The law about who is subject to immigration control
This page covers the whole of the UK
Contents:
What is immigration control and who does it affect
This page explains what immigration control means and the various definitions used in the law concerning a person’s rights:
- to enter and live in the UK (the main definition)
- to be eligible for a housing allocation or to homelessness assistance from the housing authority (the housing definition), or
- to be eligible for social security benefits (the benefits definition).
In Great Britain ‘housing allocation’ means an offer of housing made by the local authority and in Northern Ireland an offer made by the Housing Executive.
The main (UKVI) definition
The main definition is used by UK Visas and Immigration (UKVI) to determine who needs permission to enter the UK (known as ‘leave’). UKVI officers grant leave according to the immigration rules which determine its length and any conditions that the applicant must comply with. Conditions usually relate to restrictions on the right to work or access public funds.
A person is ‘subject to immigration control’ unless:
- s/he is a British citizen, or
- s/he is a citizen of a Commonwealth country who has the ‘right of abode’.
Immigration Act 1971, section 1(2), section 2.
The ‘right of abode’ only applies to certain people who are Commonwealth citizens whose parents were citizens of the UK or colonies on 31 December 1982 or who were married to such a person on that date.
Almost everyone who is ‘subject to immigration control’ must apply for ‘leave’, the only exceptions are:
- Irish citizens (in most cases), and
- before 1 January 2021, EEA citizens and their family members who were exercising one of their European Union (EU) free movement rights.
Immigration Act 1971, section 3, section 3ZA; Immigration Act 1988, section 7.
The second exception continues apply to any person who was exercising their free movement rights on 31 December 2020 and who has EU pre-settled status – but only for the purpose of determining access to housing or benefits: see EU transitional rules.
The housing definition
The housing definition excludes anyone who is ‘subject to immigration control’ from being eligible for a housing allocation or homelessness assistance, unless they fall within a class prescribed by an order made by the Secretary of State (an ‘eligible class’).
A person is ‘subject to immigration control’ if s/he is a person who ‘requires leave under the Immigration Act 1971 to enter or remain in the UK (whether or not such leave has been given)’.
The exclusion applies to the applicant but see mixed eligibility households if anyone included in the application is ineligible.
Relevant legislation
Asylum and Immigration Act 1996, section 13(2)
Immigration and Asylum Act 1999, section 118, section 119
Housing Act 1996, section 160ZA(2), section 160A(3), section 185(2)
Housing (Wales) Act 2014, schedule 2 paragraph 1(2)
Housing (Northern Ireland) Order 1981, article 22A(1)(a)
Housing (Northern Ireland) Order 1988, article 7A(1)(a)
The immigration and housing provisions taken together mean that a person is not eligible for a housing authority allocation or homelessness assistance unless s/he:
- is a British or Irish citizen
- is a Commonwealth citizen with the right of abode
- is a person who falls under the EU transitional rules, or
- is a person who falls within a prescribed class in an order made by the Secretary of State (follow the link for details of each class).
The benefits definition
A person who is ‘subject to immigration control’ is not eligible for universal credit (UC), state pension credit (SPC) or housing benefit (HB). For these purposes a person is subject to immigration control if s/he:
- requires leave to enter or remain the UK but does not have it
- has leave which has a ‘no public funds’ condition, or
- has leave which was given because of a sponsorship agreement (a ‘maintenance
undertaking’) except where:
- the sponsor (or all of them if there was more than one) has died, or
- s/he has been resident in the UK for at least five years, beginning with the date of entry or the date the agreement was signed, whichever is later.
Relevant legislation
Immigration and Asylum Act 1999, section 115
The Social Security (Immigration and Asylum) Consequential Amendments Regulations 2000, reg. 2(1),(1A), schedule part 1, paras 2-3
The Social Security (Immigration and Asylum) Consequential Amendments Regulations (Northern Ireland) 2000, NISR 2000 No. 71, reg.2(1),(1A), schedule, part 1 paras 2-3
People with limited leave are usually excluded because most kinds of limited leave are granted without access to public funds (e.g. students and work permit holders), but having limited leave does not of itself result in exclusion. All the kinds of leave that fall within a housing or homelessness ‘eligible class’ are granted with access to public funds, and access to public funds can be given for other reasons.
The exclusion applies to the claimant or joint claimant but if they receive a higher award because of a partner or child in their benefit unit who does not have access to public funds that partner/child is breaking the terms of their leave and could lose their right to remain in the UK, see: claims by couples and for children.
The EU transitional rules
EEA nationals and their family members who were exercising one of their EU free movement rights before 1 January 2021 (when the Brexit transition period ended) did not require leave to enter or remain in the UK and so were ‘not subject to immigration control’ for housing and benefits purposes. From 1 January 2021, a person continues to be treated as being not subject to immigration control for the same purposes if they are a person who:
- was exercising one of those rights on 31 December 2020
- made an on-time application to the EU Settlement Scheme, and
- either:
- has EU pre-settled status, or
- his/her application has not yet been finally determined.
A person with EU pre-settled status (EUPSS) is entitled housing or benefits on the same terms that applied immediately before 1 January 2021 (and also to reside in the UK because EUPSS is a form of leave with access to public funds).
Relevant legislation
Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020, section 5 and schedule 1 paragraph 1
The Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations 2020, schedule 4 paragraphs 1, 5-7
The Citizens' Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020, reg. 4, reg. 12
After five years residence (including time before 1 January 2021) EUPSS gets converted into EU settled status at which point that person’s rights to housing and benefits are the same as any other non-EU national with indefinite leave.
