PM announces stop to “soft touch” approach to housing and benefits for immigrants

01 Jan 2018

Housing, Public Law and Judicial Review

The proposed measures announced by the PM during his speech on immigration today include:

  • A requirement for local housing authorities to apply a local residence test under their allocation schemes, so that recent immigrants will not qualify for social housing
  • Withdrawing JSA and other unemployment benefits from EEA jobseekers after 6 months, unless they can prove that they have a genuine chance of obtaining employment

The initial indication is that the reform of housing eligibility rules will take the form of statutory guidance (not regulations) issued this Spring, recommending a local residence test of at least two years.

The Localism Act 2011 gave local authorities the power to set their own criteria for qualifying for social housing. In its response to the announcement, the Local Government Association stated that local councils should decide how to meet housing need. Keeping families in temporary accommodation under the homelessness legislation is likely to be more expensive for local authorities than a permanent allocation.

Insofar as the residence rules are tougher for non-nationals, there will be an issue as to whether they discriminate unlawfully. In Morris v Westminster City Council [2006] 1 WLR 505, the Court of Appeal made a declaration of incompatibility in relation to the requirement to disregard children from abroad when determining priority need under the homelessness legislation. However, in Bah v UK (2012) 54 EHRR 21 the Strasbourg Court upheld the same legislation, as a reasonable measure to restrict access to social benefits based on immigration status. Both of those cases concerned children without any settled immigration status. By contrast, the guidance proposed today will affect persons after they have acquired a settled immigration status in the UK and have become eligible for social housing. It may therefore be harder to justify any discriminatory effect.

It is no accident that the proposal to restrict access to JSA is being made at the time when the transitional stage of Romania and Bulgaria’s accession to the EU, implemented by the Worker Authorisation Scheme, is coming to an end. It has echoes of the Government’s response to the Zambrano ruling in October last year. What are commonly known as the Zambrano Regulations withdrew eligibility for benefits and housing from persons with this derivative right of residence. The Zambrano Regulations are currently being challenged in the High Court and Upper Tribunal. The outcome of those cases may have an important impact on the current proposals, which also have the potential to leave persons residing in the UK facing destitution.

The proposals in relation to welfare benefits also raise important issues for social services. Under the ruling in R(Clue) v Birmingham City Council [2011] 1 WLR 99, where families with children have an outstanding application for leave to remain in the UK on Human Rights grounds, but no access to mainstream benefits, social services may be required to provide assistance.

Local authorities will therefore need to consider whether their allocation schemes need to be amended to reflect the new guidance on local residence; and to prepare for a potential new class of applicants for assistance who have no access to mainstream benefits.