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.

Who does this page apply to?

Prior to 1 January 2021, EEA nationals could use their EU free movement rights to enter the UK and to access housing and benefits, and most did not require ‘leave’ from the Home Office. But since that date, EEA nationals who enter the UK for the first time must apply for leave.

The rights described on this page apply to any person (including EEA nationals) who:

• has been granted limited leave, leave granted as a result of a sponsorship agreement or any other kind of leave that has a 'no public funds' condition; but
• if s/he has EU pre-settled status their rights to housing and benefits depend on their preserved EU rights. These are described on the pages for EEA workers, Other EEA nationals and EEA family members according to their circumstances.

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, other people given leave through the asylum system, people given leave as a result of being in slavery or trafficking, to 'Dubs children' or to people given leave as stateless: go to asylum, refugees and trafficking survivors and advising refugees etc 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 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 regulations enforce this by excluding people with limited leave from entitlement in most cases. However, there are several less common situations where limited leave can be granted without a ‘no public funds’ condition so that the holder is not automatically excluded (but their right to housing and benefits will depend on meeting other conditions). Leave without a public funds condition (with access to housing and benefits) can be granted to:

• A stateless person who has been granted five years limited leave for that reason and who then has full access to housing and benefits.
• A person granted ‘temporary permission to stay’ as a survivor of trafficking or slavery (30 or 12 months leave).
• People from Hong Kong with a British National (Overseas) visa (30 months or five years) who are destitute or at imminent risk of destitution can apply to lift the 'no public funds' condition, and if it is lifted they have full access to housing and benefits.
• People who were resident in Sudan before 15 April 2023 who left due to the escalating violence (unless their leave is sponsored, in which case there is no access to housing or benefits).
• People who were resident in the Israel/Palestine region before 7 October 2023 who left due to the escalating violence (unless their leave is sponsored, in which case there is no access to housing or benefits).
• People from Ukraine granted limited leave who left due to the Russian invasion or who had their leave extended whilst in the UK (under the Ukraine family scheme visa, Ukraine sponsorship scheme visa, or the Ukraine extension scheme visa).
• Afghan citizens who arrived in the UK due to the crisis in August 2021 (or in the months immediately before) have full access to housing and benefits unless their leave has a ‘no public funds’ condition or was given upon an undertaking by a sponsor (unless their sponsor(s) have died). For more information see Afghan nationals and family members.
• Some people may get limited leave under the Immigration Rules (Appendix FM (pdf)) based on a right to family and private life in the UK because they have lived in the UK for so long or because of a relationship with a British citizen or a child who has lived in the UK for at least seven years. This type of leave may be granted with recourse to public funds in which case the holder is eligible. 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.
• There are separate procedures that apply to mixed households where one member is eligible and the other has limited leave to join the local authority waiting list and to apply for homelessness assistance.

What are ‘public funds’?

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

The law about what counts as public funds is in Rule 6.2 of the Immigration Rules. Rule 6.2 defines ‘public funds’ (along with numerous other definitions). It states that if a migrant’s sponsor receives or relies on a higher benefit award (such as the couple rate for their sponsored partner) then the sponsored person is treated as receiving public funds (although this does not apply to universal credit if the eligible partner claimed it as a single person). The rule also clearly states that it does not apply to welfare benefits where the law expressly allows for people who fall within prescribed exceptions (e.g. sponsored migrants whose sponsor has died), including those who would otherwise do so because their partner gets a higher award.

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.

Benefits for people from certain European countries

Until 1 January 2021 nationals from certain European countries that are ECSMA/ESC treaty member states were eligible for UC/HB/CTR even if they had leave with a ‘no public funds’ condition [2015] UKUT 438 (AAC). However, this rule has been abolished and now only applies to claims:

• for housing benefit and/or state pension credit made before 3 May 2022; or
• for universal credit made before 1 January 2021.

In each case an award made before the cut off date can continue for as long as the claimant remains entitled to it (e.g., until their income or capital is too high). All CTR awards made under a local council’s scheme ended on 1 April 2023.

Benefits for couples where one has limited leave

If the partner of a person with limited leave is eligible for UC/HB/CTR (e.g. because they are British) s/he can claim UC as a single person. If the eligible partner has claimed HB and/or CTR they are entitled but any increased award that arises from the partner with limited leave being included in their claim counts as ‘public funds’ and so may affect their partner’s status when they apply to renew their leave. For more information on claims for UC/HB/CTR by mixed eligibility couples, including the requirement for a national insurance number, see the law on UC/HB/CTR.

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.

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 are 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 be in 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

A person does not require leave and can continue to use their EEA right to reside after 30 June 2021 if s/he:

• is the parent of a self-sufficient EEA child; and
• either:
  • has EU pre-settled status, or
  • has applied to the EU Settlement Scheme but has not had their application determined.

This is often known as a ‘Chen’ right after the case that established it. The child must be ‘self-sufficient’ although this may be based on the parent's resources and the Chen parent is allowed to work. 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 the parent’s right to reside. You can find out more about Chen rights here. Once the Chen parent has acquired EU settled status they are entitled to housing and benefits in the same way as any other person with indefinite leave.