ELIGIBILITY FOR ELIGIBILITY FOR ASSISTANCEASSISTANCE

BARNET LBCBARNET LBC

NOVEMBER 2011NOVEMBER 2011

THE LAWTHE LAW

Part 7, Housing Act 1996Part 7, Housing Act 1996

– s.183: Part 7 triggers.183: Part 7 trigger– s.184: Enquiry dutys.184: Enquiry duty– s.185 – 187: Eligibility for s.185 – 187: Eligibility for

assistanceassistance– s.193: Full dutys.193: Full duty– s.213A: Referals for non-eligible s.213A: Referals for non-eligible

applicants applicants

s.185 HA 1996s.185 HA 1996

Person subject to immigration Person subject to immigration controlcontrol– Not eligible unless prescribedNot eligible unless prescribed

Person from abroadPerson from abroad– Right to resideRight to reside– Habitually resident/exempt HRHabitually resident/exempt HR

s.185(4)s.185(4)– Members of householdMembers of household– Disregard v Restricted PersonDisregard v Restricted Person– Restricted casesRestricted cases

THE LAWTHE LAW

Asylum & Immigration Act Asylum & Immigration Act 19961996– s.13(2): subject to immigration s.13(2): subject to immigration

controlcontrol– Leave to enter or remain per Leave to enter or remain per

Immigration Act 1971Immigration Act 1971

RegulationsRegulations– Allocation of Housing & Allocation of Housing &

Homelessness (Eligibility) Regs Homelessness (Eligibility) Regs 20062006

– Immigration (EEA) Regs 2006Immigration (EEA) Regs 2006– Accession Regs 2006Accession Regs 2006

HABITUAL HABITUAL RESIDENCERESIDENCE

Two conditions:Two conditions:– Residence for appreciable period Residence for appreciable period

of time that has become of time that has become habitual; andhabitual; and

– Settled intention to resideSettled intention to reside

Code 9.16Code 9.16– Presume if two years continuous Presume if two years continuous

residenceresidence

Re-acquiring HRRe-acquiring HR

Exemptions from HR testExemptions from HR test

OVERVIEWOVERVIEW

PSICs not eligible unless PSICs not eligible unless presribedpresribed

EEAs who are economically EEAs who are economically active are eligibleactive are eligible

Some EEAs with other rights to Some EEAs with other rights to reside are eligible if habitaully reside are eligible if habitaully residentresident

UKs eligible if habitually UKs eligible if habitually residentresident

PSICsPSICs

Who are they?Who are they?– Leave to enter/remainLeave to enter/remain– Everyone bar:Everyone bar:

British citizensBritish citizens

EEA nationals exercising Treaty EEA nationals exercising Treaty rightsrights

Ineligible unless presribed as Ineligible unless presribed as eligible by regulations (per eligible by regulations (per s.185 HA 96)s.185 HA 96)

ELIGIBLE PSICsELIGIBLE PSICs

Eligibility Regs:Eligibility Regs:– RefugeeRefugee– ELR & recourse to public fundsELR & recourse to public funds– ILR unless:ILR unless:

Not habitually resident; orNot habitually resident; orSponsered, less than 5 years since Sponsered, less than 5 years since arrival and sponser not deadarrival and sponser not dead

– Humanitarian protection Humanitarian protection – Pre-3/4/00 asylum seekersPre-3/4/00 asylum seekers

‘‘Public funds’ = housing & Public funds’ = housing & benefitsbenefits

PERSONS FROM PERSONS FROM ABROADABROAD

Not subject to immigrtaion Not subject to immigrtaion controlcontrol

Key issues are:Key issues are:

– Qualifying right to resideQualifying right to reside– Habiual residenceHabiual residence

RIGHT TO RESIDERIGHT TO RESIDE

Immigration Regs 2006Immigration Regs 2006

Initial RTRInitial RTR– Last no more than 3 months from Last no more than 3 months from

arrival in UKarrival in UK

Extended RTRExtended RTR– JobseekerJobseeker– WorkerWorker– Self-employed personSelf-employed person– Self-sufficient personSelf-sufficient person– Student Student

EXTENDED RTREXTENDED RTR

JobseekerJobseeker– Enters UK to seek employmentEnters UK to seek employment– Genuine chance of finding Genuine chance of finding

employmentemployment

WorkerWorker– Three criteria:Three criteria:

Real & genuine, not marginal & Real & genuine, not marginal & ancillaryancillary

Must be for for and under direction Must be for for and under direction of anotherof another

Must receive renumerationMust receive renumeration

EXTENDED RTREXTENDED RTR

WorkerWorker

– Still defined as a worker if:Still defined as a worker if:

Temporarily unable to work as a Temporarily unable to work as a result of illness or accident; orresult of illness or accident; or

Involuntary unemployed, andInvoluntary unemployed, and

registered as a job seeker, andregistered as a job seeker, and

employed for year, andemployed for year, and

unemployed for no more than 6 unemployed for no more than 6 months or;months or;

actively seking employment and actively seking employment and genuine change of being engagedgenuine change of being engaged

EXTENDED RTREXTENDED RTR

Self-employedSelf-employed– Working outside relationship of Working outside relationship of

subordinationsubordination– Independent provider of servicesIndependent provider of services– Similar provisions as to workers Similar provisions as to workers

re. retaining status if cease self-re. retaining status if cease self-employmentemployment

Self-sufficientSelf-sufficient– Not a burden on UK’s social Not a burden on UK’s social

assistance systemassistance system– Comprehensive sickness Comprehensive sickness

insurance cover in UKinsurance cover in UK

EXTENDED RTREXTENDED RTR

StudentsStudents– Enrolled on course with Enrolled on course with

prescribed providerprescribed provider– Not a burden on UK’s social Not a burden on UK’s social

assistance systemassistance system– Comprehensive sickness Comprehensive sickness

insurance cover in UKinsurance cover in UK

‘‘Social assistance system’ Social assistance system’ includes homelessness includes homelessness servicesservices

RIGHT TO RESIDERIGHT TO RESIDE

Immigration Regs 2006Immigration Regs 2006

Permanent RTRPermanent RTR– 5 years residence5 years residence– Retired worker or self-employed Retired worker or self-employed

personperson– Permanently incapacitated Permanently incapacitated

worker or self-employed personworker or self-employed person

RIGHT TO RESIDERIGHT TO RESIDE

EU LawEU Law

Ibrahim & TexeiraIbrahim & Texeira– ECJ decisionECJ decision– Child of EU worker in full-time Child of EU worker in full-time

educationeducation– Child and primary carer retain RTR Child and primary carer retain RTR

even after EU national has ceased to even after EU national has ceased to workwork

OkaforOkafor– Court of AppealCourt of Appeal– Family members of deceased EU Family members of deceased EU

nationalnational– Failed to acquire permanent RTR in Failed to acquire permanent RTR in

own rightown right

RIGHT TO RESIDE & RIGHT TO RESIDE & FAMILY MEMBERSFAMILY MEMBERS

Family members have RTR so Family members have RTR so long as EEA national has RTRlong as EEA national has RTR

Family members include:Family members include:– Spouse/civil partnerSpouse/civil partner– Children of applicant or Children of applicant or

spouse/CP under 21spouse/CP under 21– Older relatives of applicant or Older relatives of applicant or

spouse/CP who financially spouse/CP who financially dependentdependent

Dependance does not have to Dependance does not have to be total and can include be total and can include physical dependancephysical dependance

RIGHT TO RESIDE & RIGHT TO RESIDE & FAMILY MEMBERSFAMILY MEMBERS

Extended family members Extended family members include:include:– Non-married partner Non-married partner – Relative who was living as part Relative who was living as part

of family before coming to UKof family before coming to UK– Family member with serious Family member with serious

health problem who needs care health problem who needs care from applicant or spouse/CPfrom applicant or spouse/CP

To have RTR, EFM must be To have RTR, EFM must be issued with:issued with:– EEA family permit, orEEA family permit, or– Registration certificate, orRegistration certificate, or– Residence cardResidence card

RIGHT TO RESIDE & RIGHT TO RESIDE & FAMILY MEMBERSFAMILY MEMBERS

Obtain RTR in own right if:Obtain RTR in own right if:

– Family member of worker/self-Family member of worker/self-employed EEA national; andemployed EEA national; and

– EEA national has died; andEEA national has died; and– Family member resided at time Family member resided at time

of death; and either of death; and either – Deceased had worked for at Deceased had worked for at

least 2 years prior to death in least 2 years prior to death in UK; orUK; or

– Died as result of accident at Died as result of accident at work or occupational diseasework or occupational disease

RIGHT TO RESIDE & RIGHT TO RESIDE & FAMILY MEMBERSFAMILY MEMBERS

Obtain RTR in own right if:Obtain RTR in own right if:

– Family member of worker/self-Family member of worker/self-employed EEA national; andemployed EEA national; and

– EEA national has died; andEEA national has died; and– Family member is themselves Family member is themselves

worker/self-employed/self-worker/self-employed/self-sufficientsufficient

If surviving family member is If surviving family member is not EEA national, must also not EEA national, must also have lived in UK with deceased have lived in UK with deceased at least 1 year prior to deathat least 1 year prior to death

RIGHT TO RESIDE & RIGHT TO RESIDE & FAMILY MEMBERSFAMILY MEMBERS

Obtain RTR in own right if:Obtain RTR in own right if:

– Relationahip breakdown, even if Relationahip breakdown, even if no longer resides with EEA no longer resides with EEA national; ornational; or

– Divorce/annulment, andDivorce/annulment, and– Marriage/CP lasted at least 3 Marriage/CP lasted at least 3

years, andyears, and– At least last year spent in UK, At least last year spent in UK,

andand– Has rights of residence or Has rights of residence or

access to child in UK, oraccess to child in UK, or– Needs to stay in UK because of Needs to stay in UK because of

circumstances (e.g. abuse)circumstances (e.g. abuse)

INELIGIBLE PERSONS INELIGIBLE PERSONS FROM ABROADFROM ABROAD

Reg 6(1) Eligibility Regs:Reg 6(1) Eligibility Regs:

– Not habitually residentNot habitually resident– Right to reside as jobseeker or Right to reside as jobseeker or

family member of jobseekerfamily member of jobseeker– Right to reside under initial 3 Right to reside under initial 3

month rightmonth right

HR EXEMPTHR EXEMPT

Reg 6(2) Eligibility Regs:Reg 6(2) Eligibility Regs:– WorkerWorker– Self-employedSelf-employed– A2 national in registered A2 national in registered

employmentemployment– Family member of aboveFamily member of above– Permanent RTR because:Permanent RTR because:

Retired worker or self-employed Retired worker or self-employed person, orperson, or

Permanently incapacitated worker Permanently incapacitated worker or self-employed personor self-employed person

HR EXEMPTHR EXEMPT

Reg 6(2) Eligibility Regs:Reg 6(2) Eligibility Regs:

– Family member of worker/self-Family member of worker/self-employed EEA national; andemployed EEA national; and

– EEA national has died; andEEA national has died; and– Family member resided at time Family member resided at time

of death; and either of death; and either – Deceased had worked for at Deceased had worked for at

least 2 years prior to death in least 2 years prior to death in UK; orUK; or

– Died as result of accident at Died as result of accident at work or occupational diseasework or occupational disease

HR EXEMPTHR EXEMPT

Reg 6(2) Eligibility Regs:Reg 6(2) Eligibility Regs:

– Left Montserrat after 1/11/95 as Left Montserrat after 1/11/95 as result of volcanoresult of volcano

– In UK as result of deportation, In UK as result of deportation, expulsion or removalexpulsion or removal

– Arrived between 28/2/09 – Arrived between 28/2/09 – 18/3/11 from Zimbabwe as part 18/3/11 from Zimbabwe as part of resettlment programmeof resettlment programme

A2 NATIONALSA2 NATIONALS

Romania & BulagariaRomania & Bulagaria

Worker Authorisation SchemeWorker Authorisation Scheme

12 months continous 12 months continous registered employmentregistered employment

Eligible whilst registeredEligible whilst registered

Includes family members Includes family members (unless au pair or seasonal (unless au pair or seasonal agriculturalworkers)agriculturalworkers)

A2 NATIONALSA2 NATIONALS

After 12 months, same as rest of After 12 months, same as rest of EEAEEA

30 days jobseeking30 days jobseeking

Exemptions from WASExemptions from WAS

Does not apply to self-employed Does not apply to self-employed A2sA2s

Due to expire 31/12/11Due to expire 31/12/11

UK NATIONALSUK NATIONALS

Automatic qualifying right to Automatic qualifying right to reside by virtue of nationalityreside by virtue of nationality

Must be habitually resident Must be habitually resident unless:unless:– Deported from another countryDeported from another country– Arrived via Zimbabwe evacuation Arrived via Zimbabwe evacuation

programmeprogramme

ENQUIRIESENQUIRIES

s.183 HA 1996s.183 HA 1996– Trigger for Part 7Trigger for Part 7– Eligibility irrelevantEligibility irrelevant

s.184 HA 1996s.184 HA 1996– Duty on LADuty on LA– ‘‘Satisify itself…’Satisify itself…’

s.188 HA 1996s.188 HA 1996– Duty to accommodate pending Duty to accommodate pending

enquiriesenquiries– ‘‘Reason to believe…may Reason to believe…may

be…’be…’

ENQUIRIESENQUIRIES

UKBAUKBA– Rely on s.187 HA 1996Rely on s.187 HA 1996– Contact if status unclearContact if status unclear– Register with Evidence & Register with Evidence &

Enquiries UnitEnquiries Unit– Inform applicant before Inform applicant before

contacting UKBAcontacting UKBA

Public sector equality dutyPublic sector equality duty– Equality Act 2010Equality Act 2010– Functions carried out with Functions carried out with

regard to eliminating unlawful regard to eliminating unlawful discrimination and promoting discrimination and promoting equality of opportunityequality of opportunity

– Part 7 = ‘functions’Part 7 = ‘functions’

DUTIES & POWERS DUTIES & POWERS UNDER PART 7UNDER PART 7

Interim accommodation Interim accommodation (s.188)(s.188)

Full duty (s.193)Full duty (s.193)– Restricted caseRestricted case– Discharge if cease to be Discharge if cease to be

eligibleeligible

Right of review (s.202)Right of review (s.202)

Refer to social services Refer to social services (s.213A)(s.213A)

Right to make new Right to make new application if eligibility application if eligibility changes (s.183)changes (s.183)