Amendment to rules on eligibility for homelessness assistance

Monday 3 October 2016

Today the Government has laid the Allocation of Housing and Homelessness (Eligibility) (England) (Amendment) Regulations 2016 before Parliament. These regulations will amend the Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006, SI 2006/1294 to provide a new class of person who is eligible for homelessness assistance under Part VII Housing Act 1996.

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Today the Government has laid the Allocation of Housing and Homelessness (Eligibility) (England) (Amendment) Regulations 2016 before Parliament.

These regulations will amend the Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006, SI 2006/1294 to provide a new class of person who is eligible for homelessness assistance under Part VII Housing Act 1996. Namely:

Class G – a person who has limited leave to enter or remain in the United Kingdom on family or private life grounds under Article 8 of the Human Rights Convention, such leave granted—

  1. under paragraph 276BE(1), paragraph 276DG or Appendix FM of the Immigration Rules, and
  2. who is not subject to a condition requiring that person to maintain and accommodate himself, and any person dependent upon him, without recourse to public funds.

The purpose of these amending regulations is to ensure that homeless persons who have been granted limited leave to remain under Appendix FM to the Immigration Rules, who are not subject to a ‘no recourse to public funds’ condition, are able to access accommodation from their local housing authority under Part VII Housing Act 1996.

The need for the amendments arises from the fact that until July 2012, those seeking leave to remain in the UK relying on Article 8 ECHR grounds, would typically have been granted leave outside of the Immigration Rules. As such they would have been eligible for homelessness assistance, under class B, regulation 5(1) Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006, provided they were not subject to a no recourse to public funds condition.

But in July 2012, the Home Office introduced a new Appendix FM to the Immigration Rules to deal with these cases. Thereafter most Article 8 applications were dealt with within the rules, under Appendix FM. But the Home Secretary retained a discretion to grant leave outside of the rules where the requirements of the rules were not met, but the grant of leave was still necessary to avoid a breach of Article 8.

The unintended consequence of this change to the Immigration Rules was that homeless persons granted leave to remain on Article 8 grounds outside of the rules were treated more favourably than those granted Article 8 leave within the rules. On a literal interpretation of class B the former were eligible for assistance whereas the latter were not. On the face of it there was no particular justification for this differential treatment.

This led to a number of challenges both in the county court (see e.g. Samuels v Lewisham LBC, September 2016, Legal Action pp37-38, with myself instructed by Shelter Legal Services) and in the High Court (see the Doughty Street/Hopkins Murray Beskine cases of Romans and Alabi).

The latter litigation, to which the Department of Communities and Local Government was a party, precipitated this new amendment to the 2006 regulations to remedy the position.

The regulations also make similar changes in respect of eligibility for an allocation of social housing, In addition, the regulations remove class E from regulation 5 (which has been largely of historic interest for some time) which catered for certain pre-2000 asylum seekers whose claims had not been determined.

The amending regulations are subject to the negative resolution procedure and will come into force on 30 October 2016.

Click here to view the regulations.

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