No public funds, no tenancy? Understanding immigration control

A person applies for a social housing tenancy. They have leave to remain in the UK, but with a "no public funds" condition attached – can the local authority say yes? The answer depends on immigration control. Get it wrong, and someone eligible could be wrongly turned away – or someone ineligible wrongly assumed to qualify.

In this article we break down what immigration control is, the definition of different leave to remain statuses and why this is so relevant to the housing sector.

What is immigration control?

Immigration control is the system through which people obtain permission to enter or stay in the UK. It’s administered by immigration officers working for UK Visas and Immigration, a division of the Home Office. Officers assess applications under the Immigration Rules, which are approved by parliament.

Immigration control is reserved to the UK Parliament, so the rules are the same across all four UK nations – whatever housing law is built on top of them locally at a devolved level.

What is the difference between indefinite leave or limited leave?

Permission to enter or stay in the UK is called “leave”. There are two main types:

Indefinite leave

Indefinite leave has no time limit and is usually granted without conditions. A person with indefinite leave can usually work and access public services. In some cases, indefinite leave is granted only if another permanent UK resident, known as a sponsor, agrees in writing to provide the person’s maintenance and accommodation. This agreement is called a maintenance undertaking. Indefinite leave without conditions is also known as settled status.

Limited leave

Limited leave is granted for a fixed period. A person can usually apply for a further period shortly before it expires. Limited leave is almost always subject to conditions, such as restrictions on working or accessing public services. A condition preventing access to public services is often called “no recourse to public funds” or just “no public funds”. People coming to settle in the UK, including refugees, are usually granted limited leave first – typically two blocks of 30 months – before they can apply for indefinite leave to remain.

Of new arrivals, it can be broken down by route as follows:

• Of all new arrivals 53% come through a study route and cannot work or access public funds
• People who arrive through a work route account for 29% of new arrivals and cannot access public funds
• People who arrive through a family route, such as those joining a British spouse, account for 9% of new arrivals and cannot access public funds until they acquire settled status, usually after five years
• The remaining 9% are mostly people arriving through humanitarian routes, who are often, but not always, granted leave with access to public funds?

What are the Immigration Rules?

The Immigration Rules are very long, complex and frequently amended. They include different requirements depending on the migrant’s circumstances and reason for coming to the UK. These include:

• People claiming asylum, who may be granted refugee status
• People seeking entry for other humanitarian reasons
• Students
• People applying for permission to work, with many sub-categories based on the type of work, qualifications and other factors
• People applying to join a family member, including a spouse
• Spouses of British citizens who have experienced domestic abuse
• People who have been trafficked or are victims of modern slavery
• Applicants to the EU Settlement Scheme, who are EU citizens or their family members who entered the UK before 1 January 2021.

The current system has applied since 1 January 1973, when the Immigration Act 1971 came into force and which introduced the requirement for permission to enter or stay in the UK.

Who is subject to immigration control?

Almost all foreign nationals are subject to immigration control. The main exception is long-term Commonwealth citizens who have the right of abode: certain long-term residents with historic rights who arrived before 1 January 1983 and have at least one UK born parent or married someone who did. They’re not British citizens and are often undocumented, which is how the Windrush scandal happened.

People who had lived, worked and paid taxes in the UK for decades were wrongly denied services or deported, simply because they lacked paperwork to prove a status they already held. It’s a stark reminder of what happens when eligibility rules are misapplied. 
Irish citizens are subject to immigration control but, uniquely, do not need permission to enter or stay in the UK and so have the right to work and access public services.

Why is this relevant for housing professionals?

Two gateway conditions control access to public housing, homelessness services and welfare benefits: the immigration control test and the habitual residence test. Both apply to the applicant or claimant, not to other household members. However, where a household member is ineligible, further rules may restrict the service provided by treating that person as if they were not part of the household at all.

A person subject to immigration control is generally ineligible for a local authority or Northern Ireland Housing Executive tenancy, homelessness assistance, universal credit, pension credit or housing benefit – all defined as “public funds”. The meaning of “person subject to immigration control” varies slightly depending on the service, and the housing and benefits definitions are somewhat wider than the definition used by UK Visas and Immigration.

What does immigration control mean for housing services?

So, what does this mean in practice? For housing and homelessness services, anyone who needs leave to enter – whether or not they have it – is treated as subject to immigration control and is ineligible unless they fall within one of the exceptions listed in regulations.

A person with settled status who is habitually resident is eligible under Class C; most other prescribed classes cover people with limited leave for humanitarian reasons, such as refugees or sponsored Ukrainians.  EU nationals and their family members with pre-settled status remain exempt, carrying over their pre-Brexit free movement rights.

For universal credit, pension credit and housing benefit, a person is subject to immigration control if they need leave but do not have it, have leave with a no public funds condition, or have a sponsor who has signed a maintenance undertaking . However, regulations exempt sponsored migrants who have been resident for at least five years, or whose sponsor(s) has died.

EU pre-settled status holders are always exempt, since their status comes with public funds access. Even so, passing the immigration control test isn’t enough on its own – claimants must also pass the habitual resident test.