‘Right to reside’ restrictions on accessing social housing – Circular 41/2012 outlining the test for right to reside is overly broad and its strict application by local authorities is resulting in unfair and potentially unlawful decisions

We have been dealing with several cases recently where clients have been refused access to the housing list on the basis that they do not satisfy what is known as the ‘right to reside’ test. We have been successful in overcoming some refusals and have several cases that are ongoing, all of which highlight the shortcomings of the test and the way it is currently being applied.

The ‘right to reside’ test places restrictions on non-nationals accessing the housing list. The restrictions are set out in Circular 41/2012 which was issued in December 2012 by the then Department of Environment, Community and Local Government. The Circular updated a previous Circular on this issue (Circular SHIP 47/2011).

Circular 41/2012 – Access to social housing supports for non-Irish nationals

The Circular sets out guidance for local authorities on when a non-national will be eligible for inclusion on the local authority housing list. The categories that are stated to be eligible include, in summary:

  • spouses/civil partners of Irish nationals where a joint application is being made
  • certain EEA nationals and their family members
  • recognised refugees or individuals with subsidiary protection status
  • non-nationals who have accrued five years Stamp 4 residency status or who have Stamp 4 residency status for five years into the future.

Summary of shortcomings that MLRC has identified with the wording of the Circular and its application

We have identified several shortcomings in the Circular and these will be familiar to many organisations that work in the area of housing and homelessness. The main shortcomings include:

  • The Circular does not and cannot cover the circumstances of all non-national applicants who are also navigating the immigration system, i.e. a person may have a right to reside for reasons not noted in the Circular.
  • If they are not explicitly covered by the Circular, the applicant risks being refused access to the housing list and this refusal may be unlawful.
  • The Circular is for the most part being applied by local authorities in an inflexible manner without any exercise of discretion leading to unfair and potentially unlawful outcomes.

The Circular does not cover all the bases on which a person may have a right to reside

The Circular does not and potentially cannot cover all of the bases upon which non-nationals may have a right to reside. It is designed to impose restrictions on non-national applicants such that those who enjoy settled status here and those who have established links in the State are eligible for inclusion on the social housing list. There are however some particular gaps in the Circular that are of concern and that create considerable confusion.

One particularly glaring lack is the absence of any provision for victims of trafficking. Victims of trafficking are subject to distinct administrative immigration arrangements and once recognised as victims of trafficking, are issued with a specific immigration permission that reflects this. Such a permission is not however covered in the Circular and we are aware from our work with partner organisations that this often presents major difficulties for vulnerable individuals accessing the housing list and other housing supports.

We are dealing with several cases involving EEA nationals who are not expressly covered in the Circular yet enjoy a long term right to reside. These include EEA nationals who were previously working in the State and who have children in full time education in Ireland. These individuals generally enjoy a long term right to reside in the State. However, their circumstances are not covered by the Circular.

Related to this, the Circular purports to cover all EEA nationals who qualify as ‘EEA workers’ under Directive 2004/38/EC, but in fact it does not do so.  It does not reflect the terms of the relevant Article (Article 7) of the Directive and does not set out all circumstances in which an EEA national may qualify as an ‘EEA worker’. This lack leads to confusion and refusals that may not be well-founded.

Local authorities are frequently refusing applicants for social housing on the incorrect basis that they don’t have a right to reside

In practical terms, our experience is that when an applicant does not fit within one of the categories of the Circular, when they go to submit their application for social housing, they are simply turned away at the desk without their application being properly assessed. A local authority is under a statutory obligation to assess all applications for social housing support. Such a practise of turning applicants away without proper consideration is in our view unlawful and presents a further problem that the Circular is causing on the ground.

 Local authorities are frequently applying the Circular in an overly rigid way not taking into account the individual circumstances of the person applying

The Circular is a policy/guidance document and does not bind the Council as would statute. It is our recent experience that local authorities, even when presented with exceptional cases, insist on applying the Circular in a fixed manner with no flexibility to take account of the individual circumstances of the applicant.

Examples of MLRC cases

We have worked on two cases recently where the local authority should properly have applied a more flexible approach to the right to reside test as laid out in the Circular. One case involved a victim of domestic violence who was married to an Irish national. The local authority refused the applicant access to the social housing list on the basis that she did not make a joint application with her Irish spouse, even though that was not possible and would have put her at risk.

In another case, the applicant had been in the State, working and paying tax for over thirteen years and was lawfully resident in the State throughout. The local authority refused the applicant access to the social housing list as the applicant did not have Stamp 4 residency status for five years as required by the Circular. This case has now been resolved following our involvement.

 

 

 

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All information provided on this Blog is provided for information purposes only and does not constitute legal advice or a legal contract between this Blog and any person or entity unless otherwise specified.  Click here to read more.

 

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Thank you to Sarah Burns, TCD Clinical Legal Education Intern, for her excellent work with MLRC

sarah-burns-cle-intern-sept-2016

In September, MLRC was delighted to welcome Sarah Burns, who worked with us as part of her Clinical Legal Education Training Programme with Trinity College Dublin.

Sarah is a final year law student in Trinity College Dublin and has a strong interest in constitutional law, human rights law and public interest law. Sarah has been involved in justice & peace committees and is looking forward to getting involved in Trinity FLAC during her final year in college.

We are very grateful to Sarah for her contribution to MLRC’s case work, policy work and research, all of which she did with great energy and diligence and care.  Thank you to Sarah for supporting MLRC’s work for those who are homeless or at risk of becoming homeless.

 

 

 

 

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MLRC hosts training on social welfare law for staff of Focus Ireland, delivered by Prof Gerry Whyte, School of Law, TCD

In July, MLRC held a two day training session in Social Welfare Law for staff of Focus Ireland, which was delivered by Professor Gerry Whyte, School of Law, Trinity College Dublin.

The training was for the staff of Focus Ireland and feedback included:

“Covers everything!”

“The training got it just right.”

“Interesting and well delivered training.”

“The training produced by Gerry was excellent. All areas of social welfare covered.”

“Training was offered in a clear and concise manner.”

“It was a very detailed informative and factual presentation over two days.”

This training provided a detailed overview of social welfare law and covered topics including:

  • Sources of social welfare law
  • Claims and appeals
  • Social Insurance
  • Social Assistance
  • Rates of payment
  • Supplementary Welfare Allowance
  • Unemployment and low pay
  • Illness, incapacity and caring
  • Family payments
  • The elderly and survivors

Professor Whyte is a leading authority on social welfare law and we are very grateful to him for delivering this comprehensive and detailed training.

If your organisation would like to arrange MLRC training on housing law & related social welfare law, please register your interest with us on 01 4537459 or by email info@mercylaw.ie.

 

 

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MLRC delivers open training session on housing and related social welfare law – 7 September 2016

img_1337As part of MLRC’s work, we provide training in housing law to organisations and individuals working in the field of homelessness. On 7th September MLRC held an open training session in housing law & related social welfare law for agencies whose clients’ issues include those of homelessness or risk of homelessness.  These agencies included staff and volunteers from Ballymum Community Law Centre, Irish Housing Network, Threshold Galway, Ballyfermot Social Intervention Initiative, and CIC Dun Laoghaire.

Our training session gave practical advice and information, which will help participants deal even more effectively with clients’ housing issues. “An appropriate amount was covered, both relevant and informative.”

The training session focused in particular on providing an overview of housing law and the law relating to homelessness and common legal issues arising with accessing these legal entitlements, the new procedure for evictions from local authority housing; HAP, and  the recent changes to the regulation of approved housing bodies

In their feedback, attendees rated the session as excellent, that it was very good and informative, and that it will make a large difference in their work. In particular, they identified that the training on the following was particularly useful:

  • Access and Eligibility for Social Housing  –  rent arrears need not be cleared but plan to pay must be adhered to
  • Right to housing not protected in constitution
  • Clarity around HAP
  • Eviction procedures
  • How to challenge/appeal decisions and how to request information
  • Role of ECHR
  • Rights in relation to priority on housing list
  • Details of case studies
  • The local connection test – the basis and limits of it
  • Tenant’s rights regarding issues of anti-social behaviour

Participants said the open training brought a “good housing mix of people from different organisations, as there’s an opportunity for sharing learning” and that it was “great to meet a diversity of service providers and share concerns and experience”. Also that the “case studies very helpful” and the “information pack very useful for reading”.

If you are interested in arranging a training session by MLRC, please contact Shauna on 01 4537459 or at shauna@mercylaw.ie. We would be very happy to hear from you and discuss the training that would be most useful for you.

 

 

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All information provided on this Blog is provided for information purposes only and does not constitute legal advice or a legal contract between this Blog and any person or entity unless otherwise specified. Click here to read more.