Contents:
- What are the housing and benefit rights of British and Irish citizens?
- Proving nationality: housing and homeless applications
- Other forms of British nationality
- Partners of British citizens
- Family members of a person from Northern Ireland
- British children or dependant adults with ‘Zambrano’ carers
- Housing and homelessness applications from mixed households
- Passing the habitual residence test
What are the housing and benefit rights of British and Irish citizens?
This page looks at common housing problems faced by British and Irish citizens when accessing housing, homelessness services or housing benefit. The page on British and Irish citizens explains their general rights. Here we look at some potential problems with housing and housing benefit applications.
Proving nationality: housing and homeless applications
No specific documents are required to apply for an allocation of housing or homelessness assistance but the local authority may require evidence of identity and/or evidence of nationality where the application is from a mixed household.
Where the council has ‘reason to believe’ that an applicant for homelessness services is eligible and is unintentionally homeless, a duty to accommodate while further enquiries are made is triggered (s29 Housing (Scotland) Act 1987). The requirement for a ‘reason to believe’ is a lower test than ‘being satisfied’. There is no requirement whatsoever for an applicant to produce evidence of nationality. Once the applicant is in emergency housing, the authority must give the applicant reasonable time and assistance to provide any proofs of eligibility needed. The applicant must co-operate with the authority in this (for example, by giving permission for the authority to contact the Home Office if necessary, or by providing the details and information needed). The authority must always act reasonably, for example, in setting time limits for proofs to be provided, assisting the applicant to get those proofs, and in believing the applicant they are otherwise credible and there appears to be good reason for being unable to produce other proofs.
For those born before 1 January 1983, proof of birth in the UK is proof enough of citizenship. For those born in the UK after that date, proof of citizenship or settled status of either parent plus proof of birth in the UK should be enough. If the applicant is in receipt of benefits, the DWP may have copies of documentation provided for the claim.
The 'right to rent' checks that apply in England for private rented housing do not yet apply in Scotland (but may be brought into force at some stage, and in Scotland will apply to many housing association tenancies too). So for the time being anyone can apply for such tenancies without documentation even if other members of their household are not British.
Other forms of British nationality
People with other forms of British nationality apart from citizenship are treated in the same way for UC/HB/CTR as any other non-UK nationals – they are excluded unless they have leave (indefinite or limited) with access to public funds and are habitually resident.
People from Hong Kong with a British National (Overseas) visa (30 months or five years) who are destitute or at imminent risk destitution can apply to lift the 'no public funds' condition, and if it is lifted they have access to UC/HB/CTR but not to local authority housing or homelessness assistance until they get indefinite leave.
Partners of British citizens
The partner of a British citizen who has limited leave whose relationship has broken down due to domestic violence can apply for leave outside the immigration rules under the destitution domestic violence concession which will allow them to claim UC/HB/CTR for up to three months (ADM para C1674-76, HB circular U2/2012). The purpose is to allow the survivor enough time to make an application to settle in the UK.
Family members of a person from Northern Ireland
A ‘family member’ of ‘a person from Northern Ireland’ can apply to the EU Settlement Scheme for EU settled status or pre-settled status. A family member is a person from a non-EEA state who is the spouse/civil partner or dependent direct relative of a person born in Northern Ireland, or a dependent direct relative of his or her spouse/civil partner. ‘Dependent’ means financially dependent or a person aged under 21.
A family member with EU settled status is entitled to help with housing and benefits provided s/he is habitually resident.
From 24 August 2020, a family member with pre-settled status is entitled to housing/homelessness assistance in Scotland (allocations Class FB), if the person from Northern Ireland they accompany is an EEA worker, retained worker or self-employed person (or would have if s/he was an EEA national). The same rule applies to UC/HB, but in this case the family member is also entitled if s/he is habitually resident and the person from Northern Ireland they accompany has (or would have if s/he was an EEA national) any kind of right to reside other than as a jobseeker, Zambrano carer or for the first three months' residence in the UK.
British children or dependant adults with ‘Zambrano’ carers
A ‘Zambrano’ carer is a person from a non-EEA state whose residence is required to enable a child or dependant adult, who is an EEA national, to exercise their treaty rights. If a British or Irish child or dependant adult has a Zambrano carer there are more details here.
Housing and homelessness applications from mixed households
The eligibility criteria for a housing allocation from a local authority apply only to the applicant themselves. If the applicant is British or Irish and has no dependants then they are eligible for a housing allocation or homelessness assistance without further conditions. Different rules apply if the application is from a mixed household (i.e. the applicant is British/Irish but other members of his/her household are not eligible).
Passing the habitual residence test
In Scotland, British and Irish citizens returning to the UK are eligible for housing and homelessness assistance on their arrival. This is because they are not ‘subject to immigration control' and (unlike in England and Wales) there is no further requirement that they must be habitually resident.
But British and Irish citizens who recently arrived in the UK may find that they are refused benefits because they fail the habitual residence test. For HB purposes the test applies to the claimant only (and not their partner). But in the case of a claim for universal credit (but not HB or CTR) both members of a couple are usually joint claimants (and therefore both would have to be habitually resident). However, if only one of them is habitually resident, that person can claim UC as a single person (regulation 3(3)(c) of the Universal Credit Regulations 2012).
For more information on claims for UC/HB/CTR including: couples with mixed immigration status (e.g. only one member British); the requirement to provide a national insurance number and/or evidence of nationality (e.g. undocumented ‘Windrush’ cases) see the page on the law on UC, HB and CTR.
In practice the habitual residence test is only applied to those who have returned to live in the UK during the two-year period prior to their claim (usually by a filter question on the application/claim form). The habitual residence test does not apply if the claimant:
- is the partner of a British citizen who has been given leave outside the immigration rules under the destitution domestic violence concession (UC reg. 9(4)(e), HB reg. 10(3B)(h))
- is a British citizen, Irish citizen or Commonwealth citizen with the right of abode who was resident in Sudan before 15 April 2023 and who left due to the escalating violence (UC reg. 9(4)(zd), HB reg, 10(3B)(zzd))
- is a British citizen, Irish citizen or a Commonwealth citizen with the right of abode who was resident in Ukraine before 1 January 2022 and who left due to the Russian invasion (UC reg. 9(4)(zc), HB reg. 10 (3B)(zzc))
- is British or a person with settled status who left Afghanistan in connection with the collapse of the Afghan government that took place on 15 August 2021 (UC regulation 9(4)(zb), HB regulation 10(3B)(zzb))
- has a right of abode or settled status and has been deported, expelled or removed to the UK from another country (UC regulation 9(4)(g), HB regulation 10(3B)(i); or
- for housing benefit only, is in receipt of one of the passport benefits, income-based JSA, income-related ESA, income support or state pension credit (HB regulation 10(3B)(k)-(l)).
In all other cases British/Irish citizens must show they are habitually resident on the facts. British citizens who have lived most of their life outside the UK may find the facts in the Olokunboro case helpful (for details, see the habitual residence test ).
