CA-2024-001773 - [2025] EWCA Civ 1057

Housing Assistance

The decision under appeal is the Respondent’s decision pursuant to section 184 of the Housing Act 1996 that the Appellant is not eligible for homelessness assistance. It is not necessary to recite every twist and turn in the legislation, especially as the domestic regime is not the subject of the Appellant’s attack. I will summarise the position, drawing again on the explanation contained in the witness statement of Lorna Fraser to which I have already referred. The Appellant applied unsuccessfully before Jay J to amend her grounds of appeal to raise a point on the domestic law relating to housing assistance (an application which is recited at paragraph 30 of the judgment below), which application was opposed by the Respondent and not supported by either the Secretary of State or Shelter, and was in the event rejected by the judge (for reasons set out in the Judgment below at paragraph 31). What follows, therefore, is the position as the Secretary of State and Respondent understand it to be, which is not in dispute for the purposes of this appeal.

Eligibility for housing assistance is determined by section 185 of the Housing Act 1996. By section 185(1) of that Act, a person is not eligible for assistance under Part 7 if they are a “person from abroad” who is ineligible for housing assistance. By section 185(2) a person who is subject to immigration control (“PSIC”) within the meaning of the Asylum and Immigration Act 1996 is not eligible for housing assistance unless they are of a class prescribed by regulations made by the Secretary of State. A PSIC is defined (by section 13(2) of the Asylum and Immigration Act 1996) as a “person who under the [Immigration Act 1971] requires leave to enter or remain in the United Kingdom (whether or not such leave has been given)”. Section 185(3) of the 1996 Act provides that the Secretary of State may make provision by regulations for other descriptions of persons who are to be treated, for the purposes of Part 7, as persons from abroad who are ineligible for housing assistance.

Prior to 31 January 2020 and during the transition period, section 7(1) of the Immigration Act 1988 (“IA 1988”) provided that an EU citizen residing in the UK pursuant to an enforceable EU residence right did not require leave to enter or remain. Such a person was not therefore a PSIC and that person would be eligible for housing assistance unless they fell within a description of persons who were treated as ineligible pursuant to regulations under section 185(3). An EU citizen residing in the UK but not exercising any enforceable EU right to do so would be a PSIC and would be ineligible for housing assistance, unless they fell within a class prescribed as eligible by the Secretary of State in regulation: see section 185(2).

The relevant regulations under sections 185(3) and 185(2) are the Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006 (SI 2006/1294) (the “Eligibility Regulations”). Regulation 6(1A) of the Eligibility Regulations (as they were amended by the Allocation of Housing and Homelessness (Eligibility) (England) (Amendment) (EU Exit) Regulations 2019 (SI 2019/861)) provided that PSS was to be disregarded for the purposes of determining eligibility for housing assistance during the transition period. The consequence was that, during the transition period, a person with PSS but with no enforceable EU right to reside was a PSIC, was not within a prescribed class, and therefore remained ineligible for housing assistance.

At the expiry of the transition period and as part of the package of legislative measures to effect withdrawal from the EU, section 7(1) of the Immigration Act 1988 was repealed with the effect that from that date an EU citizen did require leave to enter or remain, and such a person was therefore a PSIC for the purposes of the Asylum and Immigration Act 1996. Saving provisions were contained in Schedule 4 to the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations 2020 (SI 2020/1309, the “2020 Regulations”). Paragraph 1(b) of Schedule 4 to the 2020 Regulations defined the “post-transition period group” to include persons like the Appellant who had limited leave to enter, or remain in, the United Kingdom by virtue of “residence scheme immigration rules”. Section 17(1)(a) of the European Union (Withdrawal Agreement) Act 2020 provided that: “In this Part, ‘residence scheme immigration rules’ means … Appendix EU to the immigration rules …”.

Thus, a person with PSS (ie, limited leave to enter or remain in the UK granted under Appendix EU) was and is a member of the post-transition period group for the purposes of Schedule 4 to the 2020 Regulations.

The combined effect of paragraphs 2, 5 and 6 of Schedule 4 is that a member of the post-transition period group is deemed not to be a PSIC for the purposes of section 185 of the Housing Act 1996, and therefore (subject to any regulations made under section 185(3)) is not ineligible for homelessness assistance, provided that at the time of their application for assistance they would have satisfied the condition under section 7(1) of the IA 1988, ie, they would have had an enforceable EU residence right. But a person who would not have had an enforceable EU residence right is not covered by the saving in Schedule 4 and is a PSIC for the purposes of the Asylum and Immigration Act 1996.

By operation of section 185(2) of the Housing Act 1996, the Appellant would not have had an enforceable EU residence right at the time of her claim for housing assistance and, applying the above analysis, she was ineligible for housing assistance on the basis of domestic law.