Skip to main content

CIH logo

Housing advisers


The law on housing eligibility

This page is for housing advisers. If you are a new arrival please click here to visit sections more relevant to you.

This page explains the details of the eligibility rules for England and for Wales.

Note that applicants do not have to be eligible to get the free advice and information that local authorities should make available free of charge to prevent homelessness or help the homeless find accommodation.  This 'advice duty' applies in both England and Wales.  However, to get homelessness assistance (including accommodation) and to go on local council allocations schemes, applicants must be eligible.

Main legislation

The main law on eligibility in England is contained in the Housing Act 1996. The Act allows local authorities to set their own rules about who can apply to be on a housing register or waiting list. If they do, any local rules they adopt cannot discriminate directly or indirectly against particular nationalities or ethnic groups (for more on this see the page on what is discrimination?)

In Wales, the Housing Act 1996, Part 6, governs allocation of social housing, and the  Housing (Wales) Act 2014, governs all applications for homelessness assistance.

Advisers should ensure that they have an up-to-date text of the Act as it applies in England or the appropriate Act in Wales. All legislation can be found here (and although sometimes amendments are not yet fully incorporated, there is a tracking facility to help you identify which amendments are yet to be applied).

The law about who is excluded from housing or homelessness assistance

A person is excluded from housing or homelessness assistance if:

  • s/he is ‘subject to immigration control’ (as defined by the Asylum and Immigration Act 1996) – unless s/he is in a class re-included by regulations;
  • s/he is not subject to immigration control but falls within a class that is excluded by regulations (in England, ‘a person from abroad’); or
  • in England, for a joint allocation by to two or more people, if one of them is a person from abroad.

For homelessness assistance this law is in the Housing Act 1996, s.185 (England), or Housing (Wales) Act 2014, sch 2 para 1 (Wales); and for allocations the Housing Act 1996, s160ZA (England), or Housing Act 1996, s160A (Wales).

The English Regulations and the Welsh Regulations then reproduce these classes exactly (in England see Regulation 3, and for homelessness see Regulation 5). But the Regulations also set out which applicants who are not subject to immigration control (such as British citizens) are nevertheless excluded (‘a person from abroad’) (see Housing Act 1996, s160ZA(4), 185(3) and Regulation 4 and Regulation 6; in Wales, Housing Act 1996 s160A(5) and Housing (Wales) Act 2014, schedule 2 para 1(4) and Regulations 4 and 6). These exclusions do not apply to existing social tenants who transfer or exchange or to someone who is entitled to succeed. See: Housing Act 1996, ss. 160(2), 160ZA(5) and 160A(6).

Who is ‘subject to immigration control’?

For Housing Act 1996 (and other) purposes a person is ‘subject to immigration control’ if s/he ‘requires leave to enter or remain in the UK (whether or not such leave has been given)’ (Asylum and Immigration Act 1996, s.13(2)). By the Immigration Act 1971 every person requires leave to enter or remain in the UK unless s/he is:

  • a British citizen (s.2(1)(a))
  • an Irish citizen (with certain exceptions) (s.3ZA); or
  • a Commonwealth citizen with the right of abode (s.2(1)(b)).

Before 1 January 2021, an EEA national who was exercising one of his/her free movement rights was not ‘subject to immigration control’ (Immigration Act 1988, s.7(1), repealed by Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020, schedule 1 para 1).

An EEA national who was lawfully resident in the UK before 1 January 2021 continues to be treated as ‘not subject to immigration control for housing and homelessness purposes’ at least until 30 June 2021 (SI 2020 No 1209, Regs 3(4) and 12(1)(g)). And from 1 July 2021, only for as long as s/he has EU pre-settled status (SI 2020 No 1309, schedule 4 paras 1, 2, 3(e)). The same applies to a family member who accompanied them (including, in some cases, a family member who arrived after 1 January 2021). Once that person has EU settled status his/her EU rights are extinguished but s/he then falls within eligible ‘Class C’ and is entitled in the same way as a non-EEA national with indefinite leave (EU settled status being a form of indefinite leave).

English regulations

In England the current regulations are the Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006 (pdf). These regulations have been amended to include various new eligible classes, delete defunct ones and to create new classes of applicant who are not subject to immigration control but who are still ineligible. These changes are reflected in the text below (and the links above show the latest amended version of the regulations).

Regulations 3 and 4 set out who is eligible for an allocation of housing by a local authority (i.e. by obtaining a rented home through the local council or by a nomination for a housing association tenancy).

Regulations 5 and 6 cover the rules affecting people applying as homeless to local councils.

Allocations: Immigration control eligible classes (Regulation 3)

Regulation 3 sets out the classes of people subject to immigration control who are entitled to go on the housing register. A person is entitled if s/he:

  • has refugee status (Class A).
  • has exceptional leave to enter or remain without a 'no public funds' condition (Class B).
  • has settled status (including EU nationals with settled status) (Class C) (indefinite leave to remain, residence), unless s/he:
    • does not pass the habitual residence test or
    • arrived as a sponsored immigrant who is subject to an undertaking and the undertaking or the arrival was less than five years ago (but this does not apply where the sponsor has died, in which case they have the same rights as other settled people).
  • has humanitarian protection (Class D). (Note: Class E was abolished from 16 September 2021 and has been replaced by Class L - see below).
  • has (in certain circumstances) limited leave to enter or remain without a ‘no public funds’ condition (Class F). This mean s/he has been granted leave under one of these specific provisions of the immigration rules:
    • appendix FM – (where s/he has established the right to family life due to their long residence (pdf) (e.g. if s/he is the family member of a British or settled person or of a child who has lived in the UK for seven years)
    • paragraph 276BE (1) – as the dependant of an Afghan citizen covered by Class E above
    • paragraph 276DG – (where s/he would normally get indefinite leave but it has been refused because they have failed the English/Life in the UK tests or because of minor criminal offences).
  • from 6 July 2018, is an unaccompanied ‘Dubs child’ (pdf) (or his/her dependant) stranded in Europe, granted leave under section 67 of the Immigration Act 2016 (Class G).
  • from 1 November 2018, has ‘Calais leave’ (i.e. arrived to join his/her family in the UK after being cleared from the Calais camps in 2016-17) (Class H).
  • from 24 August 2020, a person who is the family member of a ‘relevant person of Northern Ireland’, who has been granted EU pre-settled status, provided that the ‘person of Northern Ireland’ they accompany is a EU worker, retained worker, or self-employed person (or would be but for the fact s/he is not a EU national (Class I).
  • from 24 August 2020, a person who has been granted limited leave as a stateless person (Class J).
  • from 29 June 2021, a person from Hong Kong who has limited leave as a British National (Overseas) (pdf) who has applied for, and been granted access to public funds and who is habitually resident (Class K).
  • from 16 September 2021, a person who left Afghanistan (Class L):

Class C includes people granted settled status under the EU settlement scheme because it is a form of indefinite leave under the Immigration Rules (and so is not subject to ‘any limitation or condition’: see Regulation 3(c)).

Allocations: other ineligible persons (Regulation 4(1),(1A))

Regulation 4(1) sets out which applicants, including British and Irish citizens, are not eligible for a housing allocation even though they are not subject to immigration control. A person is excluded by Regulation 4(1) if: s/he is not habitually resident in the UK, Channel Islands, the Isle of Man or the Republic of Ireland. Although some applicants are exempt from this requirement: see Regulation 4(2).

An EEA national is treated in the same way as a British citizen at least until 30 June 2021 (SI 2020 No 1209, Regs 3(3) and 11(k)) or after then if s/he has EU pre-settled status (SI 2020 No 1309, schedule 4 paras 1, 2, 3(p)) if:

  • s/he was lawfully resident on 31 December 2020; and
  • s/he has (and continues to have) a right to reside under the EEA Regulations 2016 other than:
  • as a jobseeker or as the family member of a EEA jobseeker
  • during the initial three-month period under Regulation 13 of those regulations
  • as the parent of a UK citizen child who has no other rights to reside in the UK (a ‘Zambrano carer’).

The rights to reside (as modified from 1 January 2021 by SI 2020 No 1309, schedule 4 para 4) are those rights as described on the pages for EEA workers, other EEA nationals and EEA family members as appropriate. Once that person is granted EU settled status his/her EU rights are extinguished (SI 2020 No 1309, schedule 4 paras 1-2) but s/he becomes entitled under Class C as a person with indefinite leave (EU settled status is a type of indefinite leave).

Allocations: exceptions to habitual residence (Regulation 4(2))

Regulation 4(2) sets out exceptions to the habitual residence test. An applicant is exempt (and so eligible for an allocation) if:

Homelessness: Regulations 5 and 6

Regulations 5 and 6 define who is eligible for homelessness assistance by duplicating the rules about allocations in regulations 3 and 4 but with different class names. Class E (historic rights for pre-2000 asylum cases) was deleted, but those that followed it were not re-ordered so Class F in regulations 5 and 6 is the same as Class E and so on. Over time new classes have been added, of which the most recent are:

  • from 9 July 2018, Class H (‘Dub’s children’)
  • from 1 November 2018, Class I (‘Calais leave’)
  • from 24 August 2020, Class J (the family member of ‘person of Northern Ireland’ with EU pre-settled status etc)
  • from 24 August 2020, Class K (a stateless person with limited leave)
  • from 29 June 2021, Class L (a British National (Overseas) from Hong Kong with limited leave who has been granted access to public funds
  • from 16 September 2021, Class M, Afghan citizens granted leave under one of three relocation schemes in place after the August 2021 crisis.

In each case see the equivalent class in Regulation 3 above. The rules about the eligibility of EEA nationals from 1 January 2021, that apply to Regulation 4(1) and 4(2) also apply to Regulation 6 (SI 2020 No 1209, Regs 3(3), 11(k); SI 2020 No 1309, schedule 4 paras 1, 2, 3(p)).

Welsh regulations

The Allocation of Housing and Homelessness (Eligibility) (Wales) Regulations 2014, SI 2603 (W.257) (pdf) govern applications for homelessness assistance and for an allocation of social housing in Wales. They are accompanied by guidance to local authorities.

New classes have since been added and in each case the class names and categories exactly mirror those in England (Classes A to H for allocations in the Welsh Regulations are identical to Classes A to H for allocations in the English Regulations). The only difference is that there is no equivalent to the English Classes, Class I (‘family member of a person born in Northern Ireland’) and Class K ((British National (Overseas) from Hong Kong) and Class I in Wales is equivalent to Class J in England (‘stateless persons’). The dates on which each new class was added are different, and the most recent are as follows (by the allocations class):

  • from 22 June 2017, Class F (various forms of limited leave without a ‘no public funds’ condition)
  • from 19 July 2019, Class G (‘Dub’s children’)
  • from 19 July 2019, Class H (‘Calais leave’)
  • from 19 March 2021, Class I (stateless persons)
  • from 15 October 2021, Class J (British National (Overseas) from Hong Kong with limited leave and access to public funds)
  • from 15 October 2021, Class K (Afghan citizens granted leave under one of the relocation schemes).

The rules about the eligibility of EEA nationals from 1 January 2021, in Regulations 4 and 6 of the Welsh Regulations apply in exactly the same way as in Regulations 4 and 6 of the English Regulations (SI 2020 No 1209, Regs 3(3), 11(w); SI 2020 No 1309, schedule 4 paras 1, 2, 3(z)).

Homelessness applications by 'mixed' families

For homelessness there are two different types of application for families with ‘mixed’ eligibility.

The first is where the applicant is a person subject to immigration control who is eligible because s/he falls within a class that is re-included by Regulation 5 of the English or Welsh eligibility regulations.

If a member of the applicant’s household is not eligible, then s/he cannot be considered by the local authority when it decides whether s/he is homeless or has a priority need. Typically this arises where the adult applicant is eligible but his/her child/ren are not, and so s/he will not have a priority need because of the presence of his/her dependent children (Housing Act 1996, s185(4),(5) (England); Housing (Wales) Act 2014, schedule 2 paragraph 1(5),(6)). 

The second is where the applicant is:

  • eligible; and
  • not subject to immigration control (i.e. usually a UK or EEA citizen with a right to reside); and
  • dependant on another person to be defined as in priority need or homeless, and that other person is ineligible.

An example would be a British woman who is married to an overseas student and lives with him and his nine-year old son (her stepson).

The ineligible person is known as a 'restricted person’ (Housing Act 1996, s184(7); Housing (Wales) Act 2014, s63(5). In these cases, the applicant is entitled only to limited housing assistance once any interim duty has come to an end and there is a special procedure for dealing with these applications (Housing Act 1996, s193(3B),(7AA)-(7AD); Housing (Wales) Act 2014, s76(5)):

If an eligible person applies as homeless but is only in priority need or homeless because of the presence of a restricted person in his/her household, then s/he is offered emergency and interim accommodation.

His/her application for a housing allocation should not attract any reasonable preference otherwise given to homeless applicants but should attract any reasonable preference given to applicants for other reasons (medical or social need, overcrowded or insanitary conditions, etc.) as appropriate.

The local authority should seek, so far as practicable, to bring their duty towards the applicant to an end by offering private rented accommodation (but it is not compelled to do this and it can offer social housing if it so chooses: any such offer must be in line with its published allocations policy, however).

The local authority must serve a notice on the applicant explaining their decision, which must include the following information (Housing Act 1996, s184(3A); Housing (Wales) Act 2014, s63(2)):

  • inform the applicant that their decision was reached on that basis,
  • include the name of the restricted person,
  • explain why the person is a restricted person, and
  • explain that the offer of private accommodation brings its duties towards the applicant to an end.

More information

You can consult the statutory guidance issued to local authorities, which has useful sections on eligibility and related matters:

Chartered Institute of Housing
BMENational

Background Topics

How can we improve housing for new migrants in the UK?

Chartered Institute of Housing