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CIH Scotland

Housing advisers


The law on housing eligibility

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

The Housing (Scotland) Act 1987 is the main framework for housing allocations and the provision of homelessness services in Scotland.

Housing allocations

Section 19 (1) of the act (as amended) establishes that anyone aged 16 or over has a right to be admitted to a housing list. The allocation of housing, however, is governed by further rules:

  • reasonable preference must be given to certain people in housing need (defined in section 20 of the Act)
  • the Immigration and Asylum Act 1999 specifies (section 118) that:

    'Housing authority accommodation

    (1) Each housing authority must secure that, so far as practicable, a tenancy of, or licence to occupy, housing accommodation provided under the accommodation provisions is not granted to a person subject to immigration control unless:
     
    (a) he is of a class specified in an order made by the Secretary of State...'

So 'people subject to immigration control' cannot be given new tenancies unless they are in a class specified by the relevant order (pdf). 

Homelessness services

Part II of the Housing (Scotland) Act 1987 (as amended) sets out the powers and duties of local authorities in dealing with applications from people seeking help on the grounds that they are homeless or threatened with homelessness.

Again, any offers of accommodation, whether temporary or permanent, are subject to the two statutory instruments above, which exclude many people subject to immigration control.

Eligible classes
The regulations, as amended, allow the following classes of people to be made an allocation of housing or offered accommodation as homeless:

  • Class A - a person recorded by the Secretary of State as a refugee within the definition in Article 1 of the Refugee Convention.
  • Class B - a person:
    (i) who has been granted by the Secretary of State exceptional leave to enter or remain in the United Kingdom outside the provisions of the immigration rules; and
    (ii) whose leave is not subject to a condition requiring him to maintain and accommodate himself, and any person who is dependent on him, without recourse to public funds.
  • Class BA - a person who has humanitarian protection granted under the immigration rules.
  • Class C - a person who has current leave to enter or remain in the United Kingdom which is not subject to any limitation or condition and who is habitually resident in the Common Travel Area, other than a person:

(i) who has been given leave to enter or remain in the United Kingdom upon an undertaking given by another person (his 'sponsor') in writing in pursuance of the immigration rules to be responsible for his maintenance and accommodation;
(ii) who has been resident in the United Kingdom for less than five years beginning on the date of entry or the date on which the undertaking was given in respect of him, whichever date is the later; and
(iii) whose sponsor or, where there is more than one sponsor, at least one of whose sponsors, is still alive.

  • Class D - a person who left the territory of Montserrat after 1st November 1995 because of the effect on that territory of a volcanic eruption.
  • Class FA - Unaccompanied ‘Dubs children’ stranded in Europe and their dependants, get leave via section 67 of the Immigration Act 2016 from July 6th 2018.

The regulations also allow allocations to be made to existing secure tenants and to students occupying hard-to-let accommodation under special arrangements, and homelessness accommodation to be provided to certain asylum seekers who made applications before April 2000 (none of whom appear to now exist).

European nationals and others covered by European law

Citizens of EEA countries and their family members may be either 'subject to immigration control' or 'not subject to immigration control'. If they have a right to reside in the UK, they are regarded as 'not subject to immigration control' and there are no restrictions whatsoever on offering them a housing allocation or homelessness service.

If they have no right to reside, then they are covered by the two statutory instruments above, and so cannot be made an allocation unless they fit into an eligible class, which is unusual (although some may, for example, have got refugee status or indefinite leave to remain before their country of citizenship became a member of the EU).

There are disputed legal issues about the 'right to reside' which are being discussed between the relevant EU commissions and the UK government and also the subject of various cases approaching the European Court of Justice. If dealing with a case where this may be an issue (for example, about whether a self-sufficient person loses their right to reside if they need homelessness assistance), get specialist legal advice or contact the AIRE centre.

On 8 November 2012, the EEA regulations were amended to cover people who are sole carer/s for a UK citizen child who would otherwise not be able to stay in the UK (new regulation 15A(4A), also known as a ’Ruiz Zambrano’ right to reside).  These people are also eligible for a housing allocation and homelessness services in Scotland.

Homelessness applications by 'mixed' families

If an application is made by a household where one member (or more) is eligible but one or more of their household members is not, two possibilities arise:

  • If the eligible applicant is subject to immigration control (i.e. falls within one of the eligible classes above) s/he cannot rely on the ineligible household member(s) to be considered as homelessness (Immigration and Asylum Act 1999 s119(1),(1A) as amended by Housing and Regeneration Act 2008 schedule 15 paragraph 22).  This usually applies when the applicant is homeless because she or he has nowhere s/he can live together with the other members of their household, usually called a ‘split family’.
  • If the eligible member is not subject to immigration control (i.e. usually a UK or EEA citizen with a right to reside), then the ineligible member is a ‘restricted person’ and a special procedure applies to these types of application.

In the second instance if the applicant is only defined as homeless due to the presence of a restricted person then s/he must be offered permanent accommodation. The local authority can discharge this duty by providing social housing or by making an offer of private rented accommodation for at least 12 months. Once the offer is made the duty is discharged whether or not the applicant accepts it, provided that s/he has been informed of:

  • the possible consequence refusing it, and
  • his/her right to request a review.

(Housing (Scotland) Act 1987 s.31, as amended by Housing and Regeneration Act 2008 schedule 15, paragraph 12). You can find more information on the page about mixed households

More information

The Scottish Code of Guidance on homelessness is unfortunately out of date on the issue of eligibility. It can be found here.

The Scottish Government publishes a web-based practice guide on allocations which is aimed mainly at local authorities and other social landlords.  The COSLA Strategic Migration Partnership also has a toolkit for local authorities on establishing migrants’ access to benefits and public services.

Background Topics

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

A Housing Practitioners' Guide to Integrating Asylum Seekers & Refugees

A Housing Practitioners Guide to Integrating Asylum Seekers and Refugees

Published by the Scottish Refugee Council with support from CIH Scotland

Chartered Institute of Housing Scotland