In January 2020, this guidance was reviewed locally and additional information was added in relation to the areas which should be covered by the Social Work Assessment and actions required on completion of the Assessment.
- Who are Families with No Recourse to Public Funds
- Role of the Local Authority
- Procedures for Working with Families with no Recourse to Public Funds
1. Who are Families with No Recourse to Public Funds
People who have no legal entitlement to financial support or assistance from the state are people who have no recourse to public funds. They may self-refer for support or are referred from other agencies.
The definition of 'subject to immigration control' is set out in section 115 (9) Immigration and Asylum Act 1999, and includes non-EEA nationals who:
- Require leave to enter or remain in the UK but do not have it;
- Have leave to enter or remain in the UK which is subject to a condition that they do not have recourse to public funds; or
- Have leave to enter or remain in the UK given as a result of a maintenance undertaking (for example, adult dependant relatives of people with settled status).
If an adult has immigration permission with NRPF, the statement 'no public funds' will be written on their immigration documentation. If there is no such statement, then it should be assumed that they do have access to public funds.
Additionally, there are other groups of migrants that may request subsistence and/or accommodation from the local authority under community care provisions because they are unable to access welfare benefits and local authority housing, and therefore require NRPF services.
Children's Social Care Services are likely to be approached by families with children or by children or young people who are unaccompanied or separated from their parent or legal/customary caregiver.
These families may be:
- People with refugee status from another European Economic Area (EEA) country other than the UK or are dependents of people in the UK who have refugee status from a EEA country other than the UK;
- People who are citizens of an EEA country other than the UK or are the dependents of people who are citizens of an EEA country other than the UK;
- Failed asylum seekers who have exhausted their appeal rights and who have failed to co-operate with removal directions;
- Persons who are unlawfully present in the UK who are not asylum-seekers, for example, people who have overstayed their leave to remain, people who have been trafficked into the country, people who entered the country illegally;
- People who have been granted limited leave to remain on the condition that they have no recourse to public funds, for example, people who are spouses/unmarried partners of persons with British citizenship or indefinite leave to remain, who have been granted a 2 year probationary period on condition of no recourse to public funds;
- People who have been granted discretionary leave to remain, for example, 'separated' children or young people from non-suspensive appeal countries whom the Home Office does not grant either refugee status or humanitarian protection, and are given 12 months leave to remain or until their 18th birthday, whichever is shorter;
- People on student visas who are unable to work and have no recourse to public funds.
(This list is by no means exhaustive and provides examples of the categories of people who may present to Children's Social Care Services as destitute and have no recourse to public funds.)
2. Role of the Local Authority
The local authority is restricted by legislation in what it can provide in terms of assistance and support for all the categories of people outlined in the previous section.
Under Section 54 of the Nationality, Immigration and Asylum Act 2002, families who fall under categories a. to d. are not eligible for support from the local authority under Sections 17, 23C, 23CA, 23CZB, 24A or 24B of the Children Act 1989. They are also not eligible for adult social care support under the Care Act 2014 or accommodation under homelessness legislation.
No Recourse to Public Funds (NRPF) applies to a person who is subject to immigration control in the UK and has no entitlement to welfare benefits or public housing. These restrictions are set out in Section 115 Immigration and Asylum Act 1999 (IAA).
The Home Office allows for limited forms of assistance to be given by local authorities to some families and this could be in the form of:
- Travel assistance to leave the UK to people with dependents under 18 years;
- Temporary accommodation to people with dependents under 18 years awaiting the implementation of their travel arrangements;
- Temporary accommodation to people in category d. with dependents under 18 who are awaiting instructions for removal.
However, the local authority still has the following duties towards all children, young people and families regardless of their status:
- To carry out a Child in Need Assessment for all children under 18 years old who are in families, where there may be concerns about a child/children's welfare and/or safety under the Children Act 1989 (including any issues that may indicate that the child is or has been trafficked or a victim of compulsory labour, servitude and slavery);
- To carry out a Child in Need Assessment for all 'separated' children under the age of 18 and to provide them with services in line with needs identified under the Children Act 1989;
- To carry out an assessment of an adult for community care services under the Care Act 2014 where the adult's need for such services have not arisen solely due to destitution and/or to avoid a breach of the adult's human rights which would otherwise occur if no services were provided.
There are considerations that need to be made when determining whether assistance under section 17 can be provided to a NRPF family, as the parent's immigration status will affect what support options may be available:
- Parents with NRPF cannot access welfare benefits, homelessness assistance, social housing and, in some cases, employment;
- Exclusions to section 17 support apply to some parents, which mean that the local authority may only provide accommodation and financial support to such families when this is necessary to prevent a breach of the family's human rights or European Treaty rights, usually when there is a legal or practical reason why the family cannot return to the parent's country of origin.
3. Procedures for Working with Families with no Recourse to Public Funds
Families with no recourse to public funds usually present in one of two different ways:
- Self-referral without an appointment;
- Self-referral or referral by an external agency, by appointment.
Social Workers need to consider if there is a possibility or evidence to suggest that there are child in need concerns or the potential for child in need concerns. This may include health needs affecting the parent/s or children, for example, chronic health conditions, physical disabilities, learning disabilities, or child protection issues, e.g. neglect, domestic violence and abuse.
If there is a strong possibility of such needs as outlined above, an Assessment should be undertaken.
When interviewing members of the family, Social Workers should explore, as fully as possible, existing sources of help and support in the community, voluntary groups, social networks etc.
The Social Work Assessment should establish the following;
Whether the child is in need and what support networks are available as an alternative to s17 CA. The Social Worker must establish whether the family's needs can be met by any other means, whether that is access to public funds, for European Economic Area (EEA) national families granted asylum by another EEA state, support under the Children Act (CA) 1989 to such families can only be provided if it is assessed, and so a Human Rights Assessment must be completed.
Families with NRPF presenting as destitute will commonly seek provision of accommodation costs and subsistence under s17 of the Children Act (CA) 1989.
Where required the assessment should include the Human Rights and Eligibility Assessment to ensure they influence the overall outcome.
Where the Social Work Assessment highlights the family has NRPF the following fundamental steps will be undertaken in assessing whether Blackpool CSC has a duty to support a family:
- Conduct an eligibility test;
- Carry out an assessment(s) of need; and
- Undertake a Human Rights Assessment.
In order to be eligible for support it is necessary for the family to establish eligibility:
- That their need arose in Blackpool although it is important to note that if a child is in need and in local authority area there is a requirement to conduct an assessment of their needs. It is not appropriate to just assume that a family previously living in another authority with NRPF, we need to establish why the other local authority did not assess and whether they had alternative means of support at that time;
- That they are destitute;
- Key Documents;
- Local Connection;
- The parents and child's nationality;
- Their immigration status;
- If they are asylum seekers eligible for section 95 support under the Immigration and Asylum Act 1999 this should be identified through Migrant Help where this will be completed alongside the Social Work Assessment, any family with an existing asylum seeking claim must be supported by the Home Office under Section 95 Immigration and Asylum Act 1999, therefore Blackpool cannot provide support to the family under s17 of the Children Act (CA) 1989, as the s95 assistance takes precedence over s17;
- If the family is excluded from support by Schedule 3 of the National Immigration and Asylum Act 2002.
1. Key Documents
- The person seeking a service must have sufficient identification although this may not be possible if, for example, the person is fleeing domestic violence and abuse. In such cases evidence should be established at a later date via the assistance of a solicitor or the police;
- If they do not bring the necessary documentation on first presentation, the assessment can still go ahead but the Social Worker must inform them that any decisions regarding provision of support can only be made when they have provided the appropriate documents, and they should have all the required documents before another interview is arranged;
- If an interpreter is required, arrangements should be made with the interpreter to inform the person concerned of the documentation required;
- Those seeking a service should be asked to verify their identity and immigration status with the production of the following forms of identification:
- Passports and birth certificates for all members of the family;
- If available, travel documents e.g. return air tickets;
- Home Officer papers (Application Registration Card (ARC), application letters or refusal letters) and solicitors' letters; and
- If available, bank account statements (from the last 3 months).
- All identification documents supplied must be original documents, which should be photo-copied or scanned and the copy/scanned documents retained on the relevant file;
- If the applicant or any dependents have health needs, they must provide any documented evidence of ill health or disability for any member of the family, e.g. OT reports, mental health/psychiatric reports.
2. Local Connection
- It is important to establish where the person has a local connection as it may be another local authority, which has responsibility for this person;
- Local connection criteria need not always apply, for example, if the person is at risk of violence if they return to the local authority where they have a local connection;
- It should be stressed Social Workers will follow up on the contact details given by those seeking a service to make enquiries to verify the local connection;
- If it is established that the person has a local connection with another local authority, Social Workers should refer the person to that local authority.
3. Immigration Status of the Client
- Nominated persons will be able to ring the Home Office to check if the person concerned has a 'live' asylum application, been refused asylum, or has some other application pending;
- Social Workers should have the documentation outlined in Key Documents to establish the status and identity of the applicant and their dependents and this should be cross-referenced with the Home Office as fully as possible;
- Social Workers need to tell over-stayers they have a duty to inform the Home Office as they have approached the local authority for assistance.
- It is important to build up a clear picture of the family's circumstances and Social Workers need to assess if the client is indeed destitute, i.e. they have no means of supporting themselves nor family or friends whom they can rely on for support;
- Social Workers must consider if the information given both verbally and in documented form is credible. If they do not think it is credible, they must be confident that there is enough evidence to the contrary (taking care to record this) in case the local authority decision is subject to legal challenge.
Completion of Assessment
If the family appears to be destitute, the local authority does in certain circumstances as described above, have the power to provide temporary accommodation and financial support pending completion of the Social Work Assessment and/or the human rights assessment. Any decision to provide financial support for NRPF must be authorised by Head of Service
Social Workers should put in writing to the applicant advising that that accommodation/subsistence will be provided on a temporary basis only, and on a without prejudice basis, pending completion of assessments, the letter should clearly highlight that this is subject to review and the offer could be withdrawn at any time.
Where it is assessed that a family is not entitled to support and have friends or family willing to support them, they should be advised in writing, to seek their support.
If it the assessment determined that accommodation is required, the Social Worker will contact the local authority's Housing Department to enquire whether they are able to assist or advise in relation to suitable temporary accommodation
When the assessment is completed, the Social Worker should discuss the outcome of the assessment with their line manager to consider potential outcomes:
- To accept the family's application for support or agree to continue support pending a decision from the Home Office in relation to their immigration status;
- To reject the family's application for support or terminate any existing support; or
- To request further evidence before making a decision.
If the family is in need of urgent/immediate support, the Social Worker should seek legal advice and discuss the case with the line manager. Authorisation must be sought from the Service Manager before any provision of immediate support.
The decision to terminate support for an ongoing case should be made by the Service Manager. This needs to be informed with an up-to-date assessment.
The Social Worker will need to inform the parents if their support is to be terminated. This should be done in an interview, with the use of an interpreter if necessary.
The Social Worker should arrange for a letter to be sent to the persons concerned including the 28 day notice period from when support will terminate and to advise them to seek legal advice if they disagree with the decision. This letter should be translated into the person's first language as appropriate.
Social Workers will need to ensure the Assessment Record sets out the basis upon which support for the family is provided and outlining the needs of the family. This should cover:
- If the family needs an interpreter;
- Special accommodation needs;
- Health needs;
- Length of proposed support;
- The legislation under which the family is being supported, e.g. Section 17 of the Children Act 1989.
Provision of Accommodation
For families with no recourse to public funds who require accommodation the following steps should be taken:
- The person concerned and the social worker should identify the specific needs of the family taking into account location, type of property required;
- The Social Worker should identify appropriate properties;
- The Social Worker and person/s concerned should view suitable properties and identify a suitable property taking into account the needs of the family and the location;
- Accommodation must be fully furnished;
- The Social Worker will negotiate with the landlord the payment of the bond, rent and acquire the relevant information to make payment;
- The Social Worker will obtain copies of documents indicating that all safety checks have been completed in relation to the property;
- The tenancy agreement will only be in the parent's name as this will facilitate future claims for benefits if leave to remain is granted;
- The Social Worker will make arrangements for payments of rent to the landlord on a monthly basis directly to their bank account and ensure that Council tax is also paid;
- The Social Worker will ensure that prior to and after the family move into the tenancy everything is in place;
- If the family is granted leave to remain at a future date the Social Worker will meet with the landlord and family to clarify payment of rent, council tax and tenancy agreement. This will be confirmed in writing to the landlord and the tenant;
- The landlord and family has a duty to notify the local authority that they are in receipt of benefits/housing benefit and any over payment of rent to the landlord will be reclaimed by the local authority.
Independent Family Returns Panel following Human Rights Assessment
Case Law has cited that if there are no legal or practical obstacles to return to the country of origin, the denial of support by the local authority does not constitute a breach of human rights, although Article 3, 8 and 6 of the Human Rights Act will need to be considered:
- Article 3 "No one shall be subjected to torture or inhumane or degrading treatment or punishment". If it has not already been done, an application should be made by the family to the Home Office under Article 3, to change their status to Asylum Seekers. They will then be entitled to support by the Home Office. Legal advice should be sought at this time by the Social Worker;
- Article 6: "Right to a fair and public hearing" Children/parents involved in Care Proceedings will likely remain in the UK until the conclusion of those proceedings. The Human Rights Assessment provides an opportunity to explore all of the options of a family or an individual excluded from Children's services support;
- Article 8: 'Everyone has a right to respect for his private and family life, his home and his correspondence' Article 8 applications to the Court for leave to remain in the UK as the carer/parent of a British child may also be explored in some cases by individuals, again they need to obtain independent legal advice on this. Similarly the child in some cases may be eligible to apply for British Citizenship. Where domestic violence is evident legal advice must be sought.
If the family is fleeing domestic violence and the incident occurred before their leave to remain has expired there is an exemption allowing recourse to public funds, providing the following 4 area's for criteria are met:
- The person entered the UK or was given leave to remain in the UK as a spouse, civil partner, unmarried or same sex partner of a British Citizen or someone such as an EEA national being present and settled in the UK; and
- Their relationship has broken down due to domestic violence; and
- They do not have the means to access accommodation or to support themselves and need financial help; and
- They are going to make a claim to stay permanently in the UK under the Domestic Violence Immigration Rule (Settlement DV).
If all four criteria apply, an application should be made by the family to the UK Border Agency for a change in status. Individuals needs to be supported by a suitably qualified immigration adviser.
Should the UKBA consider that the person is in a position to apply for assistance, they will be given 3 months limited leave to remain which will also allow access to women's refuges and to apply for benefits.
A form, entitled Protecting Victims of Domestic Violence (DDV) is available for this application at: UK Visas and Immigration (GOV.UK) and it can be returned to the UKBA via email to Domestic.Violence@homeoffice.gsi.gov.uk.
The parent should be assisted to make this application if one has not been made.
A Human Rights Assessment must ask all the relevant questions where, a family excluded by Schedule 3 National Immigration and Asylum Act 2002, is requesting s17 CA support. These are:
- Has the family/individual failed to comply with removal directions?
- Whether there would be any Article 3, 8 or 6 HRA breaches of Community Treaty Rights if the family were to return to the parents' country of origin.
A conclusion must be reached as to whether the child would cease to be a child in need on return to the parent's country of origin. The assessment must also balance the views expressed by the parent and the information that is known to the local authority about the parent's Country of origin.
The Human Rights Assessment from the outset needs to consider whether there are any legal or practical obstacles to the family returning to their Country of origin.
Under s. 54A Borders, Citizenship and Immigration Act 2009 (inserted by s.3 Immigration Act 2014), the Secretary of State must consult the Independent Family Returns Panel in each family returns case, on how best to safeguard and promote the welfare of the children of the family, and in each case where the Secretary of State proposes to detain a family in pre-departure accommodation, on the suitability of so doing, having particular regard to the need to safeguard and promote the welfare of the children of the family.
A family returns case is a case where a child who is living in the United Kingdom is to be removed from or required to leave the United Kingdom, together with their parent/carer.
Pre-departure accommodation is a secure facility designed to be used as a last resort where families fail to co-operate with other options to leave the UK, such as the offer of assisted voluntary return.
The Panel may request information in order that any return plan for a particular family has taken into account any information held by other agencies that relates to safeguarding, welfare or child protection. In particular a Social Worker or manager from Children's Social Work Services may be invited to contribute to the Panel.