Eligibility for Housing and Homelessness Assistance: Brexit, Right to Reside issues and proving status Liz Davies, Garden Court Chambers (Chair) Adrian Berry, Garden Court Chambers Sophie Caseley, Garden Court Chambers 25 June 2020 @gardencourtlaw
Allocations of Housing and Homelessness Assistance In order to secure a public sector tenancy (social housing) by way of an allocation (Part 6, Housing Act 1996) or to secure homelessness assistance (Part 7, Housing Act 1996) from a Local Authority under the Housing Act 1996, an EU Citizen must, among other things, pass an immigration/right to reside test. @gardencourtlaw
Allocations of Housing and Homelessness Assistance That test is found in the Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006 (the 2006 Regulations) (there are separate eligibility regimes for Wales, Scotland, and Northern Ireland). @gardencourtlaw
Allocations of Housing and Homelessness Assistance To be Eligible a person must either be: (1) One of a permitted Class of Persons Subject to Immigration Control (Regs 3 (Allocations),5 (Homelessness)), or (2) Another Person from Abroad with a qualifying Right to Reside (Regs 4 (Allocations), 6 (Homelessness)) @gardencourtlaw
Allocations of Housing and Homelessness Assistance Immigration (European Economic Area) Regulations 2016 SI 2016/1052 • Initial Right of Residence (Reg 13) • Extended Right of Residence (Reg 14) (Qualified persons under Reg 6 of the 2016 Regs) • Permanent Right of Residence (Reg 15) • Derivative Right of Residence (Reg 16) @gardencourtlaw
Allocations of Housing and Homelessness Assistance • Consider whether the LHA is delaying making a decision on eligibility through prolonged enquiries ( See Robinson v Hammersmith and Fulham [2006] EWCA Civ 1122) • Homelessness applications should be accepted so long as the facts are new (and not fanciful/trivial) Begum (Rikha) v Tower Hamlets LBC [2005] EWCA Civ 340 @gardencourtlaw
Allocations of Housing and Homelessness Assistance Some EU rights to reside render a person eligible without having to satisfy the ‘habitual residence’ test. Workers/self-employed ( 2006 Regs, 6 (2) (a) ) • Their family members, except for Extended Family Members (2006 Regs, 6 (2) (d) and Reg (2) (3) of 2006 • Regs) Workers/self-employed with a retained right of residence for reasons of permanent incapacity or • retirement (Reg 6 (2) (e ) of the 2006 Regs @gardencourtlaw
Allocations of Housing and Homelessness Assistance Retaining Status See the position in respect of pregnant women in employment/self-employment: St Prix v Secretary of State for • Work and Pensions Case C-507/12 (CJEU 19 June 2014) and HMRC v Henrika Dakneviciute Case C 544/18 (Sept 2019) ‘Temporarily unable to work as a result of an illness or accident’ pursuant to Reg. 6 (2) (a) of the 2016 Regs. See • Samin v Westminster City Council [2012] EWCA Civ 1468 (upheld by Supreme Court) and Moreno v Hackney LBC , Legal Action, November 2009 @gardencourtlaw
Allocations of Housing and Homelessness Assistance Other EU rights to reside render a person eligible for housing or homelessness assistance only if she also satisfies the habitual residence test (a combination of being in the UK for an appreciable period of time and having a settled intention to reside). • Thus, an EU Citizen exercising rights of residence as a Student or a Self-Sufficient basis must show also that she is habitually resident. @gardencourtlaw
Allocations of Housing and Homelessness Assistance There are also EU rights to reside that do not render a person eligible if that is her sole right to reside. For example, an EU right of residence in the UK solely as a Jobseeker or a person with the initial right of residence (first three months after arrival in the UK) does not without more render a person eligible for social housing or homelessness assistance. @gardencourtlaw
Allocations of Housing and Homelessness Assistance How does Brexit, the Withdrawal Agreement, the European Union (Withdrawal Agreement) Act 2020, and the Settled Status regime under Appendix EU of the Immigration Rules, change the picture? @gardencourtlaw
The Transition Period to 31 December 2020 At present EU Citizens and their family members are able to secure Settled Status (indefinite leave to remain/ILR) or Pre-Settled Status (limited leave to enter or remain) under Appendix EU to the Immigration Rules. @gardencourtlaw
The Transition Period to 31 December 2020 As regards eligibility for an allocation of social housing or homelessness assistance from a local authority, an EU Citizen with Settled Status/ILR, who is also habitually resident (in the UK, Channel Islands, Isle of Man, or Ireland), will be eligible because she will fall within Class C of the 2006 Regulations (Reg 3 (Allocations), Reg 5 (Homelessness)). @gardencourtlaw
The Transition Period to 31 December 2020 That she may also have a right to reside under EU law on some other basis, for example the EU Right of Permanent Residence, provides another, additional, basis for a qualifying immigration status but otherwise adds nothing, unless that status exempts the person from the habitual residence test in circumstances where the person is not yet judged to be habitually resident. @gardencourtlaw
The Transition Period to 31 December 2020 By way of example, the EU Right of Permanent Residence acquired by virtue of permanent incapacity due to an accident at work, exempts a person from satisfying the habitual residence test otherwise applied in order to be eligible for social housing or homelessness assistance. @gardencourtlaw
The Transition Period to 31 December 2020 However, Pre-Settled Status/limited leave to enter or remain is not an immigration status that by itself renders a person eligible for social housing or for homelessness assistance. In fact, as a result of amendments to the 2006 Regulations introduced by the Allocation of Housing and Homelessness (Eligibility) (England) (Amendment) (EU Exit) Regulations 2019 it is plain that this is a non-qualifying status. Anyone with Pre-Settled Status must prove some other status in order to eligible. @gardencourtlaw
The Transition Period to 31 December 2020 Those with pre-settled status will need to prove a qualifying right to reside under EU law, such as Worker status, Self-Employed status, being a family member, and so on. Moreover, when seeking an allocation of social housing or homelessness assistance it will not ordinarily be enough for such a person to produce an EEA Registration Certificate or an EEA Residence Card. (See Secretary of State for Work and Pensions v Dias [2011] EUECJ C-325/09). @gardencourtlaw
The Transition Period to 31 December 2020 To satisfy the local authority as to eligibility, the person is going to have to do more: she is going to have to prove the underlying entitlement. Thus, an EU Citizen working in the UK for two years, is going to have to prove that she is in genuine and effective work. @gardencourtlaw
The Transition Period to 31 December 2020 That she did not have to prove she was in work when she was granted Pre-Settled Status makes no difference. If she wants social housing or social assistance, she will have to do so. Pre-Settled Status may provide an immigration status that will endure after Brexit and the end of the transition period (31 December 2020) but it does not secure access to social housing or homelessness assistance. @gardencourtlaw
The Transition Period to 31 December 2020 See also R (Fratila) v Secretary of State for Work and Pensions [2020] EWHC 998 (Admin)- where it was held that it was not discriminatory, and therefore lawful, for Social Security Regulations to exclude those who have pre-settled status during the transition period from entitlement to Universal Credit. The same principle would apply when considering eligibility for homelessness assistance/housing. @gardencourtlaw
The Transition Period to 31 December 2020 In the transition period after the UK leaves the EU down to 31 December 2020, EU rights to reside in the UK will continue to be available, see sections 1 and 2 of the European Union (Withdrawal Agreement) Act 2020 amending the European Union (Withdrawal) Act 2018. Thus a person with Pre-Settled Status will be able to prove her right to reside in EU law (where she has such a right as a Worker, Self-Employed person, family member, and so on) and thus demonstrate eligibility for social housing or homelessness assistance in this period by virtue of a qualifying right to reside (remember some EU rights to reside such as Jobseeker do not render a person eligible). @gardencourtlaw
After the end of the Transition Period (after 31 December 2020) but before the Deadline for Applying for Settled Status (30 June 2021) In the period after the end of the transition period (31 December 2020) but before the deadline for applying for Settled Status (currently the end of June 2021), people with Settled Status continue to be eligible for social housing or homelessness assistance but what of those with Pre-Settled Status or no status documents? @gardencourtlaw
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