ELIGIBILITY FOR ASSISTANCE BARNET LBC NOVEMBER 2011

THE LAW Part 7, Housing Act 1996 –s.183: Part 7 trigger –s.184: Enquiry duty –s.185 – 187: Eligibility for assistance –s.193: Full duty –s.213A: Referals for non-eligible applicants

s.185 HA 1996 Person subject to immigration control –Not eligible unless prescribed Person from abroad –Right to reside –Habitually resident/exempt HR s.185(4) –Members of household –Disregard v Restricted Person –Restricted cases

THE LAW Asylum & Immigration Act 1996 –s.13(2): subject to immigration control –Leave to enter or remain per Immigration Act 1971 Regulations –Allocation of Housing & Homelessness (Eligibility) Regs 2006 –Immigration (EEA) Regs 2006 –Accession Regs 2006

HABITUAL RESIDENCE Two conditions: –Residence for appreciable period of time that has become habitual; and –Settled intention to reside Code 9.16 –Presume if two years continuous residence Re-acquiring HR Exemptions from HR test

OVERVIEW PSICs not eligible unless presribed EEAs who are economically active are eligible Some EEAs with other rights to reside are eligible if habitaully resident UKs eligible if habitually resident

PSICs Who are they? –Leave to enter/remain –Everyone bar: British citizens EEA nationals exercising Treaty rights Ineligible unless presribed as eligible by regulations (per s.185 HA 96)

ELIGIBLE PSICs Eligibility Regs: –Refugee –ELR & recourse to public funds –ILR unless: Not habitually resident; or Sponsered, less than 5 years since arrival and sponser not dead –Humanitarian protection –Pre-3/4/00 asylum seekers ‘Public funds’ = housing & benefits

PERSONS FROM ABROAD Not subject to immigrtaion control Key issues are: –Qualifying right to reside –Habiual residence

RIGHT TO RESIDE Immigration Regs 2006 Initial RTR –Last no more than 3 months from arrival in UK Extended RTR –Jobseeker –Worker –Self-employed person –Self-sufficient person –Student

EXTENDED RTR Jobseeker –Enters UK to seek employment –Genuine chance of finding employment Worker –Three criteria: Real & genuine, not marginal & ancillary Must be for for and under direction of another Must receive renumeration

EXTENDED RTR Worker –Still defined as a worker if: Temporarily unable to work as a result of illness or accident; or Involuntary unemployed, and registered as a job seeker, and employed for year, and employed for year, and unemployed for no more than 6 months or; unemployed for no more than 6 months or; actively seking employment and genuine change of being engaged actively seking employment and genuine change of being engaged

EXTENDED RTR Self-employed –Working outside relationship of subordination –Independent provider of services –Similar provisions as to workers re. retaining status if cease self- employment Self-sufficient –Not a burden on UK’s social assistance system –Comprehensive sickness insurance cover in UK

EXTENDED RTR Students –Enrolled on course with prescribed provider –Not a burden on UK’s social assistance system –Comprehensive sickness insurance cover in UK ‘Social assistance system’ includes homelessness services

RIGHT TO RESIDE Immigration Regs 2006 Permanent RTR –5 years residence –Retired worker or self-employed person –Permanently incapacitated worker or self-employed person

RIGHT TO RESIDE EU Law Ibrahim & Texeira –ECJ decision –Child of EU worker in full-time education –Child and primary carer retain RTR even after EU national has ceased to work Okafor –Court of Appeal –Family members of deceased EU national –Failed to acquire permanent RTR in own right

RIGHT TO RESIDE & FAMILY MEMBERS Family members have RTR so long as EEA national has RTR Family members include: –Spouse/civil partner –Children of applicant or spouse/CP under 21 –Older relatives of applicant or spouse/CP who financially dependent Dependance does not have to be total and can include physical dependance

RIGHT TO RESIDE & FAMILY MEMBERS Extended family members include: –Non-married partner –Relative who was living as part of family before coming to UK –Family member with serious health problem who needs care from applicant or spouse/CP To have RTR, EFM must be issued with: –EEA family permit, or –Registration certificate, or –Residence card

RIGHT TO RESIDE & FAMILY MEMBERS Obtain RTR in own right if: –Family member of worker/self- employed EEA national; and –EEA national has died; and –Family member resided at time of death; and either –Deceased had worked for at least 2 years prior to death in UK; or –Died as result of accident at work or occupational disease

RIGHT TO RESIDE & FAMILY MEMBERS Obtain RTR in own right if: –Family member of worker/self- employed EEA national; and –EEA national has died; and –Family member is themselves worker/self-employed/self- sufficient If surviving family member is not EEA national, must also have lived in UK with deceased at least 1 year prior to death

RIGHT TO RESIDE & FAMILY MEMBERS Obtain RTR in own right if: –Relationahip breakdown, even if no longer resides with EEA national; or –Divorce/annulment, and –Marriage/CP lasted at least 3 years, and –At least last year spent in UK, and –Has rights of residence or access to child in UK, or –Needs to stay in UK because of circumstances (e.g. abuse)

INELIGIBLE PERSONS FROM ABROAD Reg 6(1) Eligibility Regs: –Not habitually resident –Right to reside as jobseeker or family member of jobseeker –Right to reside under initial 3 month right

HR EXEMPT Reg 6(2) Eligibility Regs: –Worker –Self-employed –A2 national in registered employment –Family member of above –Permanent RTR because: Retired worker or self-employed person, or Permanently incapacitated worker or self-employed person

HR EXEMPT Reg 6(2) Eligibility Regs: –Family member of worker/self- employed EEA national; and –EEA national has died; and –Family member resided at time of death; and either –Deceased had worked for at least 2 years prior to death in UK; or –Died as result of accident at work or occupational disease

HR EXEMPT Reg 6(2) Eligibility Regs: –Left Montserrat after 1/11/95 as result of volcano –In UK as result of deportation, expulsion or removal –Arrived between 28/2/09 – 18/3/11 from Zimbabwe as part of resettlment programme

A2 NATIONALS Romania & Bulagaria Worker Authorisation Scheme 12 months continous registered employment Eligible whilst registered Includes family members (unless au pair or seasonal agriculturalworkers)

A2 NATIONALS After 12 months, same as rest of EEA 30 days jobseeking Exemptions from WAS Does not apply to self-employed A2s Due to expire 31/12/11

UK NATIONALS Automatic qualifying right to reside by virtue of nationality Must be habitually resident unless: –Deported from another country –Arrived via Zimbabwe evacuation programme

ENQUIRIES s.183 HA 1996 –Trigger for Part 7 –Eligibility irrelevant s.184 HA 1996 –Duty on LA –‘Satisify itself…’ s.188 HA 1996 –Duty to accommodate pending enquiries –‘Reason to believe…may be…’

ENQUIRIES UKBA –Rely on s.187 HA 1996 –Contact if status unclear –Register with Evidence & Enquiries Unit –Inform applicant before contacting UKBA Public sector equality duty –Equality Act 2010 –Functions carried out with regard to eliminating unlawful discrimination and promoting equality of opportunity –Part 7 = ‘functions’

DUTIES & POWERS UNDER PART 7 Interim accommodation (s.188) Full duty (s.193) –Restricted case –Discharge if cease to be eligible Right of review (s.202) Refer to social services (s.213A) Right to make new application if eligibility changes (s.183)