ELIGIBILITY FOR ASSISTANCE

1. ELIGIBILITY FOR ASSISTANCE BARNET LBC NOVEMBER 2011

2. THE LAW • Part 7, Housing Act 1996 • s.183: Part 7 trigger • s.184: Enquiry duty • s.185 – 187: Eligibility for assistance • s.193: Full duty • s.213A: Referals for non-eligible applicants

3. s.185 HA 1996 • Person subject to immigration control • Not eligible unless prescribed • Person from abroad • Right to reside • Habitually resident/exempt HR • s.185(4) • Members of household • Disregard v Restricted Person • Restricted cases

4. THE LAW • Asylum & Immigration Act 1996 • s.13(2): subject to immigration control • Leave to enter or remain per Immigration Act 1971 • Regulations • Allocation of Housing & Homelessness (Eligibility) Regs 2006 • Immigration (EEA) Regs 2006 • Accession Regs 2006

5. HABITUAL RESIDENCE • Two conditions: • Residence for appreciable period of time that has become habitual; and • Settled intention to reside • Code 9.16 • Presume if two years continuous residence • Re-acquiring HR • Exemptions from HR test

6. OVERVIEW • PSICs not eligible unless presribed • EEAs who are economically active are eligible • Some EEAs with other rights to reside are eligible if habitaully resident • UKs eligible if habitually resident

7. PSICs • Who are they? • Leave to enter/remain • Everyone bar: • British citizens • EEA nationals exercising Treaty rights • Ineligible unless presribed as eligible by regulations (per s.185 HA 96)

8. ELIGIBLE PSICs • Eligibility Regs: • Refugee • ELR & recourse to public funds • ILR unless: • Not habitually resident; or • Sponsered, less than 5 years since arrival and sponser not dead • Humanitarian protection • Pre-3/4/00 asylum seekers • ‘Public funds’ = housing & benefits

9. PERSONS FROM ABROAD • Not subject to immigrtaion control • Key issues are: • Qualifying right to reside • Habiual residence

10. RIGHT TO RESIDE Immigration Regs 2006 • Initial RTR • Last no more than 3 months from arrival in UK • Extended RTR • Jobseeker • Worker • Self-employed person • Self-sufficient person • Student

11. EXTENDED RTR • Jobseeker • Enters UK to seek employment • Genuine chance of finding employment • Worker • Three criteria: • Real & genuine, not marginal & ancillary • Must be for for and under direction of another • Must receive renumeration

12. EXTENDED RTR • Worker • Still defined as a worker if: • Temporarily unable to work as a result of illness or accident; or • Involuntary unemployed, and • registered as a job seeker, and • employed for year, and • unemployed for no more than 6 months or; • actively seking employment and genuine change of being engaged

13. EXTENDED RTR • Self-employed • Working outside relationship of subordination • Independent provider of services • Similar provisions as to workers re. retaining status if cease self-employment • Self-sufficient • Not a burden on UK’s social assistance system • Comprehensive sickness insurance cover in UK

14. EXTENDED RTR • Students • Enrolled on course with prescribed provider • Not a burden on UK’s social assistance system • Comprehensive sickness insurance cover in UK • ‘Social assistance system’ includes homelessness services

15. RIGHT TO RESIDE Immigration Regs 2006 • Permanent RTR • 5 years residence • Retired worker or self-employed person • Permanently incapacitated worker or self-employed person

16. RIGHT TO RESIDE EU Law • Ibrahim & Texeira • ECJ decision • Child of EU worker in full-time education • Child and primary carer retain RTR even after EU national has ceased to work • Okafor • Court of Appeal • Family members of deceased EU national • Failed to acquire permanent RTR in own right

17. RIGHT TO RESIDE & FAMILY MEMBERS • Family members have RTR so long as EEA national has RTR • Family members include: • Spouse/civil partner • Children of applicant or spouse/CP under 21 • Older relatives of applicant or spouse/CP who financially dependent • Dependance does not have to be total and can include physical dependance

18. RIGHT TO RESIDE & FAMILY MEMBERS • Extended family members include: • Non-married partner • Relative who was living as part of family before coming to UK • Family member with serious health problem who needs care from applicant or spouse/CP • To have RTR, EFM must be issued with: • EEA family permit, or • Registration certificate, or • Residence card

19. RIGHT TO RESIDE & FAMILY MEMBERS • Obtain RTR in own right if: • Family member of worker/self-employed EEA national; and • EEA national has died; and • Family member resided at time of death; and either • Deceased had worked for at least 2 years prior to death in UK; or • Died as result of accident at work or occupational disease

20. RIGHT TO RESIDE & FAMILY MEMBERS • Obtain RTR in own right if: • Family member of worker/self-employed EEA national; and • EEA national has died; and • Family member is themselves worker/self-employed/self-sufficient • If surviving family member is not EEA national, must also have lived in UK with deceased at least 1 year prior to death

21. RIGHT TO RESIDE & FAMILY MEMBERS • Obtain RTR in own right if: • Relationahip breakdown, even if no longer resides with EEA national; or • Divorce/annulment, and • Marriage/CP lasted at least 3 years, and • At least last year spent in UK, and • Has rights of residence or access to child in UK, or • Needs to stay in UK because of circumstances (e.g. abuse)

22. INELIGIBLE PERSONS FROM ABROAD • Reg 6(1) Eligibility Regs: • Not habitually resident • Right to reside as jobseeker or family member of jobseeker • Right to reside under initial 3 month right

23. HR EXEMPT • Reg 6(2) Eligibility Regs: • Worker • Self-employed • A2 national in registered employment • Family member of above • Permanent RTR because: • Retired worker or self-employed person, or • Permanently incapacitated worker or self-employed person

24. HR EXEMPT • Reg 6(2) Eligibility Regs: • Family member of worker/self-employed EEA national; and • EEA national has died; and • Family member resided at time of death; and either • Deceased had worked for at least 2 years prior to death in UK; or • Died as result of accident at work or occupational disease

25. HR EXEMPT • Reg 6(2) Eligibility Regs: • Left Montserrat after 1/11/95 as result of volcano • In UK as result of deportation, expulsion or removal • Arrived between 28/2/09 – 18/3/11 from Zimbabwe as part of resettlment programme

26. A2 NATIONALS • Romania & Bulagaria • Worker Authorisation Scheme • 12 months continous registered employment • Eligible whilst registered • Includes family members (unless au pair or seasonal agriculturalworkers)

27. A2 NATIONALS • After 12 months, same as rest of EEA • 30 days jobseeking • Exemptions from WAS • Does not apply to self-employed A2s • Due to expire 31/12/11

28. UK NATIONALS • Automatic qualifying right to reside by virtue of nationality • Must be habitually resident unless: • Deported from another country • Arrived via Zimbabwe evacuation programme

29. ENQUIRIES • s.183 HA 1996 • Trigger for Part 7 • Eligibility irrelevant • s.184 HA 1996 • Duty on LA • ‘Satisify itself…’ • s.188 HA 1996 • Duty to accommodate pending enquiries • ‘Reason to believe…may be…’

30. ENQUIRIES • UKBA • Rely on s.187 HA 1996 • Contact if status unclear • Register with Evidence & Enquiries Unit • Inform applicant before contacting UKBA • Public sector equality duty • Equality Act 2010 • Functions carried out with regard to eliminating unlawful discrimination and promoting equality of opportunity • Part 7 = ‘functions’

31. DUTIES & POWERS UNDER PART 7 • Interim accommodation (s.188) • Full duty (s.193) • Restricted case • Discharge if cease to be eligible • Right of review (s.202) • Refer to social services (s.213A) • Right to make new application if eligibility changes (s.183)