Homelessness eligibility – revisions underway

The following note appeared on the Doughty Street Chambers site. Anyone with clients (or applicants) in a similar position – in particular leave to remain granted under Appendix FM of the immigration Rules – should take note.

The DCLG has indicated that those granted Article 8 ‘leave to remain’ (and have recourse to public fund) will be made eligible for housing assistance under Parts VI and VII of the Housing Act 1996.  Dominic Preston and James Kirk (in Romans v Southwark LBC and SSDCLG) and Ben Chataway (in Alabi v SSDCLG) were instructed by Morrison Spowart to issue discrimination challenges in the High Court asserting that Regulation 5(b) of the Allocation of Housing and Homelessness (eligibility)(England) Regulations 2006 (SI 2006/1294) unlawful categorises such applicants as ineligibility for housing assistance. 

Currently those whose leave to remain is granted pursuant to Article 8 are only eligible for housing under regulation 5(b) if they were granted leave ‘outside the immigration rules’.  Since 2012, most Article 8 applications for leave to remain are granted within the Immigration Rules (notably Appendix FM).  Despite the 2012 changes, a number of Article 8 applicants are refused leave ‘within the rules’ (often because they have a history of bad character) but are nevertheless granted discretionary leave outside the rules, for instance because to return them to their country of origin would be unsafe or disproportionate in the circumstances.  The applicants argued that those provisions were discriminatory and in breach of Articles 8 and 14 of the ECHR.

Having considered the arguments in Romans and Alabi, the secretary of state has acknowledged that there is a gap in the regulations that needs to be addressed.  The parties have agreed to stay both claims in the light of the Secretary of State’s indication that forthcoming changes in the eligibility regulations are likely to confirm that the applicants are eligible for housing assistance.  Southwark have also agreed to house the applicants pending the enactment of the new regulations. 

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +.
Posted in Homeless, Housing law - All and tagged , .

9 Comments

  1. Solicitors have been sending copies of this letter to homelessness units and in the light of same are either demanding that affected cases are made eligible now in anticipation of the impending re-write or that they at least hold off from making eligibility decisions until the re-write is completed.

    I have spoken to three different councils about their response to it, some are holding, some are folding. Should be an interesting few weeks on the JR , s204 front

  2. Is anyone aware of a discrimination challenge re. homelessness eligibility for those with Art 8 LTR but no recourse to public funds?

  3. Anyone have any updates on this? I can’t say I am unsurprised at the length of time that it is taking the SOS to make the amendments.

  4. In my experience (and I work for a council who does this) councils have problems with people who have “temporary leave to remain” refusing to consider them as eligible for permanent social housing. One council I know leaves homeless families in temporary accommodation until they get indefinite leave to remain. Is this lawful? Surely it is a deliberate delay in discharging duty?

  5. Almost every migrant granted leave is given time limited leave even those granted full refugee status regardless of whether they have recourse to public funds. Most councils including the one I work for allow families who have time limited leave, to moulder away in temporary accommodation until they get indefinite leave. Given how poorly the HO is dealing with backlog cases we have some families in TA for over 15 years…. I thought that once they have recourse able to access public funds they should be able to have nominated or bid for permanent. Additionally RSL will only give fixed term tenancies to people with time limited leave and not offer lifetime tenancies unless a migrant family has indefinite.

    • Full refugee status are entitled to homeless and Part 6 housing, I think. A refusal to consider permanent accommodation arguably challengable discrimination.

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