ADVISER: Right to reside for foreign nationals with an Irish spouse

Faith, an adviser with our Community Housing Advice Partnership, recently helped to have a young mother’s housing benefit payments reinstated.  The Community Housing Advice Partnership offers a support service to partner agencies who work in the voluntary sector and need expert advice to deal with complex housing cases.

Residence permit renewal denied due to separation

Sarah is from New Zealand and the mother of three children.  Her husband has dual nationality, holding both Irish and New Zealand passports.  Sarah and Donal emigrated to Dublin from New Zealand in 2010. After living and working there for some time, they decided to move to Belfast and arrived in Northern Ireland in mid 2013.

As Donal was an Irish national, both he and Sarah, his spouse had an absolute right to reside in the UK and to claim benefits.   Although she was not required to, Sarah applied for and was issued with a residence permit as evidence of her right to live and work in the UK.  Sarah figured that it might be easier to find a job if she could easily produce evidence of her right to work in the UK.  

Sarah and Donal separated last year and Sarah left the family home.  She went to the Housing Executive, presented as homeless and was allocated an NIHE tenancy. Although Sarah and Donal have separated, they are not divorced and Sarah is still regarded as the family member of an Irish National for the purposes of her right to reside in the UK.  

When Sarah applied for a renewal of her residence permit, it was turned down. At this point all of her benefits were stopped and she was left with no income. Sarah had to ask Donal if the children could move in with him full time as she had no money coming in and couldn’t meet their needs.

Risk of eviction due to rent arrears

Before long, Sarah fell into rent arrears.  She applied for Housing Benefit again but was asked to provide a copy of her visa to prove that she has a right to claim benefits in the UK.  By this stage, Sarah’s rent arrears were so high that the Housing Executive was considering taking possession action.  Sarah was referred to Housing Rights by a support worker at a local charity.

After examining the case, our adviser, Faith, felt that the Housing Executive may not have considered Sarah’s rights as the spouse of an EU national and had considered her case purely based on the refusal to renew her residence permit. 

It appeared as though the Housing Executive had treated Sarah in the same was as they would the spouse of a British citizen, but had failed to consider Sarah’s rights as the spouse of an EEA national.  Under European law Sarah should have been considered eligible for certain benefits because she is married to an EU national who is employed in the UK.   

Using government guidance to assist clients

Faith combed through Department for Work and Pensions and Department for Social Development guidance relating to housing benefit to find out what should have happened in Sarah’s case. 

Faith found information to assist her client in the Housing Benefit Decision Maker’s Guidance Memo Vol 2/35, which states

The Secretary of State for the Home Department can decide to remove a person from the UK, revoke, refuse to issue, or refuse to renew documents certifying a right to reside and can cancel a person's right to reside in certain specific circumstance. The Imm (EEA) Regs now provide that, where a person had a right to reside under those regs and then a decision ("the relevant decision") is made that a person is not entitled to reside, that right will be deemed to continue during any period in which

1. an appeal against the relevant decision could be brought within the time limits, while the person is in the UK or

2. an appeal against a relevant decision, brought while the person was in the UK is pending (within the meaning in specific legislation)

Housing Benefit Decision Maker’s Guidance Memo Vol 2/35

This guidance clearly sets out that Sarah should continue to have a right to reside throughout the appeal process. As the spouse of an Irish National, she continues to have the right to work and claim benefits in the UK.

Asserting Sarah’s right to reside as the partner of an EEA national

Faith put her arguments to the Housing Executive.  The initial response stated that Sarah had to pass the Immigration Control Test.  This confirmed Faith’s concerns that Sarah was being treated in a similar way to the spouse of a UK national and that her rights as the spouse of an EEA national had not been properly considered.  

Irish nationals who are in the UK enjoy the same residency rights as British nationals and so it may seem as though the spouse of an Irish person should be given identical treatment to the spouse of a UK national.  However, it is important to remember that while Irish nationals enjoy extended rights in the UK, over and above other EEA nationals, they have standalone rights as members of the EEA, and these cannot be diluted.

Faith put this argument to the decision maker and the matter was referred to the Housing Executive’s legal and policy teams for further investigation.  Senior decision makers at the Housing Executive found that Sarah should continue to be considered to have a right to reside during the appeals process and as the spouse of an Irish National, this means she has a continued right to work and claim benefits in the UK.

Sarah’s Housing Benefit claim was reinstated and backdated. She no longer has arrears on her rent account and action to recover possession of her tenancy has stopped.

Advising nationals of other countries

Advising foreign nationals on their housing rights can be complex. Housing Rights provides a detailed training course which looks at the complicated right to reside and habitual residence tests and how these are used to determine eligibility for homelessness assistance and Housing Benefit.  The course will next run in June 2016