What is ‘immigration control’, and how does it affect housing eligibility? 

The CIH’s Sam Lister writes about “immigration control” and how it affects entitlement to housing and benefits. 

Immigration control is the system through which people obtain permission to enter or stay in the UK. It is administered by immigration officers working for UK Visas and Immigration, a division of the Home Office. Officers decide applications under the Immigration Rules, which are approved by Parliament. Their decisions affect people’s eligibility for social housing and for homelessness help. 

Immigration control is reserved to the UK Parliament. This means that, whether relevant legislation is passed by the UK Parliament or by a devolved administration, the effect is the same in each UK nation. 

The Immigration Rules are very long, complex and frequently amended. 

They include different requirements depending on the migrant’s circumstances and reason for coming to the UK, including: 

• People claiming asylum, who may be granted refugee status, or people seeking entry for other humanitarian reasons 
• Students 
• People applying for permission to work, with many sub-categories based on the type of work, qualifications and other factors 
• People applying to join a family member, including a spouse 
• Spouses of British citizens who have experienced domestic abuse 
• People who have been trafficked or are victims of modern slavery 
• Applicants to the EU Settlement Scheme, who are EU citizens and family members who were resident before 1 January 2021. 

The current system has applied since 1 January 1973, when the Immigration Act 1971 came into force. 

Permission to enter or stay in the UK is called “leave”. There are two main types. 

Indefinite leave has no time limit and is usually granted without conditions. A person with indefinite leave can usually work and access public services. In some cases, indefinite leave is granted only if another permanent UK resident, known as a sponsor, agrees in writing to provide the person’s maintenance and accommodation. This agreement is called a maintenance undertaking. Indefinite leave without conditions is also known as “settled status”. 

Limited leave is granted for a fixed period. A person can usually apply for a further period shortly before it expires. Limited leave is almost always subject to conditions, such as restrictions on working or accessing public services. A condition preventing access to public services is often called “no public funds” or “no recourse to public funds” (NRPF). 

For example, 53% of new arrivals come through a study route and have restrictions on working and accessing public funds. People who arrive through a work route account for 29% of new arrivals and cannot access public funds. People who arrive through a family route, such as those joining a British spouse, account for 9% of new arrivals and cannot access public funds until they acquire settled status, usually after five years. The remaining 9% are mostly people arriving through humanitarian routes, who are often, but not always, granted leave with access to public funds. 

Who is subject to immigration control? 

Almost all foreign nationals are subject to immigration control. The main exception is long-term Commonwealth citizens who have the right of abode, meaning they are free from immigration control. These are certain long-term residents with historic rights, who arrived before 1 January 1983 and who either have at least one UK-born parent or are a woman who married such a person. People with this right are not British citizens and are often undocumented. 

This led to the Windrush scandal, when some of these residents were wrongly denied public services or, in some cases, deported simply because they lacked documentation to prove their status. Irish citizens are generally not subject to immigration control and do not need permission to enter or stay in the UK, and so have the right to work and access public services. 

Why is this relevant for housing professionals? 

Two gateway conditions control access to public housing, homelessness services and welfare benefits: the immigration control test and the habitual residence test, which will be covered in a future article. 

These conditions apply to the applicant or claimant, not to other household members. However, where a household member is ineligible, further rules may restrict the service provided by treating that person as if they were not part of the household. The rules for households with mixed eligibility are covered in the third article in this series. 

Generally, a person subject to immigration control is not eligible for a local authority (or in Northern Ireland) or Housing Executive tenancy, homelessness assistance, universal credit, pension credit or housing benefit. These all fall within the definition of public funds. 

There are exceptions, and the meaning of “person subject to immigration control” varies slightly depending on the service. The housing and benefits definitions are somewhat wider than the definition used by UK Visas and Immigration officers. 

For housing and homelessness services, anyone who needs leave to enter or stay in the UK, whether or not they have it, is treated as subject to immigration control. They are ineligible unless they fall within one of the exceptions listed in regulations, known as prescribed classes. A person with settled status who is habitually resident is eligible under Class C. Most other prescribed classes cover people granted limited leave for humanitarian reasons, such as refugees or sponsored Ukrainians escaping the war. 

For a full list, see the Housing Rights website. Before the Brexit transition period ended on 1 January 2021, EU nationals and their family members exercising free movement rights did not need leave to remain in the UK and were therefore not subject to immigration control. These rights continue for people with EU pre-settled status under the UK-EU withdrawal agreement. 

For universal credit, pension credit and housing benefit, a person is subject to immigration control if they need leave but do not have it, have leave with a no public funds condition, or have a sponsor who has signed a maintenance undertaking. Further regulations exempt sponsored migrants who have been resident for at least five years, or whose sponsor or sponsors have died. 

None of these exclusions apply to a person who has EU pre-settled status because it is given with access to public funds. However, a person who passes the immigration control test is eligible for benefit only if they are also habitually resident, as explained in the next article. 

Check out the new law on immigration control page on the Housing Rights website.