officers for Children's services of local authorities to explain the provisions of this paragraph of the immigration rules and the implications for eligibility.

Class I: persons with 'Calais leave'

As part of the clearance of the Calais migrant camp in 2016, more than 500 children were brought to the UK to reunite with family members. Some of these were granted a special 'Calais leave' under the Immigration Rules. From 1 November 2018 people who have been granted 'Calais leave' are eligible for assistance, as long as they are habitually resident in the Common Travel Area.[17]

Family members of EEA nationals

A non-EEA national who is the family member of an EEA national with a right to reside in the UK is not a class of person subject to immigration control who is re-included as eligible for housing assistance under the regulations. However, such a person may acquire the right to reside and be eligible for housing assistance. For information see the page Family of workers and self-employed.

Wales

The legislative references and the footnotes on this page reflect the law in England. In Wales, very similar rules made under Welsh legislation apply, but the references may be different. Contact Shelter Cymru for more information about the law in Wales.

[1] reg 5 Allocation of Housing and Homelessness (Eligibility) England Regulations 2006 SI 2006/1294, as amended; para 7.12 Homelessness Code of Guidance, MHCLG, Feb 2018.

[2] reg 5(1)(a) Allocation of Housing and Homelessness (Eligibility) England Regulations 2006 SI 2006/1294.

[3] para 339R Immigration Rules, UKVI.

[4] Convention relating to the Status of Refugees 1951, United Nations.

[5] reg 5(1)(b) Allocation of Housing and Homelessness (Eligibility) England Regulations 2006 SI 2006/1294.

[6] R (on the application of T) v Secretary of State for the Home Department [2016] EWCA Civ 801.

[7] reg 5(1)(c) Allocation of Housing and Homelessness (Eligibility) England Regulations 2006 SI 2006/1294.

[8] Allocation of Housing and Homelessness (Eligibility) England Regulations 2006 SI 2006/1294, as amended.

[9] reg 2(4) Allocation of Housing and Homelessness (Eligibility) (England) (Amendment) Regulations 2016 SI 2016/965.

[10] reg 5(1)(f) Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006 SI 2006/1294 inserted by reg 2(5)(c) Allocation of Housing and Homelessness (Eligibility) (England) (Amendment) Regulations 2014 SI 2014/435.

[11] reg 5(1)(g) Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006 SI 2006/1294 inserted by reg 2(4)(c) Allocation of Housing and Homelessness (Eligibility) (England) (Amendment) Regulations 2016 SI 2016/965.

[12] R (on the applications of MM (Lebanon) and others) v Secretary of State and another [2017] UKSC 10.

[13] See para E-ECP.3.1-3.4, Immigration Rules, Appendix FM: family members.

[14] See Statement of Changes to Immigration Rules HC 290.

[15] s.67 Immigration Act 2016; see Statement of Changes in Immigration Rules HC1154, UKVI, 15 June 2018.

[16] reg 5(1)(h) Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006 SI 2006/1294 as inserted by reg 2(3) Allocation of Housing and Homelessness (Eligibility) (England) (Amendment) Regulations 2018 SI 2018/730.

[17] See Statement of Changes in Immigration Rules HC1534, UKVI, 11 October 2018; reg 5(1)(i) Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006 SI 2006/1294 as inserted by reg 4 Allocation of Housing and Homelessness (Eligibility) (England) (Amendment (No.2) Regulations 2018 SI 2018/1056.

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