Immigration status and eligibility for public funds

Immigration status and eligibility for public funds

2.1 Common types of immigration status

The UK’s immigration laws are complex, and it can be difficult to establish whether or not a person has leave to remain, and if so, on what basis. It is the responsibility of the Home Office to decide what a person’s immigration status is, usually after the person has made an application, and only a properly OISC regulated immigration adviser can lawfully advise an individual on their immigration matter. However, social workers and other local authority officers will need to be able to identify a person’s immigration status and understand how this impacts on their entitlements, in order to be able to determine what type of support and services may be available to migrants and their families. The information in this section intends to provide a basic summary of the different types of status people may have. 

British nationality/ citizenship

A British citizen has the right of abode in the UK, which means that they can enter the UK when they wish to, even if they have never lived here before. British nationality law is complex and British citizenship may be acquired by birth, descent, or by making an application to the Home Office to register or naturalise. A child will not automatically be British solely by being born in the UK, following a change in the law that has applied since 1 January 1983.

Non-EEA nationals 

Most people who are nationals of countries that are outside of the European Economic Area (non-EEA nationals) are required to obtain permission to enter or remain in the UK. This will involve applying for entry clearance (if they are outside of the UK) and leave to enter (on arrival to the UK), or leave to remain (within the UK) under the UK Immigration Rules. These rules set out the categories under which a person can apply, for example, to work, study, visit, join family or seek international protection. There will also be some instances where the Home Office may grant permission to remain in the UK on a discretionary basis or to prevent a human rights breach. Some key terms are set out in the table below.

Certain citizens of Commonwealth countries may have the right of abode and will be free to enter and live in the UK without being required to obtain leave to enter or remain. 

A person who is living in the UK without any immigration permission, when they are required to have this under the UK’s immigration laws, may be unlawfully present and may also be described as having irregular immigration status or as a person without leave.   

Term

Description 

Additional information 

Leave to enter

Immigration permission issued by an Immigration Officer on entry to the UK. 

Most people are required to apply for prior entry clearance at a visa application centre abroad, which will be provided as a vignette (stamp) in the person’s passport.

Leave to remain 

Immigration permission issued by the Home Office, which is applied from within the UK.

An application can be made by completing a form and submitting this online, by post or in person. Paper forms are being phased out and will be replaced by an online system. 

Indefinite leave to enter 

Indefinite leave to remain 

Immigration permission with no time limit on the length of stay in the UK. Also referred to as ‘settled status’. 

May be lost if the person leaves the UK for two years or longer. 

In most cases has no conditions.

Limited leave to enter

Limited leave to remain 

Immigration permission issued for a time limited period. Leave may be granted under the Immigration Rules, outside of the rules or on a discretionary basis. 

Will have conditions imposed, for example, restrictions on employment and access to public funds.

A person may be on a settlement route depending on the type of leave they have, which means they can apply for indefinite leave to remain after a specified period of time, usually 5 or 10 years. 

Visa overstayer 

A person who had leave to enter or remain in the UK for a limited period and is currently without leave because their previous leave has expired, or their leave was curtailed so it expired early.

Will be treated as unlawfully present and may be issued with a removal decision and reporting instructions. 

Will not be able to work and may be subject to sanctions on certain services (sometimes referred to ‘hostile environment’ measures). 

Protection (asylum) claims

The table below contains some common terms associated with people who have claimed asylum in the UK because they fear persecution in their country of origin, including the status they might acquire following the outcome of their asylum claim. 

Term

Description 

Asylum seeker

A person who has made a claim to the UK government for protection (asylum) under the United Nations Refugee Convention 1951 and is waiting to receive a decision from the Home Office on their application or from the Court in relation to an appeal.

Has permission to live in the UK but may be subject to reporting requirements and will not usually have the right to work, although there are some exceptions to this. 1

Refugee status 

A person who has been recognised as having a well-founded fear of persecution in their country of origin for reasons of race, religion, nationality, membership of a particular social group, or political opinion under the UN Refugee Convention 1951. 

Will be granted five years limited leave to remain and can apply for indefinite leave to remain after five years.

Humanitarian protection  

A person who has been recognised as having a real risk of serious harm or well-founded fear of persecution in their country of origin, but not for any reason set out under the UN Refugee Convention 1951. 

Will be granted five years limited leave to remain and can apply for indefinite leave to remain after five years.

UASC leave or section 67 leave, or Calais leave

When an Unaccompanied Asylum Seeking Child (UASC) is refused asylum and humanitarian protection, they may be granted another form of leave, depending on the reception conditions in their home country and how they arrived in the UK.

ARE asylum seeker

A person who has made an unsuccessful claim for asylum which has been finally determined by the Home Office and/or courts, has no further right to appeal, and has not been granted any other form of leave to remain. (The UK Government uses the term ‘failed asylum seeker’ in legislation and guidance). 

It is important to be aware that a person’s immigration status may change. For example, a person seeking asylum, who has been refused and exhausted their rights to appeal, could make further submissions to the Home Office raising new asylum grounds that are accepted as a fresh claim, and become an ‘asylum seeker’ again. If their claim is successful, they would be granted leave to remain in the UK.

EEA & Swiss nationals

The rights of nationals of European Economic Area (EEA) countries*, and their family members, to enter and live in the UK are governed by European Union (EU) free movement laws. As the UK is due to leave the EU on 29 March 2019, the entry and residence rights of EEA nationals will change and they will become subject to the UK Immigration Rules that currently apply to nationals of countries outside of the EEA. A new immigration system with revised Immigration Rules is due to be implemented by 1 January 2021. If a deal is reached between the UK Government and the EU, there will be a transition period which is expected to last until 31 December 2020, during which time, free movement will continue to apply. In the event of a ‘no deal’ scenario, free movement will end on 29 March 2019 and temporary arrangements will be made for EEA nationals entering the UK after this date, until the new immigration system is implemented. 

EEA nationals living in the UK by 29 March 2019 (or by the end of any transition period), will be required to apply under the EU Settlement Scheme, which has been introduced by the UK Government to enable EEA nationals and their family members to settle in the UK permanently after free movement ends. Under the scheme, EEA nationals will be granted leave to remain under the Immigration Rules. 

*For the purpose of this guidance, the term ‘EEA national’ includes Swiss nationals. 

EEA nationals and most family members are not required to obtain documentation to confirm their residence rights under EU free movement laws. However, many non-EEA family members will apply for a document to confirm their status to enable them to work and access services. Also, those applying under the EU Settlement Scheme will obtain a different form of immigration status. Some key terms are set out in the table below.

Term

Description 

Additional information 

EEA right to reside 

The rights of EEA nationals and their family members to enter and live in the UK are set out in the European Union (EU) Free Movement of Persons Directive 2004/38/EC, the Immigration (European Economic Area) Regulations 2016, or are derived from EU treaties.

A right to reside is acquired:

  • During the first three months of residence (initial right of residence) 
  • When an EEA national is: jobseeking, working, self-employed, self-sufficient or studying
  • When the person is the family member of an EEA national with a right to reside 

EEA permanent residence 

The right to live in the UK permanently may be acquired by an EEA national, or their family member. 

Permanent residence is acquired:

  • By an EEA national when they have exercised a right to reside in the UK (on a single or combination of grounds) for five years
  • By a non-EEA family member who has exercised a right to reside in the UK as the family member of an EEA national for five years
  • In some instances following a shorter residence period

EEA family permit

A document issued overseas to allow a non-EEA family member to enter the UK with or to join the EEA national.  

The permit is valid for six months and normally, the person would apply for an EEA residence card if they want documentation to confirm their right of residence as a family member.

EEA residence card  

A document issued by the Home Office to evidence a non-EEA nationals’ right to reside as the family member of an EEA national.  

A residence card will be valid for five years. Enquiries will still need to be made to establish whether the circumstances at the time the document was issued continue to apply.  

Pre- settled status

Limited leave to remain granted for up to five years under the EU Settlement Scheme. 

Can apply for indefinite leave to remain under the EU Settlement Scheme after five years’ continuous residence in the UK.

Settled status

Indefinite leave to remain granted under the EU Settlement Scheme. 

There is no time limit on the person’s length of stay in the UK but may be lost if they leave the UK for five years or longer.

 More terms are set out in the glossary and for more information, see: