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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