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CIH Scotland

Housing advisers

Advising people with limited leave to remain

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

From the 1 January 2021 the rights described on this page also apply to European nationals, see details below. Find out more on our Brexit news page.

Who does this page apply to?

Prior to 1 January 2021, EEA nationals could use their EU free movement rights to enter the UK and to access housing and benefits. In most cases they did not require ‘leave’ from the Home Office, so the rights described on this page did not usually apply. But EU free movement rights changed on the 1 January 2021 when the Brexit transition period ended. EEA nationals who enter the UK for the first time on or after 1 January 2021 must apply for leave.

The rights described on this page now apply to any person (whether s/he is an EEA national or not) who:

This section looks at housing problems faced by people given limited leave to remain as workers, students, family members and visitors. It includes some references to relevant case law, and links to the relevant regulations.

It does not cover advising refugees and other people given leave through the asylum system: go to refugees and people with discretionary leave, humanitarian protection and exceptional leave to remain and advising refugees and people with discretionary leave for information about their rights and how to advise them.

For help on advising people fleeing domestic abuse, go to the pages on people fleeing domestic abuse or advising people fleeing domestic abuse.

What are the housing and benefit rights of people with limited leave?

Generally, people are given limited leave in the UK to work, study, visit or join family members with the condition attached that they must be able to accommodate and support themselves without recourse to public funds. The housing and benefit regulations mirror this by excluding them from entitlement in most cases. However, there are several (uncommon) exceptions to the general rule that people with limited leave are excluded:

  • People who apply for asylum and who are granted refugee status or humanitarian protection (including ‘Dubs children) (homeless Classes A, B, FA)
  • People who have been granted leave as a stateless person are entitled to housing and benefits (homeless Class FC)
  • In exceptional cases (usually for humanitarian reasons) some people are given limited leave to remain 'outside the immigration rules'. If this leave is granted with recourse to public funds the holder is eligible for homelessness assistance (Class B), a housing allocation and universal credit/housing benefit.
  • Certain (non-EEA) people who are the family members of a person who was born in Northern Ireland.
  • A person who is the partner of British citizen or settled person who has leave due to domestic violence and who has been granted permission to claim UC/HB.
  • People from certain European countries can claim housing benefit (but not universal credit), even if their leave has a ‘no public funds’ condition.
  • Afghan citizens who arrived in the UK due to the crisis in August 2021 (or in the months immediately before) have full access to housing (Class FD) and benefits unless their leave has a ‘no public funds’ condition or was given upon an undertaking by a sponsor (unless their sponsor(s) have died). For more information see Afghan nationals and family members.
  • People with limited leave to remain can apply direct to housing associations because there are no eligibility regulations for these applications. People on short stays (visitors and some short-term students) may be refused because associations generally aim to house people intending to stay in the area for some time.
  • There are separate procedures that apply to mixed households where one member is eligible and the other has limited leave to join the local authority waiting list and to apply for homelessness assistance.

What are public funds?

The Home Office publish guidance about recourse to public funds that explains how the rules are applied.

The law about what counts as public funds is in Rule 6.2 of the Immigration Rules. Rule 6.2 defines ‘public funds’ (along with numerous other definitions). It states that if a migrant’s sponsor receives or relies on a higher benefit award (such as the couple rate for their sponsored partner) then the sponsored person is treated as receiving public funds (although this does not apply to universal credit if the eligible partner claimed it as a single person). The rule also clearly states that it does not apply to welfare benefits where the law expressly allows for people who fall within prescribed exceptions (e.g. nationals of certain European countries), including those who would otherwise do so because their partner gets a higher award.

Housing and support from social work departments

If a person with limited leave becomes homeless and destitute, social work departments may be able to accommodate vulnerable adults or families with children in certain very limited circumstances. See people with social care needs and advising people with social care needs for more on this.

Benefits for people from certain European countries

Nationals from certain European countries that are ECSMA/ESC treaty member states are eligible for HB/CTR if they have any form of leave (including leave with a ‘no public funds’ condition [2015] UKUT 438 (AAC)). However, this rule does not apply to universal credit (i.e. people aged under 66) unless that person claimed it before 1 January 2021 (and has remained continuously entitled to it since).

In Scotland, nationals of ECSMA/ESC treaty member states have no specific eligibility for homelessness assistance or for an allocation of social housing. They will only be eligible if they are refugees, or have exceptional leave or humanitarian protection, or are habitually resident in the Common Travel Area without any conditions on their leave. (The Common Travel Area consists of England, Wales, Scotland, Northern Ireland, the Republic of Ireland, the Isle of Man and the Channel Islands.)

Benefits for couples where one has limited leave

If the partner of a person with limited leave is eligible for UC/HB/CTR (e.g. because they are British) s/he can claim UC as a single person. If the eligible partner has claimed HB and/or CTR they are entitled but any increased award that arises from the partner with limited leave being included in their claim counts as ‘public funds’ and so may affect their partner’s status when they apply to renew their leave. For more information on claims for UC/HB/CTR by mixed eligibility couples, including the requirement for a national insurance number see the law on UC/HB/CTR.

Housing waiting list and homelessness applications where people with limited leave are part of the household

Any eligible person can make an application as homeless or to go on the housing waiting list, but there can be complications if the application includes people who are ineligible because they have limited leave (or no leave).

If the person with indefinite leave applies for help as homeless, they will be treated according to the rules for mixed households (and should look at that page for further information).

If an eligible applicant applies to go on to the council waiting list or to enter the allocations scheme, the local authority must assess the needs of the applicant according to their allocation scheme, and give reasonable preference to certain types of applicant, which includes applications made on the grounds of overcrowding or social or medical need. As long as the applicant is eligible, other members of the household are taken into account in deciding need and reasonable preference, even if they would themselves be ineligible because of their immigration status: see R (Kimvono) v Tower Hamlets London Borough Council [2001] 33 HLR 239.

When a local authority receives an application in this type of case it must first decide who it is reasonable to treat as a member of the household and in doing so the temporary nature of a person's immigration status can be a factor it takes into account: see Ariemuguvbe. So, whilst it would reasonable for the council not to include the applicant’s adult child where that child had already been living independently (Ariemuguvbe) it would be unreasonable to exclude a child that was a minor (Kimvono - see above).

Housing and benefit applications for parents with care of an EEA child

Any EEA citizen – including a child – has the right to live in any EEA member state. For a child to exercise that right it follows that their parent or (carer) must also be able to live there even if that parent is not himself/herself an EEA national. 

If the child is an EEA national (but not a UK citizen where different rules apply) this is often known as a ‘Chen’ right after the case that established it.  The EEA regulations have since been amended to include it as a new type of ‘derivative’ right to reside (see regulation 16), but this does depend on the child being ‘self-sufficient’ although this may be based on the parent's resources and Chen parents are allowed to work.  So, like self-sufficient EEA nationals, a Chen parent may be eligible for housing and benefits but claiming some benefits may call into question the child's self-sufficiency and so their right to reside.

Background Topics

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

A Housing Practitioners' Guide to Integrating Asylum Seekers & Refugees

A Housing Practitioners Guide to Integrating Asylum Seekers and Refugees

Published by the Scottish Refugee Council with support from CIH Scotland

Chartered Institute of Housing Scotland