Eligibility for Housing and Homelessness Assistance: Brexit, Right - - PowerPoint PPT Presentation

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Eligibility for Housing and Homelessness Assistance: Brexit, Right to Reside issues and proving status

Liz Davies, Garden Court Chambers (Chair) Adrian Berry, Garden Court Chambers Sophie Caseley, Garden Court Chambers

25 June 2020

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Allocations of Housing and Homelessness Assistance In order to secure a public sector tenancy (social housing) by way of an allocation (Part 6, Housing Act 1996) or to secure homelessness assistance (Part 7, Housing Act 1996) from a Local Authority under the Housing Act 1996, an EU Citizen must, among other things, pass an immigration/right to reside test.

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Allocations of Housing and Homelessness Assistance That test is found in the Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006 (the 2006 Regulations) (there are separate eligibility regimes for Wales, Scotland, and Northern Ireland).

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Allocations of Housing and Homelessness Assistance To be Eligible a person must either be: (1) One of a permitted Class of Persons Subject to Immigration Control (Regs 3 (Allocations),5 (Homelessness)), or (2) Another Person from Abroad with a qualifying Right to Reside (Regs 4 (Allocations), 6 (Homelessness))

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Allocations of Housing and Homelessness Assistance

Immigration (European Economic Area) Regulations 2016 SI 2016/1052

• Initial Right of Residence (Reg 13)
• Extended Right of Residence (Reg 14) (Qualified persons under Reg 6 of the 2016 Regs)
• Permanent Right of Residence (Reg 15)
• Derivative Right of Residence (Reg 16)

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Allocations of Housing and Homelessness Assistance

• Consider whether the LHA is delaying making a decision on eligibility through prolonged enquiries ( See Robinson v

Hammersmith and Fulham [2006] EWCA Civ 1122)

• Homelessness applications should be accepted so long as the facts are new (and not fanciful/trivial) Begum (Rikha) v

Tower Hamlets LBC [2005] EWCA Civ 340

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Allocations of Housing and Homelessness Assistance

Some EU rights to reside render a person eligible without having to satisfy the ‘habitual residence’ test.

• Workers/self-employed ( 2006 Regs, 6 (2) (a) )
• Their family members, except for Extended Family Members (2006 Regs, 6 (2) (d) and Reg (2) (3) of 2006

Regs)

• Workers/self-employed with a retained right of residence for reasons of permanent incapacity or

retirement (Reg 6 (2) (e ) of the 2006 Regs

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Allocations of Housing and Homelessness Assistance

Retaining Status

• See the position in respect of pregnant women in employment/self-employment: St Prix v Secretary of State for

Work and Pensions Case C-507/12 (CJEU 19 June 2014) and HMRC v Henrika Dakneviciute Case C 544/18 (Sept 2019)

• ‘Temporarily unable to work as a result of an illness or accident’ pursuant to Reg. 6 (2) (a) of the 2016 Regs. See

Samin v Westminster City Council [2012] EWCA Civ 1468 (upheld by Supreme Court) and Moreno v Hackney LBC, Legal Action, November 2009

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Allocations of Housing and Homelessness Assistance

Other EU rights to reside render a person eligible for housing or homelessness assistance only if she also satisfies the habitual residence test (a combination of being in the UK for an appreciable period of time and having a settled intention to reside).

• Thus, an EU Citizen exercising rights of residence as a Student or a Self-Sufficient basis must

show also that she is habitually resident.

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Allocations of Housing and Homelessness Assistance There are also EU rights to reside that do not render a person eligible if that is her sole right to reside. For example, an EU right of residence in the UK solely as a Jobseeker or a person with the initial right of residence (first three months after arrival in the UK) does not without more render a person eligible for social housing or homelessness assistance.

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Allocations of Housing and Homelessness Assistance

How does Brexit, the Withdrawal Agreement, the European Union (Withdrawal Agreement) Act 2020, and the Settled Status regime under Appendix EU of the Immigration Rules, change the picture?

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The Transition Period to 31 December 2020

At present EU Citizens and their family members are able to secure Settled Status (indefinite leave to remain/ILR) or Pre-Settled Status (limited leave to enter or remain) under Appendix EU to the Immigration Rules.

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The Transition Period to 31 December 2020 As regards eligibility for an allocation of social housing or homelessness assistance from a local authority, an EU Citizen with Settled Status/ILR, who is also habitually resident (in the UK, Channel Islands, Isle of Man, or Ireland), will be eligible because she will fall within Class C of the 2006 Regulations (Reg 3 (Allocations), Reg 5 (Homelessness)).

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The Transition Period to 31 December 2020

That she may also have a right to reside under EU law on some other basis, for example the EU Right of Permanent Residence, provides another, additional, basis for a qualifying immigration status but

• therwise adds nothing, unless that status exempts the person from the

habitual residence test in circumstances where the person is not yet judged to be habitually resident.

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The Transition Period to 31 December 2020

By way of example, the EU Right of Permanent Residence acquired by virtue of permanent incapacity due to an accident at work, exempts a person from satisfying the habitual residence test otherwise applied in

• rder to be eligible for social housing or homelessness assistance.

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The Transition Period to 31 December 2020 However, Pre-Settled Status/limited leave to enter or remain is not an immigration status that by itself renders a person eligible for social housing or for homelessness

• assistance. In fact, as a result of amendments to the 2006 Regulations introduced by the

Allocation of Housing and Homelessness (Eligibility) (England) (Amendment) (EU Exit) Regulations 2019 it is plain that this is a non-qualifying status. Anyone with Pre-Settled Status must prove some other status in order to eligible.

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The Transition Period to 31 December 2020

Those with pre-settled status will need to prove a qualifying right to reside under EU law, such as Worker status, Self-Employed status, being a family member, and so on. Moreover, when seeking an allocation of social housing or homelessness assistance it will not ordinarily be enough for such a person to produce an EEA Registration Certificate or an EEA Residence Card. (See Secretary of State for Work and Pensions v Dias [2011] EUECJ C-325/09).

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The Transition Period to 31 December 2020

To satisfy the local authority as to eligibility, the person is going to have to do more: she is going to have to prove the underlying entitlement. Thus, an EU Citizen working in the UK for two years, is going to have to prove that she is in genuine and effective work.

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The Transition Period to 31 December 2020

That she did not have to prove she was in work when she was granted Pre-Settled Status makes no difference. If she wants social housing or social assistance, she will have to do so. Pre-Settled Status may provide an immigration status that will endure after Brexit and the end of the transition period (31 December 2020) but it does not secure access to social housing or homelessness assistance.

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The Transition Period to 31 December 2020

See also R (Fratila) v Secretary of State for Work and Pensions [2020] EWHC 998 (Admin)- where it was held that it was not discriminatory, and therefore lawful, for Social Security Regulations to exclude those who have pre-settled status during the transition period from entitlement to Universal Credit. The same principle would apply when considering eligibility for homelessness assistance/housing.

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The Transition Period to 31 December 2020

In the transition period after the UK leaves the EU down to 31 December 2020, EU rights to reside in the UK will continue to be available, see sections 1 and 2 of the European Union (Withdrawal Agreement) Act 2020 amending the European Union (Withdrawal) Act 2018. Thus a person with Pre-Settled Status will be able to prove her right to reside in EU law (where she has such a right as a Worker, Self-Employed person, family member, and so on) and thus demonstrate eligibility for social housing or homelessness assistance in this period by virtue of a qualifying right to reside (remember some EU rights to reside such as Jobseeker do not render a person eligible).

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After the end of the Transition Period (after 31 December 2020) but before the Deadline for Applying for Settled Status (30 June 2021)

In the period after the end of the transition period (31 December 2020) but before the deadline for applying for Settled Status (currently the end

• f June 2021), people with Settled Status continue to be eligible for social

housing or homelessness assistance but what of those with Pre-Settled Status or no status documents?

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After the end of the Transition Period (after 31 December 2020) but before the Deadline for Applying for Settled Status (30 June 2021) EU rights to reside under the EU Treaties will no longer be available but they may have rights arising under the UK-EU Withdrawal Agreement by virtue of having been Workers, Self-employed, family members, and so on, before the end of the transition period (31 December 2020). Such rights are expressly provided for in the Withdrawal Agreement, see Articles 13 and 15 of the Agreement.

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After the end of the Transition Period (after 31 December 2020) but before the Deadline for Applying for Settled Status (30 June 2021)

Such persons are also entitled to residence documents in recognition of that right, see Article 18 of the Agreement. In addition, such persons must be treated equally and not discriminated against on grounds of nationality, see Article 12 and Article 23 of the Agreement. How are such persons to be protected in UK law?

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After the end of the Transition Period (after 31 December 2020) but before the Deadline for Applying for Settled Status (30 June 2021)

By Section 14 of the European Union (Withdrawal Agreement) Act 2020 an appropriate authority (UK Ministers; a devolved authority in Scotland, Wales, or Northern Ireland; or both) may make such regulations as are considered appropriate to implement the provisions on the prohibition of discrimination on grounds of nationality and the right to equal treatment found in the Withdrawal Agreement.

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After the end of the Transition Period (after 31 December 2020) but before the Deadline for Applying for Settled Status (30 June 2021)

Such regulations may be made not only for persons falling within the personal scope of the Withdrawal Agreement but also in respect of other persons who may be granted leave to enter or remain under the residence scheme immigration rules (for example Appendix EU of the Immigration Rules), whether or not they have been granted such leave.

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After the end of the Transition Period (after 31 December 2020) but before the Deadline for Applying for Settled Status (30 June 2021)

Not only may the regulations made under Section 14 modify other regulations, they may also modify an Act of Parliament. Thus, the power to make such regulations is what is known colloquially as a Henry VIII power.

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After the end of the Transition Period (after 31 December 2020) but before the Deadline for Applying for Settled Status (30 June 2021)

Any regulations made under the Section 14 will need to provide a route to eligibility for persons not yet qualifying for Settled Status but who have rights that arise directly under the Withdrawal Agreement. Such persons will have rights regardless of whether they have Pre-Settled Status or no status documents at all.

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After the end of the Transition Period (after 31 December 2020) but before the Deadline for Applying for Settled Status (30 June 2021)

Such persons will be able to rely on their rights directly before local authorities, other public authorities, and before the Courts, see Section 5

• f the European Union (Withdrawal Agreement) Act 2020, amending the

European Union (Withdrawal) Act 2018.

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After the Deadline for Applying for Settled Status (30 June 2021)

In the period after the end of the deadline for applying for Settled Status (currently the end of June 2021), people with Settled Status continue to be eligible for social housing or homelessness assistance but what of those with Pre-Settled Status or no status documents?

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After the Deadline for Applying for Settled Status (30 June 2021)

As matters stand, persons with Pre-Settled Status who fall within the personal scope of the Withdrawal Agreement (as a Worker, Self-employed person, family member, and so on) ought be able to show they have secured residence documentation under the Withdrawal Agreement, and therefore should be able to access the provisions in the Withdrawal Agreement that prohibit discrimination on ground of nationality and provide for equal treatment. But it will be for the regulations made under Section 14 of the European Union (Withdrawal Agreement) Act 2020 so to provide (they may not do so).

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After the Deadline for Applying for Settled Status (30 June 2021)

Similarly, for those with Pre-Settled Status but who do not fall within the personal scope of the Withdrawal Agreement (i.e. present in the UK but without exercising an EU right of residence), it will be for Ministers making regulations to provide for them. If they do not, such persons will be ineligible for social housing or for homelessness assistance.

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After the Deadline for Applying for Settled Status (30 June 2021) As regards with those with no status documents in the period after the end of the deadline for applying for Settled Status (currently the end of June 2021), as matters stand they will be ineligible for social housing or for homelessness assistance, notwithstanding that they would otherwise fall within the scope of the Withdrawal Agreement were they to possess such documentation. There is provision for late- applications but unless and until Status is granted they will be ineligible. They will also lack any lawful basis to be in the UK and be liable to removal, a situation created by the imposition of a Settled Status deadline and which is scandalous.

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After the Deadline for Applying for Settled Status (30 June 2021)

For both those with Pre-Settled Status and those with no documentation, the position is highly unsatisfactory. It is to be hoped that Ministers will make regulations that are broad enough to protect and support all those EU Citizens and their family members vulnerable to the consequences of their exclusion from allocations of social housing and homelessness assistance.

Thank you

020 7993 7600 info@gclaw.co.uk @gardencourtlaw