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Advising people with indefinite leave to remain

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

This page looks at common housing problems which people with indefinite leave to remain may face. It includes some references to relevant case law, and links to the relevant regulations.

What are the housing and housing benefit rights of people with indefinite leave to remain?

A person with indefinite leave is eligible for a housing allocation from the council and has the right to help if they are homeless and to housing benefit/council tax rebate, or in certain circumstances for housing benefit/council tax rebate only, as follows:

  • Eligible for a housing allocation, homelessness help and HB/CTR. They must be habitually resident and not have had an undertaking to support and accommodate them signed by a relative within the last five years (but this exclusion does not apply if all the people who signed it are now dead).
  • Eligible for HB/CTR only. If they are a national of Macedonia or Turkey, and are habitually resident, they are eligible regardless of whether an undertaking has been signed. This is because the requirement for eligibility here is simply to be ‘legally present’.

For further information see the pages on who is eligible for a housing allocation and who is eligible for housing benefit and council tax rebate.

People with indefinite leave to remain (ILR) can also get accommodation from housing associations. This applies to all including those who do not meet conditions outlined above. 

People with indefinite leave can apply for private rented housing but in England 'right to rent' checks apply and they will need to show the landlord documents to prove their status.

Indefinite leave to enter confers exactly the same rights as indefinite leave to remain or settled status, and the housing eligibility regulations echo this putting people with indefinite leave to enter or remain into class C.

People in the armed forces and indefinite leave to remain

Non-UK nationals serving in the armed forces are exempted from immigration control while serving.  On discharge, they can apply for indefinite leave to remain (if they have not become UK citizens while serving, which is possible only after five years’ service) if:

  • s/he has served for four years; or
  • s/he has been discharged as a result of injuries sustained in operations.

Normally, any family members living with them at the time will be included in the ILR application.  Once their application is accepted (and it is often sorted out before the services accommodation is lost) the ex-member of the armed forces has the normal rights of anyone with ILR.  Service in the armed forces counts as time spent in the UK wherever it occurs, and so people in this situation will be habitually resident

People who have served in the armed forces (including those who now have ILR) and who are considering applying for an allocation of social housing to a local housing authority in England are covered by regulations which:

  • exempt them from any residency requirements for local authority allocation schemes; and
  • give additional preference to those who have urgent housing needs.

For Welsh provision for those who have served in the armed forces, see the Welsh Government package for the armed forces community and also here. Local housing authorities in Wales cannot impose residency requirements on their allocation schemes.

What if a family member comes to join a person with indefinite leave to remain?

When husbands/wives/civil partners and children apply to join a family member with indefinite leave to remain, they are usually given limited leave to remain for two periods of 30 months, after which they can apply for indefinite leave to remain.

If the person with indefinite leave applies as homeless, s/he will not be offered temporary or long-term accommodation unless s/he is 'in priority need' because she is pregnant or s/he has a pregnant woman or a child living with him/her. A person who is not eligible cannot confer priority need on a homeless applicant.

For example: Mrs A arrived with her son to join her husband, Mr A, who has indefinite leave to remain in the UK. She and her son were given 30 months leave to remain a year ago but the family have just lost their home. Mrs A is now eight months pregnant. The local council offers them advice but not accommodation because they are homeless, but not in priority need. Once the baby is born, however, s/he will be British (because the UK-born children of people with indefinite leave to remain have the right to British citizenship) and the family will then be in priority need and the local council will have to house them.

If a person with indefinite leave to remain applies to go on the council housing waiting list s/he is eligible, and the family members should be included in any application to go on to the housing list, but no other adults can be joint tenants unless they are themselves eligible.

Housing legislation was amended in 2009 (by the Housing and Regeneration Act 2008 section 314 and schedule 15) and now allows people not subject to immigration control to get some homelessness services if they are only in priority need or homeless because they have a non-eligible person in their household. But this does not extend to people subject to immigration control, like people with indefinite leave to remain (such as those in the example above).

The council can decide that it is not reasonable to include all family members on a housing waiting list application if it considers that they do not have the right to family life together.

Any accommodation offered by the council, through a homeless application or the allocation scheme, must be suitable for the whole household, subject to the local authority agreeing who is actually in the household.

What about people who are subject to an undertaking?

In order to bring certain family members into the UK (adults who need high levels of care) the person bringing them (the sponsor) has not only to show that they can accommodate and support them but also to sign a legally binding undertaking to do this. This undertaking is noted on the relevant immigration documents and stamps. The result is usually to bar the person who is the subject of the undertaking from eligibility for benefits or housing for five years (for the limited exceptions see above).

What are the rights of people with ILR to housing benefit (HB) and council tax rebate (CTR)?

People with indefinite leave are entitled to HB/CTR as long as two other conditions are met:

  • They must be habitually resident (people who have lived in the UK for two years will normally be accepted as habitually resident).
  • They must not have had an undertaking to support and accommodate them signed by a relative within the last five years, although if all the people who have signed it are dead this will not apply.

Are there any particular problems?

If someone with indefinite leave brings a husband, wife, civil partner or cohabitee to join them, the spouse or partner will usually be given limited leave to remain. For further information on their benefits, see the page on who is eligible for housing benefit and council tax rebate.

Rules about who can actually apply for a housing allocation in England can vary between local authority areas, because the Localism Act 2011 enables councils to set their own local rules about who can apply to be on a housing register or waiting list and most of them do. Changes in the rules cannot discriminate directly or indirectly against particular nationalities or ethnic groups (for more on this see the page on what is discrimination?) The new rules do not affect homelessness assistance and do not apply to Wales.

Chartered Institute of Housing

Background Topics

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

Chartered Institute of Housing