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Advising people with limited leave to remain

This page is for housing advisers. If you are a new arrival please click here for information more relevant to you.

This section looks at housing problems faced by people given limited leave to remain as workers, students, family members and visitors. It does not cover advising refugees and other people given leave through the asylum system or 'Dubs children': go to refugees and people with discretionary leave, humanitarian protection and exceptional leave to remain and advising refugees and people with discretionary leave for information about their rights and how to advise them.

For help on advising people fleeing domestic violence, go to the pages on people fleeing domestic violence or advising people fleeing domestic violence.

What are the housing and housing benefit rights of people with limited leave?

Generally, people are given limited leave in the UK to work, study, visit or join family members with the condition attached that they must be able to accommodate and support themselves without recourse to public funds. The housing and benefit eligibility regulations mirror this by excluding them from eligibility in most cases.

Some people are given limited leave to remain ’outside the immigration rules‘, i.e. exceptionally. If this leave is granted with recourse to public funds the holder is eligible for homelessness assistance and housing allocation.

Some people may get limited leave to remain based on a right to family and private life in the UK because they have lived in the UK so long or because of a relationship with a British citizen or a child who has lived in the UK for at least 7 years.  This type of leave used to be ‘discretionary’ but since 2012 is granted via the Immigration Rules Appendix FM.  It may be granted with or without recourse to public funds.  People granted limited leave to remain with recourse to public funds via Appendix FM are eligible. They became eligible on October 30th 2016 in England and June 22nd  2017 in Wales. See the law on housing eligibility for more on this. 

People with limited leave to remain can apply direct to housing associations because there are no eligibility regulations for these applications. People on short stays (visitors and some short-term students) may be refused because associations generally aim to house people intending to stay in the area for some time.

The Home Office publish guidance about recourse to public funds that explains how the rules are applied.

You can find the Immigration Rules about public funds here: this is the section of the rules that provides general definitions, and 'public funds' is defined, but at the end of the section there is a detailed clarification that also forms part of the rules.

Housing and support from social services

If a person with limited leave becomes homeless and destitute, social services may be able to accommodate vulnerable adults or families with children in certain very limited circumstances. See people with social care needs and advising people with social care needs for more on this.

Housing benefit for people whose funds have been disrupted

The right to claim HB for up to six weeks for self-supporting households that experienced a temporary disruption of their funds ended on 29th October 2013 – including for existing claims made before that date.

Benefits for people from certain European countries

People from Macedonia and Turkey are eligible for HB/CTR (as well as HB/CTR passported benefits) if they are habitually resident and have any form of leave (including leave with a ‘no public funds’ condition [2015] UKUT 438 (AAC)) or they have a right to reside as an EEA family member. However, a person who only has temporary admission and who is not an EEA family member does not qualify for HB/CTR because they do not have a right to reside: see (Yesiloz v LB Camden).

In both England and Wales, nationals of Macedonia and Turkey have no specific eligibility for homelessness assistance or for an allocation of social housing. They will only be eligible if they are refugees, or have exceptional leave or humanitarian protection, or are habitually resident in the Common Travel Area without any conditions on their leave. (The Common Travel Area consists of England, Wales, Scotland, Northern Ireland, the Republic of Ireland, the Isle of Man and the Channel Islands.)

Housing benefit for couples where one has limited leave

A member of a couple who has limited leave (and so who would be ineligible for HB/CTR if they were single) but whose partner is eligible for HB/CTR (e.g. a British Citizen) can receive HB/CTR provided that their partner makes the claim. Partner here means a spouse/registered civil partner or a person who is living with them as if they are their spouse/civil partner.

For the claim to be valid both members must provide a national insurance number (or at least to have applied for one).

Housing waiting list applications where people with limited leave are part of the household

Any eligible person can make an application as homeless or to go on the housing waiting list, but there can be complications if the application includes people who are ineligible because they have limited leave (or no leave, e.g. a couple where one member is a British Citizen and the other has limited leave).

If an eligible applicant applies to go on to the council waiting list or to enter the allocations scheme, the local authority must assess the needs of the applicant according to their allocation scheme, and give reasonable preference to certain types of applicant, which includes applications made on the grounds of overcrowding or social or medical need. As long as the applicant is eligible, other members of the household are taken into account in deciding need and reasonable preference, even if they would themselves be ineligible because of their immigration status: see R (Kimvono) v Tower Hamlets London Borough Council [2001] 33 HLR 239.

When a local authority receives an application in this type of case it must first decide who it is reasonable to treat as a member of the household and in doing so the temporary nature of a person's immigration status can be a factor it takes into account: see Ariemuguvbe. So whilst it would reasonable for the council not to include the applicant’s adult child where that child had already been living independently (Ariemuguvbe) it would be unreasonable to exclude a child that was a minor (Kimvono – see above).

Rules about who can actually apply for a housing allocation in England vary between local authority areas, because the Localism Act enables councils to set their own local rules about who can apply to be on a housing register or waiting list. Changes in the rules cannot discriminate directly or indirectly against particular nationalities or ethnic groups (for more on this see the page on what is discrimination?) The new rules will not affect homelessness assistance and do not apply to Wales.

Homeless applications where people with limited leave are part of the household

In determining priority need and homelessness, the local authority may ignore anyone in the household who is not eligible for housing.

For example, if a woman applies for homelessness assistance with her husband and stepson as her household, but both have limited leave to remain, and there are no other children or vulnerable adults in the household, then the initial decision will be that she is 'not in priority need'.

What happens next depends on the immigration status of the applicant:

  • If s/he is 'subject to immigration control' then they are offered advice and assistance but not accommodation. If s/he cannot find accommodation and is at risk of homelessness, their only option would then be to approach the social services department for assistance.
  • If s/he is 'not subject to immigration control' (because s/he is a UK or EEA national or a person with right of abode in the UK), but there other household members that are, then each household member that is subject to immigration control is a 'restricted person'.

The term ‘restricted person’ is used only to describe the ineligible family members of an applicant who is not subject to immigration control themselves. The procedure for dealing with applications is as follows:

  1. Where an eligible applicant applies as homeless but is only defined as in priority need or homeless because of the presence of a restricted person, then s/he will be offered emergency and interim accommodation.
  2. His/her application for a housing allocation should not attract any reasonable preference given to homeless applicants but should attract the reasonable preference given to people for other reasons (medical or social need, overcrowded or insanitary conditions, etc).
  3. The local authority should seek, so far as is practicable, to bring their duty towards such cases to an end by offering private accommodation (but can offer social housing if it so chooses - but if it does so the offer must bein line with its published allocations policy).
  4. The local authority must serve a notice on the applicant explaining their decision which the law says should:
    1. inform the applicant that their decision was reached on that basis
    2. include the name of the restricted person
    3. explain why the person is a restricted person, and
    4. explain the effect of the relevant legislation.

Note that the Housing (Wales) Act 2014 is not on the list of 'public funds benefits', so homelessness applications in Wales are not covered by any of the Immigration Rules on public funds. Of course people whose immigration status includes a bar on recourse to public funds will almost certainly not be eligible, but they may be part of another’s application for homelessness services. So they would not have to worry about the rules about a person barred from public funds who is included in an application. An example would be a British woman who has a husband with limited leave with no recourse to public funds. If she applies as homeless she is eligible and may be in priority need (pregnant/vulnerable/has an eligible child); if she includes the husband in application in Wales this does not count as a public funds benefit, and so it does not matter if such an application results in an increased or additional use of public funds. 

Housing and benefit applications for parents with care of an EEA child

Any EEA citizen – including a child – has the right to live in any EEA member state. In order for a child to exercise that right it follows that their parent or (carer) must also be able to live there even if that parent is not himself/herself an EEA national. 

If the child is an EEA national (but not a UK citizen where different rules apply) this is often known as a ‘Chen’ right after the case that established it. In 2012 the EEA regulations were amended to include it as a new type of ‘derivative’ right to reside but this does depend on the child being ‘self-sufficient’ although this may be based on the parent's resources and Chen parents are allowed to work.  So, like self-sufficient EEA nationals, a Chen parent may be eligible for housing and benefits but claiming some benefits may call into question the child's self-sufficiency and so their right to reside.

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Background Topics

How can we improve housing for new migrants in the UK?

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