Eligibility for homelessness assistance is tied to the person’s immigration status. The law around eligibility for homelessness assistance is complicated and this is only meant to provide a brief overview of the circumstances where a victim of trafficking may or may not be eligible for homelessness assistance. Individuals should always seek legal advice.
British citizens who are resident in the United Kingdom are eligible.
The following are eligible for homelessness assistance:
- Victims of trafficking who have been granted a residence permit/discretionary/exceptional leave to remain as long as their leave to remain is not subject to a condition that they have no recourse to public funds
- A person who has been granted humanitarian protection.
EEA nationals are from Iceland, Liechtenstein, Norway and Switzerland as well as 26 members of the European Union (Austria, Belgium, Bulgaria, Republic of Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain and Sweden).
Separate rules apply to some Croatian nationals until 30 June 2018. They may have to have a worker registration card and be working in accordance with the requirements of the registration card to be able to access homelessness assistance.
EEA nationals have an initial right to reside for a period of up to three months without having to do anything other than show their passport or identity card.
EEA nationals will have extended rights of residence beyond the initial three months as long as they are ‘a qualified person’. Their family members will also have a right to reside. A qualified person is an EEA national who is in the UK as a jobseeker, worker, self-employed person, a self-sufficient person or a student.
There are several ways in which an EEA national and his or her family members can acquire the right to permanent residence. This includes where an EEA national has lived in the UK for a continuous period of five years in accordance with the Immigration (European Economic Area) Regulations 2016/1052. Their family members will also acquire the right to permanent residence where they have lived in the UK with them for a continuous period of five years, in accordance with the regulations.
The following EEA nationals are among those eligible for homelessness assistance:
- Workers and their family members
- Self-employed and their family members
- A Croatian national who is authorised to work or who is exempted from being required to obtain authorisation (until 18 June 2018).
The term ‘worker’ has a wide meaning and can encompass those who work part-time or who work as au pairs.
A victim of trafficking may have been a ‘worker’ during the period of their exploitation, if they are able to show that they were:
- Pursuing activities that are ‘genuine and effective’ and not ‘marginal and ancillary’
- Performing services for and under the direction of another in exchange for payment.
An EEA national will retain their status as as a ‘worker’ or ‘self-employed’ person if they are temporarily unable to work or engage in activities as a self-employed person as a result of an illness or accident. A person will also retain their status as a worker if he or she:
- Is involuntarily unemployed after having been employed in the UK for over a year and has registered as a job seeker and has a genuine chance of being engaged
- Is involuntarily unemployed after having been in the UK for less than a year and has registered as a job seeker and has a genuine chance of being engaged, in which case they can retain their status as a worker for a period of six months
- Is involuntarily unemployed and has embarked on vocational training
- Has voluntarily ceased working and has embarked on vocational training that is related to their previous employment.
The primary carer of a child of an EEA national will be eligible for homelessness assistance if the child was in education while an EEA parent was residing as a worker and the child continues to be in education.
EEA nationals are not eligible for homelessness assistance if they are:
- An EEA national whose only right to reside comes from his status as a job seeker (this does not include those who retain the status of a worker)
- An EEA national who only right to reside comes from their initial right to reside for three months
- A person who has a right of residence because they are the primary carer of an EEA or British citizen child who would otherwise have to leave the European Union if their carer was not allowed to remain here. They may be able to access s.17 support from the local authority.
A victim of trafficking who is an EEA national will be able to obtain homelessness assistance if they are working or engaging in an activity as a self-employed person or if they have been granted asylum or discretionary leave to remain. However, if they are not working, they will only retain their status as a worker if they are temporarily unable to work due to an illness or accident or where they meet the requirements to retain the status of a worker while they are involuntarily unemployed.
If an ineligible victim of trafficking has a child or any care and support needs, they may be able to obtain accommodation and support either under s.17 of the Children Act 1989 or under the Care Act 2014. Where they do not have children or any care and support needs but have an outstanding application for a residence permit, they may be able to obtain support from the local authority under s.1 of the Localism Act 2011.
When is a person considered homeless?
A person does not have to be living in the streets to be classed as homeless. They will be considered homeless if they do not have any accommodation available for their occupation in the UK or elsewhere which they have a legal right to occupy. This may occur in circumstances where a victim of trafficking has been provided with accommodation by the Home Office but the accommodation has been withdrawn following a grant of leave to remain.
Where the individual has nowhere else to go, they will become homeless. Similarly, some victims of trafficking will be accommodated by friends or by a community organisation such as their church. The person may become homeless if they are asked to leave and have nowhere else to go.
Even if a person has accommodation, they will be considered homeless if it would not be reasonable to continue to occupy the accommodation. This could occur, for example, where the accommodation is overcrowded or where it is probable that the person’s continued occupation of the property would lead to domestic violence. A person could be considered to be homeless where the accommodation is unaffordable or where the accommodation is in such a state of disrepair that it would not be reasonable for the person to continue living there.
A person may also be considered homeless in circumstances where they cannot secure entry to a property they have.
A person is threatened with homelessness if it is likely that they will become homeless within 28 days.
The following are considered to have a priority need for accommodation:
- A pregnant woman.
- A person with dependent children or with whom dependants might reasonably be expected to reside.
- A person who is vulnerable as a result of old age, mental illness or handicap or physical disability or other special reason. This is the category that single victims of trafficking are most likely to fall under. The Supreme Court has recently found that vulnerable means significantly more vulnerable than the ordinary person if made homeless. Victims of trafficking may fall under this category for a number of reasons. For example, it is arguable that a victim of trafficking with post traumatic stress disorder is vulnerable as a result of mental illness. It is also arguable that a victim of trafficking may be vulnerable as a result of some other special reason in that they have previously been trafficked and may be at risk of being re-exploited.
- A person who is homeless or threatened with homelessness as a result of an emergency such as flood, fire or other disaster.
- Certain 16 or 17-year-olds who are not accommodated through social services. It is really important that a child who is aged 16 or 17 understands the consequences of being accommodated by the housing department as opposed to social services. They should be referred to a specialist solicitor with a legal aid contract to receive advice on this.
- Certain young people under the age of 21 who were, but no longer are, looked after or accommodated by the local authority or fostered.
- A person who has reached the age of twenty-one and who is vulnerable as a result of having been looked after, accommodated or fostered.
- A person who is vulnerable as a result of having spent time in prison.
- A person who is vulnerable as a result of having to leave a property as a result of domestic violence.
Applications for homelessness assistance can be made to any local housing authority and that local housing authority must make an assessment of what, if any, duty is owed to the applicant. If it finds that an applicant is homeless, eligible for assistance, has a priority need for accommodation and is not intentionally homeless, it is able to make a referral to another local authority if one of the conditions below are met.
It is important to note that local housing authorities are not obliged to refer an applicant to another local housing authority. It is a discretionary power. However, in practice many local authorities choose to exercise that power.
- Neither the applicant or a member of their household has a local connection with the place where they have applied and
- The applicant or a member of their household has a local connection with another local authority and
- Neither the applicant nor a member of their household runs the risk of being subjected to violence and/or abuse that may give rise to psychological harm.
A person has a local connection with the district of a local housing authority if:
- S/he is or was normally resident there, and that residence is or was of their own choice
- S/he is employed there
- S/he has family associations
- S/he has special circumstances
- S/he was given accommodation under s.95 of the Immigration and Asylum Act 1999 (asylum support) in the area.
In relation to the question of normal residence, local authorities will usually require individuals to be resident for at least six of the previous 12 months, or at least three of the previous five years. It is important to note that this is not a statutory test and each case should be considered on its own merit.
Some victims of trafficking may not want to remain in an area where they have received asylum support, where they have previously lived or been provided with accommodation in a safe house. They can apply to another local authority but arguments may need to be put forward on why they should not be referred to the local authority where they previously lived. They should be referred to a housing solicitor with a legal aid contract for help.
Where the applicant made an application for homelessness assistance to the district of another local housing authority in England and accepted an offer of private sector accommodation through the local authority within two years of making a new application for homelessness assistance to a new local housing authority.
Some local housing authorities find accommodation for applicants in the district of another local housing authority. In certain circumstances, if an applicant makes a new homelessness application to the local housing authority in the area where they are placed, a referral can be made to the original local housing authority.
There is a right of review of the decision to refer to another local housing authority. The application for review must be made within 21 days of being notified of the decision. An applicant can request accommodation pending the review. The applicant may be able to appeal any decision on a point of law.