The Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006

Explanatory Note

(This note is not part of the Regulations)

These Regulations make provision for which persons from abroad will be ineligible or eligible for an allocation of housing accommodation under Part 6 of the Housing Act 1996 (“the Act”) and for housing assistance under Part 7 of the Act. These Regulations apply in England only.

By virtue of section 160A(1) and (3) of the Act, a local housing authority must not allocate housing accommodation under Part 6 of the Act to persons from abroad who are subject to immigration control (within the meaning of the Asylum and Immigration Act 1996 (c. 49)) unless they are of a class prescribed by the Secretary of State. Similarly, section 185(2) of the Act provides that such persons are not eligible for housing assistance under Part 7 of the Act unless they are of a class which is so prescribed.

By virtue of section 160A(1) and (5) of the Act, a local housing authority must not allocate housing accommodation under Part 6 of the Act to other persons who, although they are not subject to immigration control, are of a class prescribed by the Secretary of State as persons from abroad. Similarly, section 185(3) of the Act provides that the Secretary of State may make provision by regulations as to the descriptions of person who, although not subject to immigration control, are to be treated as persons from abroad who are ineligible for housing assistance.

These Regulations contain similar provisions to those in regulations 4 and 5 of the Allocation of Housing (England) Regulations 2002 and the Homelessness (England) Regulations 2000, as amended (which are revoked by these Regulations). The main changes are to take account of the implementation of Directive 2004/38/EC of the European Parliament and of the Council of 29^th April 2004 by the Immigration (European Economic Area) Regulations 2006. Directive 2004/38 makes some changes to the rights of free movement of citizens of the European Union (EU) and their family members, in particular by:

(a) the introduction of an initial right of residence of 3 months in a host member State for EU citizens and their family members provided they do not become an unreasonable burden on the social assistance system of the host member State – this right of residence is not conditional on the EU citizen being, for example, a worker or self-employed, as was previously the case under EU law;

(b) the introduction of a permanent right of residence in a host member State for some EU citizens.

Regulations 3 and 5 of these Regulations prescribe the classes of person subject to immigration control who are eligible for an allocation of housing accommodation and for housing assistance respectively.

Regulations 4 and 6 of these Regulations prescribe those classes of person who are not subject to immigration control but who are to be treated as persons from abroad who are ineligible for an allocation of housing accommodation and for housing assistance respectively. These classes relate principally to: British nationals; and to those EU citizens and nationals of Norway, Iceland, Liechtenstein and Switzerland who are not subject to immigration control. Under regulations 4(1) and 6(1), such persons will be ineligible for an allocation of social housing or for homelessness assistance if:

(a) they are not habitually resident in the United Kingdom, Channel Islands, Isle of Man or Republic of Ireland (unless exempted from the requirement to be habitually resident by regulations 4(2) or 6(2)); or

(b) if their only right to reside in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland is a right derived from the Treaty establishing the European Community to reside in another member State either for an initial period of up to 3 months after arrival or as a jobseeker.

Regulation 7 revokes the provisions which are replaced by these Regulations, and regulation 8 makes transitional provisions in relation to applications for an allocation of housing accommodation or housing assistance before 1^st June 2006.