Chapter 13 - Local Authorities' duties towards persons subject to immigration control and persons from EEA member states
13.1 Summary - the purpose of this chapter is to define which categories of people subject to immigration control are eligible for homelessness assistance, and to define duties which local authorities have to those people who are eligible for assistance. It also defines the rights that EEA nationals have in regard to homelessness assistance, in Scotland.
13.2 This chapter also provides brief definitions of relevant terms such as "asylum seekers", and "refugees". It also provides advice for practitioners to decide if an applicant is eligible, and information on how to check on someone's immigration status.
13.3 There is other information elsewhere in the Code relating to refugees or people with leave to remain who were former asylum seekers:
a) chapter 6 (on priority need) explains that former asylum seekers who have been granted leave to remain may have priority need as a result of being vulnerable due to their past experiences; and
b) chapter 8 (on local connection) explains that refugees who were former asylum seekers do not form a local connection with the area in which they stayed in NASS accommodation when they were asylum seekers.
13.4 The following appendices to this chapter provide more detailed information on specific topics:
- Appendix 13A - a complete list of persons subject to immigration control who are eligible for homelessness assistance (from SI 2000 No. 706).
- Appendix 13B - how to identify the main classes of person subject to immigration control.
- Appendix 13C - advice on how to get information from the Immigration and Nationality Department ( IND) in the Home Office, or from the National Asylum Support Service ( NASS) on a person's immigration status.
- Appendix 13D - a definition of the Common Travelling Area, and a list of member states of the European Economic Area ( EEA).
- Appendix 13E - guidance on "habitual residence".
Definition of immigration control
13.5 A person subject to "immigration control" is a person who requires leave to enter or remain in the UK (whether or not leave has been given). All persons who are not British citizens, foreign nationals with the right of abode in the UK, or nationals of EEA member states (these are listed in Appendix 13D) are subject to immigration control.
13.6 A person subject to immigration control will not be lawfully present unless they have "leave to enter or remain" (this generic term comprises several different specific categories). Asylum seekers are likely to have temporary admission only, and not have leave to enter or remain.
Eligibility for homelessness assistance for persons subject to immigration control
13.7 A person who is subject to immigration control is generally not eligible for homelessness assistance and may only be eligible if they fall within a category of person specified by SI 2000 No. 706 (made under the Immigration and Asylum Act 1999). The rules governing eligibility are complex, therefore LAs will need to have processes in place to carry out appropriate inquiries. Staff may need appropriate training to carry out inquiries, and this training may need to include not just aspects of housing and immigration law, but also in how to carry out assessments in a sensitive manner taking into account the fact that some people subject to immigration control may have been forced to leave their home countries under difficult circumstances. Staff may also need training in how to work with interpreters and will need to know how to signpost people who are ineligible for help from LAs but who may be able to get help from other agencies (see paragraph 13.17 below for more details). In addition, if an applicant is uncertain about whether they have leave to enter or remain, then staff should carry out appropriate enquiries.
13.8 See appendix 13A for a complete list of the classes of persons specified under these regulations. The main classes are:
- Refugees - A person who has been granted refugee status in the UK as a result of the upholding of his asylum claim.
- Humanitarian protection or Discretionary Leave - A person who has been granted Humanitarian Protection or Discretionary Leave and whose right is not subject to a condition requiring him to maintain and accommodate himself and his dependents without recourse to public funds. Note that "Humanitarian Protection" replaced "Exceptional Leave to Remain" as of 1 April 2003. Discretionary leave may be granted in exceptional circumstances for people with no international protection needs but where there are other reasons for allowing them to stay, e.g. strong compassionate grounds.
- Exceptional leave to enter or remain - A person who has been granted exceptional leave to enter or remain ( ELR) in the UK and whose right is not subject to any condition requiring him to maintain and accommodate himself and his dependents without recourse to public funds. Some former asylum seekers with ELR may still present as homeless and other people who are not asylum seekers may still be granted ELR, with or without conditions attached.
- A person who has current or indefinite leave to enter or remain in UK, and who is habitually resident (guidance on "habitually resident" is given in Appendix 13E) in the Common Travel Area ( CTA - this is defined in Appendix 13D) and who has no conditions restricting access to public funds - but there are some restrictions to this - see appendix13A for details.
- A person who is a national of a country which has ratified the European Convention on Social and Medical Assistance ( ECSMA), or the Council of Europe Social Charter ( CESC) (see Appendix 13D for list of countries) and who is lawfully present in the United Kingdom and who is habitually resident in the CTA.
13.9 See appendix 13B for advice on determining whether the applicant falls into one of the above categories.
What is the link between asylum seekers, refugees and persons granted other forms of leave to remain?
13.10 An asylum seeker is a person who has made a formal application for asylum and who is waiting for a decision on their application. Asylum seekers are persons subject to immigration control with temporary admission but not leave to enter or remain in the UK.
13.11 A person becomes an asylum seeker when his or her claim for asylum has been recorded by the Home Secretary, and he or she remains an asylum seeker until such time as that application has been finally resolved (including the resolution of any appeal). The recording, consideration and resolution of such claims is a matter for the Home Office Immigration and Nationality Directorate ( IND).
13.12 If a person's claim for asylum is upheld he ceases to be an asylum seeker and is granted refugee status. In some situations even where a person's asylum claim is not upheld, the Home Secretary will decide it is appropriate to grant that person another form of leave to remain, either humanitarian protection or discretionary leave (these two categories replace the old category of exceptional leave to remain; ELR).
Duties of LAs to persons subject to immigration control - general
13.13 A local authority is not entitled to give assistance under the homelessness legislation towards applicants who are persons subject to immigration control, unless the applicant is a person who falls within a class of persons specified by the Secretary of State as listed in paragraph 13.8 above or in appendix 13A. Local authorities will therefore need to satisfy themselves whether homeless applicants are persons subject to immigration control and, if so, whether they are 'ineligible persons'. However if the LA has reason to believe that an applicant is homeless, then the duty to provide temporary accommodation still applies unless and until the LA is satisfied that they are ineligible.
13.14 Humanitarian protection, discretionary leave and exceptional leave to enter or remain apply for a specified period of time; usually up to 3 years. On expiry of these provisions, a person may apply for an extension or for Indefinite Leave to Remain; ILR. If they apply, their entitlements to housing, employment and welfare benefits continue until a final negative decision is received from the Home Office.
Duties of LAs to persons subject to immigration control - asylum seekers
13.15 The position for asylum seekers is different than that for other persons subject to immigration control. Asylum seekers are not eligible for homelessness assistance unless they fall into one of the categories defined in paragraphs 8-9 in Appendix 13A. These categories are likely to apply to a very small number of asylum seekers. Special provisions apply to these asylum seekers (but not others) who may be eligible for homelessness assistance as defined in Appendix 13A. For those classes of asylum seekers who may be eligible for homelessness assistance, they are not eligible for homelessness assistance if they have any other accommodation available, however temporary. However if the LA has reason to believe that an applicant is homeless, then the duty to provide temporary accommodation still applies unless and until the LA is satisfied that they are ineligible.
13.16 If a person is ineligible for housing assistance then they may still be eligible for other types of assistance, and LAs may have duties to provide other types of assistance. This also applies to the dependents of any applicants.
13.17 LAs are not entitled to help asylum seekers who are not eligible for assistance. People in this category (which includes all asylum seekers who have applied for asylum after April 2000) should be referred to the Scottish Refugee Council for advice and assistance and/or to make an application for NASS housing and support. ( SRC is contracted by Home Office to provide this service as "Reception Assistant").
13.18 It is not specified at which stage the LA should inquire into the applicant's immigration status. However, local authorities should make these inquiries at an early stage, perhaps at the point when they have reason to believe an applicant is homeless or threatened with homelessness, and therefore the question of what duties are owed to the applicant arise. It is essential that these inquiries are carried out in a non-discriminatory way, in accordance with all relevant race relations legislation (see paragraphs 4.8-4.10 in chapter 4 above for more details).
13.19 If there is any uncertainty about a person's immigration status then staff are recommended to contact the Home Office Immigration and Nationality Directorate or the NASS outreach regional team in Glasgow (see Appendix 13C for details of how to contact IND or NASS). Staff should advise the applicant if they are going to contact IND.
13.20 As mentioned above in chapter 6, former asylum seekers who are eligible for homelessness assistance such as refugees or other people with leave to remain or enter may have priority need by virtue of being vulnerable due to their past experiences in their home countries. Local authorities should be aware of, and sensitive to, the fact that applicants may not find it easy to explain what has happened to them in their home countries.
Applicants from EEA countries (including the EU)
13.21 A person who is from one of the EEA member states (which includes the EU - see Appendix 13D for list of member states of the EEA) is eligible for assistance.
13.22 The "A8" member states are eight of the countries which joined the EEA on 1 May 2004. They are: the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia, and Slovenia. Nationals from these countries have the same rights to housing and homelessness assistance as nationals from other EEA states. Note that this is different from the situation in England where regulations ( SI 2004 No. 1235) have been made to disallow persons from EEA member states from being eligible for homelessness assistance unless they satisfy certain conditions.
13.23 This situation may change in the future and the Scottish Executive will keep LAs informed of any changes.
13.24 In May 2006 Home Office brought into force legislation ( SI 2006/1003) which transposed EC Directive 2004/38. This Directive consolidates the right of citizens of the European Union (and their family members) to move and reside freely within the territory of EU Member States. The relevant aspects of Home Office's legislation are:
a) an "initial right to reside" now exists for EEA citizens for up to 3 months if they fulfil certain criteria. Different criteria apply to citizens of the "old" EU countries and those of the A8 states (The Code of Guidance explains these categories). Citizens of the "old" EU countries obtain the right to reside if they are a worker, a job-seeker, self-sufficient, self-employed, a student, or a family member of any of these classes. Citizens of the A8 states need to be a worker and registered on the Workers Registration Scheme, or self-sufficient in order to have the right to reside;
b) there is an "extended right to reside" for some classes of EEA citizens if they reside in the UK for more than 3 months and less than 5 years;
c) there is a "permanent right to reside" for some classes of EEA citizens who have been in the UK for more than 5 years and fulfil the criteria, and;
d) this legislation also specifies that if an EEA citizen does not have the right to reside in the UK they become subject to immigration control.
13.25 EEA citizens who are subject to immigration control come within the scope of the Asylum and Immigration Act 1999. The effect of this Act is that persons subject to immigration control are not eligible for homelessness assistance in Scotland unless they come within a specified class of persons. Relevant existing legislation ( SI 2000/706) made under this Act allows certain classes of persons subject to immigration control to obtain access to homelessness assistance in Scotland.
13.26 One of the classes of persons in SI 2000/706 who are eligible for homelessness assistance in Scotland is a person who is a national of a country which has ratified the European Convention on Social and Medical Assistance ( ECSMA) or the Council of Europe Social Charter ( CESC) and who is lawfully present in the United Kingdom and who is habitually resident in the CTA (Common Travel Area).
13.27 There is case law (the Court of Appeal decision on Abdi and Ismael, April 2006) which has the effect of ensuring that EEA nationals who are persons subject to immigration control are eligible for homelessness assistance because they are nationals of countries which have ratified the ECSMA or CESC.
13.28 To summarise, EEA nationals who are not persons subject to immigration control are still eligible for homelessness assistance because there is nothing which restricts that right. EEA nationals who are persons subject to immigration control are eligible because they are nationals of countries which have ratified the ECSMA or CESC.
Appendix 13A - people subject to immigration control who are eligible for homelessness assistance:
The classes of persons subject to immigration control who are eligible for assistance are specified under SI 2000 No. 706 (made under the Immigration and Asylum Act 1999). Below is a short description of these classes. See SI 2000 No. 706 for the actual wording for each class:
1. A person who is a refugee. i.e. a person who has been granted refugee status in the UK as a result of the upholding of his asylum claim.
2. A person who has been granted exceptional leave to enter or remain ( ELR) in the UK and whose right is not subject to any condition requiring him to maintain and accommodate himself and his dependents without recourse to public funds. (Note that Humanitarian Protection and Discretionary Leave have now replaced ELR).
3. A person who has been granted current or indefinite leave to enter or remain in UK, and who is habitually resident in the Common Travel Area. But a person whose leave to enter or remain depends on an undertaking by another person (the sponsor) who is responsible for his maintenance and accommodation, and who has been resident in UK for less than 5 years, and whose sponsor is still alive is not eligible.
4. A person who left Montserrat after 1st November 1995 because of the effect on that territory of a volcanic eruption.
5. A person who is a national of a country which has ratified the European Convention on Social and Medical Assistance ( ECSMA), or the Council of Europe Social Charter ( CESC) and who is lawfully present in the UK and who is habitually resident in the Common Travel Area. Note that this category excludes people from Switzerland. Note that it includes people from Croatia and Turkey, even though these countries are not in EEA.
6. A person who is on an income-based jobseekers allowance, but not those who have been given limited leave to enter or remain in UK, or who are temporarily without funds because funds from abroad have been disrupted.
7. A person who claims asylum within three months of the Secretary of State (of Home Office) declaring that his country had undergone such a fundamental change that he would not normally order the return of a person to that country and
(i) who was in GB when this declaration was made, and
(ii) whose asylum claim has not yet been decided or abandoned
(the Secretary of State has made two such declarations in the past, one concerning Zaire and one concerning Sierra Leone, both in 1997). In order to qualify under this criteria an applicant would have to have claimed asylum in 1997, and still be awaiting a decision.
8. A person who has claimed asylum and
(i) whose claim was recorded on or before 2nd April 2000 and
(ii) who made a claim for asylum on his arrival in the UK from a country outside the Common Travel Area and
(iii) whose claim is not yet decided or abandoned.
9. A person who has claimed asylum and
(i) who made a relevant claim on or before 4th February 1996 and
(ii) who was on 4th February 1996 entitled to benefit under regulation 7A of the Housing Benefit (General) Regulations 1987 (Persons from abroad) or regulation 7A of the Housing Benefit (General) Regulations (Northern Ireland) 1987 (Persons from abroad).
Appendix 13B - how to identify the main classes of person subject to immigration control.
1. A person granted refugee status has been recognised as a refugee in accordance with the criteria set out in the 1951 United Nations Convention relating to the status of refugees and granted asylum in the United Kingdom. A person granted refugee status will have been issued by the Home Office with a letter headed Grant of Asylum and (sometimes but not always) marked ICD0725 validated by an Immigration and Nationality Directorate ( IND) date stamp. New regulations mean that this letter in itself is not proof of refugee status, and should be accompanied by an Immigration Status Document ( ISD), a passport-like document with photograph. But people granted refugee status or other leaves to remain prior to 2003 may only have a decision letter, and no ISD.
A Person who has Exceptional Leave to Enter or Remain in the UK
2. Exceptional leave to enter or remain in the UK may be granted to asylum seekers who are refused asylum (ie not given refugee status) and other persons where there are compelling, compassionate circumstances which justify granting leave to enter or remain on an exceptional basis.
3. Exceptional leave to enter or remain is sometimes granted initially for 12 months only, and the person will have the opportunity of seeking renewal for a further three years, prior to full settled status being granted ( i.e. indefinite leave to remain with no limitation or condition). Housing authorities should note that persons holding exceptional leave to enter or remain (even where this may be time limited) will be eligible for homelessness assistance unless it is subject to a condition requiring them to maintain and accommodate themselves (and their dependants) without recourse to public funds.
4. Persons holding exceptional leave to enter or remain which is time limited should not be treated as a person holding limited leave to enter or remain in the UK (who will not be eligible).
5. Former asylum seekers granted exceptional leave to enter or remain will have been issued with a letter (marked GEN 19 in the top right-hand corner) showing the date until which leave to enter or remain has been granted. This letter will have been validated by an IND date stamp.
A person who has humanitarian protection or discretionary leave to enter or remain in the UK
6. People granted humanitarian protection or discretionary leave will be issued a standard format letter by the Immigration, and Nationality Directorate ( IND) at the Home Office that makes clear that they have been granted leave under one of other of these policies. The letter will be similar in format to the standard letter previously issued to people granted exceptional leave, and it will show the date on which leave to enter or remain will expire.
7. In addition to this letter, an Immigration Status Document should also be issued.
8. See Annex C for web-link to guidance from ODPM on these new categories of humanitarian protection and discretionary leave.
A Person who has Indefinite or Current Leave to Enter or Remain in the United Kingdom which is not subject to any limitation or condition
9. Persons subject to immigration control who have permission to remain in the United Kingdom for an indefinite period are regarded as having settled status within the meaning of the immigration rules. Such persons are granted indefinite leave to remain and this will be reflected by an endorsement to that effect in their passport, which will be accompanied by an authenticating date stamp issued by IND.
Asylum seekers (see appendix 13A for details of which asylum seekers may be eligible)
10. Asylum seekers are unlikely to have possession of their passport since this will generally be lodged with IND when they make an asylum application. Instead they may have an Application Registration Card ( ARC) or a standard acknowledgement letter ( SAL) or other letter from IND in connection with the asylum claim. Application Registration Cards are increasingly replacing standard acknowledgement letters. Other documents which an asylum seeker may produce include a Form IS 96 (used by the Home Office to notify a person that he or she has been granted temporary admission to the UK) and a GEN 32 (used by the Home Office to provide an applicant with a date for attending the Asylum Screening Unit for an interview). Information on Application Registration Cards can be found at: http://www.ind.homeoffice.gov.uk/ind/en/home/laws_policy/policy_instructions/apis/ application_registration.html
Appendix 13D - definition of the Common Travel Area, list of member states of the EEA, and countries not in EEA which have ratified the ESC and the ECSMA charters.
Common Travel Area
Isle of Man and
Republic of Ireland
EEA including A8 (A8 countries are marked with *):
Note that Switzerland is not a member of the EEA but Swiss nationals do have the same rights as other EEA nationals under reciprocal agreements between the EU and Switzerland.
Non EEA states which have ratified ECSMA and ESC:
Appendix 13C - how to contact the home office immigration and nationality directorate and the national asylum support service.
1. The Home Office's Immigration and Nationality Directorate ( IND) will exchange information with Local Housing Authorities subject to relevant data protection and disclosure policy requirements being met and properly managed, provided that the information is required to assist with the carrying out of statutory functions or prevention and detection of fraud.
2. The Evidence and Enquiries Unit ( EEU) will provide a service to local housing authorities to confirm the immigration status of an applicant from abroad (Non Asylum Seekers). In order to take advantage of the service, local housing authorities first need to register with this unit at:
Evidence and Enquiries Unit
Immigration and Nationality Directorate
C Block 3rd Floor
Croydon CR9 2AT
either by letter or fax: 020 8604 5783.
3. Registration details requires by the EEU's Local Authorities' Team are:
(a) Name of enquiring local housing authority on headed paper,
(b) Job title/status of officer registering on behalf of the local housing authority,
(c) Names of local housing authority staff and their respective job titles/status who will be making enquiries on behalf of the local housing authority.
4. Once the local housing authority is registered with the EEU, then the authorised personnel can make individual enquiries by letter or fax, but replies will be returned by post.
5. In cases where the EEU indicate that the applicant may be an asylum seeker, enquiries of their status can be made to the National Asylum Support Service ( NASS) by Fax: 020 8633 0014. Copies of the EEU's correspondence must accompany the request. It may be easier to check a person's status through the NASS outreach regional team in Glasgow. See Annex B for contact details.