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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.

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 enforce this by excluding people with limited leave from entitlement in most cases. However, there are several less common situations where limited leave can be granted without a ‘no public funds’ condition so that the holder is not automatically excluded (but their right to housing and benefits will depend on meeting other conditions). Leave without a public funds condition can be granted to:

  • People who apply for asylum and who are granted refugee status or humanitarian protection (including ‘Dubs children) (homeless Classes A, B, FA)
  • A stateless person who has been granted leave for that reason has full access 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 without a ‘no public funds’ condition 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 (homeless Class FB).
  • People who were resident in Ukraine before 1 January 2022 who left due to the Russian invasion and who have been granted leave (which includes, a Ukraine family scheme visa or a Ukraine sponsorship scheme visa) (homeless Class FAA).
  • 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 (homeless 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.
  • A person who is the partner of a British Citizen or settled person who has to leave due to domestic violence can apply for permission to claim universal credit or housing benefit whilst they apply for settled status.
  • 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. sponsored migrants whose sponsor has died), 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

Until 1 January 2021 nationals from certain European countries that are ECSMA/ESC treaty member states were eligible for UC/HB/CTR even if they had leave with a ‘no public funds’ condition [2015] UKUT 438 (AAC). However, this rule has been abolished except for claims for council tax rebate, or claims:

  • for housing benefit and/or state pension credit made before 3 May 2022; or
  • for universal credit made before 1 January 2021.

Claims for UC/HB/SPC made before the cut off dates can continue for as long as the claimant remains entitled to it (e.g. until their income or capital is too high). In each case (UC/HB/SPC and CTR) the claimant is only entitled if they are habitually resident.  

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

A person does not require leave and can continue to use their EEA right to reside after 30 June 2021 if s/he:

  • is the parent of a self-sufficient EEA child; and
  • either:
    • has EU pre-settled status, or
    • has applied to the EU settlement scheme but has not had their application determined.

This is often known as a ‘Chen’ right after the case that established it. The child must be ‘self-sufficient’ although this may be based on the parent's resources and the Chen parent is allowed to work.  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 the parent’s right to reside. You can find out more about Chen rights here. Once the Chen parent has acquired EU settled status they are entitled to housing and benefits in the same way as any other person with indefinite leave.

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