The law on housing eligibility in Northern Ireland

Coverage of housing rights for migrants in Northern Ireland is coming soon! - when it is finished, we will announce the changes.

Homelessness services

Part 2 of the Housing (Northern Ireland) Order 1988 sets out the powers and duties of the Northern Ireland Housing Executive in dealing with applications for homelessness assistance. By article 7A, an applicant is not eligible for assistance if:

• s/he is a person who is ‘subject to immigration control’ unless s/he falls within an eligible class (Immigration and Asylum Act 1999, s.119), or
• s/he is a ‘person from abroad’ as defined by regulations made under article 7A.

A different procedure applies if the applicant is from a mixed eligibility household (i.e. where the applicant is eligible, but a member of their household is not).

Housing allocations

The Housing (Northern Ireland) Order 1981, article 22, is the main framework for social housing allocations in Northern Ireland. Under article 22, the Northern Ireland Housing Executive (NIHE) sets out its Housing Selection Scheme Rules (pdf) which are approved by the Department for Communities. A ‘housing allocation’ means anyone who is selected to be a secure or introductory tenant by the Housing Executive (article 22(7)).

A person is not eligible for social housing tenancy if s/he is:

• a person who is ‘subject to immigration control’ – unless they fall within an eligible class, or
• a ‘person from abroad’ as defined by regulations made under article 22A.

A person who is already a Housing Executive tenant falls within eligible class (Class M) and so can apply for a transfer (Housing (Northern Ireland) Order 1981, article 22A(5)). For applications for a joint tenancy see also mixed eligibility households.

Connection with Northern Ireland

By Rule 9(2)(c) of the Housing Selection Scheme (pdf) the applicant must also have ‘connection with Northern Ireland’ to be eligible. By Rule 14 the applicant meets that requirement if:

• s/he or a member of their household is, or in the past was, of their own choice, ordinarily resident, habitually resident or normally resident there, or
• s/he or a member of their household is employed there (or is making a genuine attempt to find employment, or
• s/he or a member of their household has a substantial connection because of other circumstances.

Ordinary residence means a person's 'abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being' (R v Barnet LBC ex p Shah [1982] UKHL 14, [1983] 2 AC 309). The ordinary residence test is also used to determine access to NHS medical treatment.

Ranking of applicants

By rule 11 of the Housing Selection Scheme (pdf) scheme anyone aged 18 or over has a right to be admitted to a housing list and by rule 15 applicants are ranked in descending order on a points basis. Points are awarded according to three categories of need:

• insecurity of tenure
• housing conditions, and
• health and social wellbeing assessment.

However, in certain circumstances if the applicant is eligible but a member of their household is not, the housing insecurity points that would otherwise accrue to an applicant in respect of them are disregarded: see mixed eligibility households.

Who is subject to immigration control

For homelessness and housing allocation 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’ (Immigration and Asylum Act 1999, s.118(6)). From 1 January 2021, every person requires leave to enter or remain in the UK unless s/he is:

• a British citizen (Immigration Act 1971, s.2(1)(a)), or
• an Irish citizen (with certain exceptions) (Immigration Act 1971, s.3ZA); or
• a Commonwealth citizen with the right of abode (Immigration Act 1971, s.2(1)(b)).

Eligible classes

A person who is subject to immigration control is nevertheless eligible if they fall within a class of persons as set out in an order made by the Secretary of State (Immigration and Asylum Act 1999, s.118(1)(a), s.119(1)(b)).

The law about who is in an eligible class is in the Persons subject to Immigration Control (Housing Authority Accommodation and Homelessness) Order 2000 (pdf). Each eligible class is designated by a letter (Class A, Class B, etc.) – see articles 3, 5 and 7. The Order sets out which types of immigration leave or other kinds of status (see article 7, Class M) fall within an eligible class. The conditions for, and designation of, a type of immigration leave as an eligible class are the same as in Scotland.

A person who has settled status (also known as indefinite leave to enter/remain ) and who is habitually resident falls within eligible ‘Class C’. This includes anyone who has EU settled status.

Immigration control for EEA nationals and their family members

Before 1 January 2021, nationals of an EEA member state and family members who accompanied them who exercised one their EU free movement rights did not require leave to enter or remain in the UK (Immigration Act 1988, s.7(1)) and therefore were not ‘subject to immigration control’.

As part of the EU withdrawal agreement the pre-1 January 2021 rules continue to apply as they did before to a person who:

• has EU pre-settled status (SI 2020/1309, schedule 4 paras 1, 5 and 7) or
• applied to EU Settlement Scheme on or before 30 June 2021 until that application has been finally determined – that is until they get a decision granting or refusing EU settled or pre-settled status (SI 2020/1209 , regs. 3, 4 and 12(1)(g)). This also includes a person who applied after 30 June 2021 provided their late application has been accepted. A person who applied before the deadline or whose late application has been accepted will have a ‘certificate of application’ (which is often in electronic form).

Where the pre-January 2021 rules apply a person must show they also have an EU right to reside to be eligible for housing or homelessness assistance. The law about EU rights to reside is in the Immigration (European Economic Area) Regulations 2016 (‘the EEA regulations’) which continue to apply for these purposes with some minor modifications. These rights to reside are described on the following pages:

• for workers and self-employed persons (including people who retain their worker status whilst temporarily unemployed, sick or on maternity or when they retire after having worked in the UK)
• for other EEA nationals (such as those who are self-sufficient or students) and
• EEA family members who accompany an EEA national who is exercising one of the rights above.

But if a person’s only right to reside is as a ‘jobseeker’ or as the sole carer of a British child they are excluded as a ‘person from abroad’.

Who is a person from abroad

A person who is not subject to immigration control but who is a ‘person from abroad’ is ineligible for a social housing allocation or homelessness assistance. The rules about who is a ‘person from abroad’ are set out in regulations 3 and 4 of the Allocation of Housing and Homelessness (Eligibility) Regulations (Northern Ireland) 2006 (No. 397).

A person is a ‘person from abroad’ if:

• s/he is not ‘habitually resident’ in the UK, Ireland, the Channel Islands or the Isle of Man or
• s/he is an EEA national or EEA family member who falls under the pre-1 January 2021 rules who, after disregarding their EU pre-settled status or possession of an EUSS family permit, only has a right to reside as either: 
  
  • the sole carer of a British child (a 'Zambrano' carer) or
  • an EEA jobseeker.

The requirement to be habitually resident applies regardless immigration status. So, for example, it would apply to a British or Irish citizen who returns to the UK after being settled abroad. Disqualification is usually only for a short period after arrival in the UK. But certain applicants are exempt from this requirement.

Who is exempt from the habitual residence test

The applicant is exempt from the from the requirement to be habitually resident (see regulation 3(2) (allocations) and regulation 4(2) (homelessness assistance)) if s/he:

• is a British citizen, a person with the right of abode or a person with settled status who has been deported to the UK from another country
• is a person who left Afghanistan in connection with the collapse of the Afghan government that took place on 15 August 2021
• is a person who was residing in Ukraine before 1 January 2022 and who left in connection with the Russian invasion
• is a person who was residing in Sudan before 15 April 2023 and who left Sudan in connection with the rapidly escalating violence
• is a person who was residing in Israel, the occupied territories or Lebanon before 7 October 2023 and who left in connection with the Hamas terrorist attack or the violence which followed
• is an EEA national who falls under the pre-1 January 2021 rules and who:
  • is a worker, frontier worker, or self-employed person, or
  • is a person who has retained their worker/self-employed status due to temporary sickness or unemployment, etc., or
  • is a former worker/self-employed person who has retired after working in the UK due to old age or incapacity with a right of permanent residence
• is an EEA family member who falls under the pre-1 January 2021 rules and who:

• has a right to reside based on the status of the EEA national they accompany (e.g. as worker, retained worker, self-employed etc), or
• has acquired permanent right of residence on the grounds that the EEA national they accompany has retired or has since died.

Mixed eligibility households: homelessness assistance

For homelessness applications if the application is made by a household where one member (or more) is eligible but one or more of their household members is not, two possibilities arise:

• If the eligible applicant is subject to immigration control (i.e. falls within one of the eligible classes) s/he cannot rely on the ineligible household member(s) to be considered as homeless or in priority need (Immigration and Asylum Act 1999 s119(1),(1A). In other words, the ineligible household member is disregarded as being part of the application.
• If the eligible member is not subject to immigration control (i.e. usually a British, Irish or EEA citizen who falls under the pre-1 January 2021 rules), then the ineligible member is a ‘restricted person’ and a special procedure applies to these types of application.

In the second instance if the applicant is only accepted as homeless or in priority need due to the presence of a restricted person, then s/he is likely to be made an offer of private rented accommodation for at least 12 months (although an offer of social housing can be made). Once the offer is made the duty is discharged whether or not the applicant accepts it (Housing (Northern Ireland) Order 1988, article 10), provided that s/he has been informed of:

• the possible consequence refusing it, and
• his/her right to request a review.

Mixed eligibility households: social housing allocations

A tenancy cannot be granted to person who is ‘subject to immigration control’ unless that person falls within an eligible class. So, in a couple if the applicant is eligible but their partner is not, the applicant must be the sole tenant.

If the applicant is eligible their application is ranked according to points awarded under one or more of the three categories of need based on their own circumstances or those of their household member (Housing Selection Scheme (pdf), Rule 15).

However, the applicant is not entitled to points for housing insecurity if the Housing Executive decides that the applicant would not have qualified for them without having regard to a member of their household who is a ‘restricted person’ (Housing Selection Scheme (pdf), Rule 24A(2)). A ‘restricted person’ is person who:

• requires leave to enter or remain in the UK but does not have it (i.e. an illegal entrant or an overstayer) or
• has limited leave but with a ‘no public funds’ condition.

Housing Selection Scheme (pdf), Rule 1(8).