NO RECOURSE
TO PUBLIC
FUNDS
BACKGROUND
INFORMATION
AND
ASSESSMENT
April 2009
1
CONTENTS
DEFINITION
OUTLINE OF ASSESSMENT PROCESS
KEY LEGISLATION
BACK GROUND INFORMATION
COMMON SCENARIOS
RESOURCES
THE ASSESSMENT FORM
2
2
3
4
7
13
14
DEFINITION
‘No recourse to public funds’ (NRPF) applies to a person who is subject to
immigration control; does not have the right to work;1 and has no entitlement to
welfare benefits, public housing or Home Office asylum support.
NRPF affects a wide range of people who are subject to immigration control,
including refused asylum seekers, visa overstayers, post-18 former
unaccompanied asylum seeking children and victims of domestic violence in the
UK on spouse visas. Many of these people are, for a variety of reasons, unable
or unwilling to return to their countries of origin.
OUTLINE OF THE ASSESSMENT PROCESS
The aim of the assessment is to assist staff to determine whether an applicant
who has no recourse to public funds can be legally supported by the Local
Authority.
The key steps of the process are as follows:1. Read pages 2 - 12 of this guidance
2. An assessment is made as whether the customer is destitute and is
ordinarily resident in Rotherham
3. The customer’s immigration status is checked to confirm whether the
person is prevented from receiving local authority support. Refer to
Section 54, Schedule 3 of the 2002 Nationality Immigration and Asylum
Act.
4. Using the appropriate legislation to determine whether the customer
can be supported
a. S17 of the 1989 Childrens Act – used where there is a Child in
Need.
b. Section 21 of the 1948 National Assistance Act (to include single
women who experience domestic violence and who are in need
of care and attention)
i. The need has to arise from something other than
destitution – “Destitution Plus”
5. For all cases which fall outside of the above then an assessment needs
to be made against the Articles 3 and 8 of the European Convention of
Human Rights.
2
Points to bear in mind
•
•
•
The text boxes in the Assessment Form expand to accommodate the text.
Support provided by local authorities to people with NRPF should be
temporary, that is, kept under review and provided until the immigration
status of the individual or family is resolved. It may also be necessary to
provide interim support while assessments are completed.
Support can not be provided if someone solely has a need for
accommodation.
What to do once the assessment has been completed
•
•
•
The customer is given a copy of this Assessment
Team Manager will approve expenditure
Team Manager to send a summary of application, and the projected cost
of support to the Asylum Team Manager
KEY LEGISLATION
Local authorities’ duty to support a person with NRPF may arise in the context
of the following legislation
•
Section 21 of the National Assistance Act 1948 – providing residential
accommodation to vulnerable adults with Community Care needs
•
Section 17 of the Children Act 1989 – providing rent and subsistence
payments to families with children under 18 who would otherwise be
destitute
•
Section 117 of the Mental Health Act 1995 – people discharged back to
the care of the community under section 117 after being sectioned under
section 3 of the Mental Health Act 1983 (involuntary admission to hospital)
•
Articles 3 and 8 of the European Convention on Human Rights (ECHR) –
where cases do not meet the four key stages for eligibility (see above)
they may still be eligible for local authority support under human rights
legislation.
•
Local Government Act 2000 – local authorities have the power to do
anything that promotes the well-being of a person, including economic,
social and environmental well-being
•
Section 54 and Schedule 3 of the Nationality Immigration and Asylum Act
2002 – people excluded from local authority support as a result of their
immigration status may still be entitled to support to avoid a breach of their
rights under the European Convention on Human Rights (ECHR)
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•
Articles 3 and 8 of the ECHR – right not to be subjected to inhuman or
degrading treatment and right to family life
•
Section 4 of the Immigration & Asylum Act 1999 – Home Office powers to
support refused asylum seekers unable to leave the United Kingdom
temporarily.
BACKGROUND INFORMATION
This information has come from the No Recourse to Public Funds website – .
http://www.islington.gov.uk/Health/ServicesForAdults/nrpf_network/default.as
p TRIX PLEASE LINK
It is intended to provide a context for assessing the needs of people who
present to services, and for making an appropriate decision.
Given the complex nature of the legislation it is recommended that legal
advice is sought from RMBC legal services for situations where there is some
ambiguity.
FAQs
The following Frequently Asked Questions reflect the most common scenarios
in working with people who have NRPF. The guidance provided does not
constitute legal advice either generally or in relation to specific cases. For
more specific guidance or information, please contact the NRPF Network. For
advice, please contact a legal advisor
What are the options for support for a foreign national in the UK on a
spousal visa with NRPF if the relationship breaks down due to domestic
violence?
If the relationship broke down within the visa’s two-year probationary period
victims of domestic violence should seek legal assistance to make an
application for Indefinite Leave to Remain (ILR) under the Domestic Violence
Rule. Relationships that break down after this two-year period may still be
eligible to apply depending on individual circumstances. For further
information regarding the Domestic Violence Rule, see Resources for the
Rights of Women website.
Women with children may be eligible for temporary support from the local
authority under Section 17 of the Children’s Act 1989.
Single women with physical or mental health needs (which may or may not be
related to the domestic violence) may be eligible for temporary support from
the local authority under Section 21 of the National Assistance Act 1948.
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Holders of spousal visas are permitted to work and may be eligible to receive
certain contribution-based benefits.
Certain women’s refuges reserve a number of places for women with no
recourse to public funds. For a directory of refuges in your area contact the
police or your local domestic violence help-line.
For more information about domestic violence and NRPF, please refer to the
NRPF Network practice guidance on assessing and supporting victims of
domestic violence with NRPF
Are EEA nationals eligible for local authority assistance?
EEA nationals (and refugees with status in another EEA state) are caught by
the restrictions to local authority support under Schedule 3, s54, of the
Nationality, Immigration and Asylum Act 2002. EEA nationals are therefore
not entitled to Local Authority assistance unless exceptional support is found
to be necessary to avoid a breach of the person’s/family’s human rights. In
such circumstances, the Local Authority has the power under s2 of the Local
Government Act 2000 to purchase tickets back to the country of origin.
EEA nationals are permitted to work in the UK. A8 migrants however must
register their first 12 months of employment under the workers registration
scheme. A2 migrants face additional restrictions and must apply for accession
worker cards.
EEA nationals who can meet the Habitual Residency Test may be eligible for
benefits if they have been making tax contributions whilst working in the UK
for at least 12 months. This will entitle them to the same benefits as British
citizens.
Is a family that has overstayed their visa eligible for local authority
assistance?
If a family enters the UK on a visa and remains in the country after the expiry
date, the restrictions under schedule 3 of s54 Nationality & immigration Act
2002 will come into operation and the family will be barred from services
unless the withholding or withdrawing of support would constitute a breach of
the family’s human rights.
The Local Authority must carry out a Child in Need and Human Rights
assessment. Both assessments must consider the needs of the child in the
UK, as a dependant of a parent who is NRPF and unable to support the child
financially, and the needs of the child in the parent’s country of origin. If both
assessments conclude that the family can return to the parent’s country of
origin, thus avoiding the inability to care for themselves in the UK, then no
support is necessary other than assistance to the family in returning home.
In such cases the local authority’s assessments must conclude that the child
will cease to be a child in need on return (because of the existence of services
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in that country, employment opportunities or wider family support networks,
for example). Temporary services may be required pending the outcome of
the assessments and whilst travel arrangements are made; this is necessary
to avoid a breach of the family’s human rights due to homelessness in the UK.
Can a Local Authority support a pregnant mother who is NRPF and has
no dependent children and no health needs?
Section 21 (1) (aa) of the National Assistance Act 1948 empowers (note: this
is not a duty) the local authority to provide residential accommodation for
expectant and nursing mothers who are in need of care and attention which is
not otherwise available to them. There is no authoritative guidance on how
long a period should be allowed for someone who is considered a nursing
mother, or on whether the power to support only applies to, for example, the
later stages of pregnancy. Therefore eligibility is considered on a case-bycase basis depending on the individual circumstances of the claim and
prevailing legal guidance.
It has been established that a failed asylum seeker, with no presenting health
needs other than pregnancy, can apply for section 4 UKBA support. If the
women has not claimed asylum but has entered the UK on either a visa, or as
an EEA national, UKBA asylum support will not be available and the likelihood
of a local authority being required to exercise its powers under Section 21 (1)
(aa) increase significantly. These provisions, for example, have often been
used by Local Authorities to provide services to pregnant women fleeing
domestic violence who have NRPF.
In all cases the Local Authority must have regard for the mother’s immigration
status in the UK, their entitlement to alternate services (e.g. UKBA support)
and, importantly, whether the restrictions to support under Schedule 3,
Section 54, of the Nationality Immigration and Asylum Act 2002 apply (as in
the case of EEA nationals).
Is a failed asylum seeker with care needs entitled to support under
Section 21 (1) (a) of the National Assistance Act 1948?
If a failed asylum seeker has assessed care needs that require the
involvement of a community care or mental health team, it is likely that they
will qualify for support under the National Assistance Act 1948 on the grounds
of having a need for care and attention over and above that of destitution
alone. (for further info, please see our guidance on assessing and supporting
people with NRPF. Please also refer to the recent ruling M v Slough Borough
Council July 08).
However, in-country failed asylum seekers on exhausting their appeal rights
will be considered to be unlawfully in the UK and caught by the restrictions to
support under Schedule 3 of the Nationality Immigration and Asylum Act
2002.
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If Schedule 3 applies, the Local Authority must consider whether the
withholding or withdrawing of support would constitute a breach of the
person’s Human Rights; the Human Rights Assessment will be the lead
assessment for such purposes and the threshold for services to be provided
will be extremely high (please refer to the judgement in N v. SSHD [2005]
UKHL 31 for the relevant case law). For more information, please the
Resources section.
Are NRPF clients eligible for council housing?
NRPF clients are not eligible for council housing. However, local authorities
have a duty to provide accommodation where someone with NRPF meets the
threshold for assistance under s21 National Assistance Act 1948, s17
Children Act 1989 or where withholding or withdrawing support would be a
breach of their human rights. Local authorities should carry out assessments
to determine eligibility and need for services. For more information, see
Resources for good practice guidance in assessing and supporting people
who have NRPF
Types of temporary accommodation offered by local authorities might include
B&Bs, annexes, hostels or private rented accommodation. It is good practice
however to consider the needs of the client when allocating accommodation
and to inspect properties regularly to ensure that the accommodation provided
meets housing standards.
It has been shown that establishing spot purchase contracts with
accommodation providers/agents is an excellent way to secure good quality
and cost effective accommodation. It also prevents disputes between housing
agents and the council in areas such as notice periods for termination of
support and payment of utility bills and council tax. If the person is not eligible
for assistance, local authorities should give advice on how the person can find
alternative accommodation. This may be provided through Section 4 by the
UKBA or by returning to their country of origin with the help of the
International Organisation for Migration. It may also mean staying with
friends/family or seeking help from organisations such as the Red Cross or
homeless shelters.
If a duty arises to support an individual/family who is NRPF, how much
should local authorities pay for weekly subsistence payments?
Subsistence rates for people with NRPF vary between local authorities.
Several local authorities provide subsistence rates at cash equivalent of
UKBA Section 4 rates: £35 per person per week. Others might provide this
amount in vouchers. Where the cost of utilities is not included in the
accommodation, extra money may be added to the weekly subsistence rate.
Additionally, some local authorities provide a milk allowance for expectant
mothers and small children in line with the UKBA ‘extra rates’ for mothers and
children on Section 95 asylum support. In all cases, the Local Authority must
be able to account for how they have arrived at the weekly amount of
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subsistence and demonstrate that it will meet the basic living needs of the
individual supporting.
Some authorities have found that obtaining bank accounts for clients enables
clients to have more control over their finances, increases reliability and
reduces paperwork for the local authority.
COMMON SCENARIOS
Visa Overstayers
Schedule 3 of the Nationality, Immigration and Asylum Act 2002 prohibits
local authorities from providing assistance to visa overstayer families under
Section 17 CA. A Human Rights Assessment should be carried out, including
a Child in Need assessment, to determine whether it would be a breach of the
family’s human rights to withhold or withdraw support and offer tickets to the
country of origin. As part of the Child in Need assessment, the local authority
should determine whether the child would cease to be a child in need on
returning to their country of origin.
It is good practice to seek to resolve the immigration situation of the family,
which may involve applying for leave to remain (for example if there are family
connections in the UK or ‘compassionate’ reasons for the family to stay in the
UK). In such cases, families should seek legal advice. Options to return the
family to the country of origin should be explored; the International Office
Migration may assist in arranging travel documents and tickets. National
embassies may also be able to help. See Resources.
Family fleeing domestic violence
If an adult has been in the UK on a spousal visa for less than two years and
they and/or their dependent become victims of domestic violence, they can
apply for indefinite leave to remain (ILR) under the Domestic Violence Rule
(DVR). The local authority should advise the person to seek appropriate
advice for an application under this rule and if the two year visa is nearing its
end to stress the urgency of this. The application costs £750, however this fee
can be waived if the applicant provides evidence of destitution. Local Authority
staff may be asked to provide evidence in support of any aspect of the
application and with the agreement of the person concerned may do so in
relation to reports of domestic violence.
Those making applications under the DVR must seek legal advice in
completing the application.
In order to qualify for local authority support pending the outcome of this
application or in cases where the family has been in the country on a spousal
visa for over two years, or in any other circumstance, support may be
provided under Section 17 CA. A child in need assessment must be
undertaken to assess eligibility for services under the CA (see Part 5.1 for
more information).
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People on spousal visas are entitled to work in the UK. Although exercising
this entitlement may not always be possible, it is good practice to explore
options for them to self-support.
In some cases where people fear returning home because of the stigma
associated with domestic violence or the breakdown of a marriage for
example, an application can be made under Article 3 of the Human Rights Act
1998. If an application under Article 3 HRA is submitted, the family would be
entitled to UKBA support.
For more detailed guidance on domestic violence cases, please see our
practice guidance on Assessing and Supporting Victims of Domestic Violence
with No Recourse to Public Funds.
EEA Nationals
Schedule 3 of the Nationality, Immigration and Asylum 2002 Act prohibits
local authorities from providing accommodation to families with children from
EEA countries under Section 17 CA.
A Human Rights Assessment should be completed on EEA migrants who
cannot support themselves and become destitute to ensure that withholding
or withdrawing services or offering tickets home would not be a breach of their
human rights. The local authority may purchase travel tickets for EEA national
families to their country of origin (under Withholding and Withdrawal of
Support (Travel Assistance and Temporary Accommodation) Regulations
2002) (providing this would not be a breach of their human rights).
EEA nationals do not require leave to enter or to remain in the UK; however
their right to reside is subject to some restrictions. EEA nationals exercising
their ‘treaty rights’ are called ‘qualified persons’, who are in the UK as
jobseekers, workers (including some former workers), self-employed, selfsufficient or students. EEA migrants may apply for permanent residence after
five years of residing as a qualified person.
EEA migrants that are habitually resident in the UK may be eligible for noncontributory benefits and in such cases they should be referred to the relevant
local authority department or the jobcentre. For more information on the
Habitual Residency Test, please see the web pages of the Department of
Work and Pensions: http://www.dwp.gov.uk TRIX PLEASE LINK
If an EEA migrant family that is not permanently resident ceases to have the
right to reside in the UK, for example if they become an ‘unreasonable
economic burden’ on the UK social system, the local authority may be able to
offer tickets home for the family, subject to a human rights assessment.
EEA nationals from the accession states (A8 nationals), whose countries
joined the EU in 2004; face some additional restrictions to residing and
working in the UK. A8 nationals are required to register their first 12 months of
employment under the workers registration scheme. After 12 months
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employment in the UK, A8 nationals have the same rights as other EEA
migrants. While working A8 nationals are eligible for some work related
benefits such as working families’ tax credit.
During the first 12 months, A8 nationals have NRPF and the local authority
can use their power under (under Withholding and Withdrawal of Support
(Travel Assistance and Temporary Accommodation) Regulations 2002) to
purchase tickets home, subject to a human rights assessment.
Bulgarians and Romanians (A2 nationals) have further restrictions to residing
and working in the UK. A2 nationals must apply for accession worker cards.
Self-employed or self-sufficient A2 nationals are not required to apply for the
accession worker card. As well as conducting the human rights assessment,
for EU nationals, there must be consideration of whether support and
assistance under s17 CA (or s21 NAA for parents who may be in need of care
and attention) is necessary to prevent a breach of their ‘treaty rights’. The first
step is to establish whether the person is exercising treaty rights so that they
can be classified as a ‘qualified person’, and then whether assistance is
needed to prevent those rights being breached.
All rights exhausted refused asylum seekers who have a child after the
ARE date
A refused asylum seeker whose first child is born 21 days after her claim is
rejected and has exhausted all appeal rights will be treated as a refused
asylum seeker. They are not entitled to ongoing Section 95 IAA support but
may be eligible for Section 4 IAA support. Such parents may be caught by
Schedule 3 NIAA, depending on their particular circumstances, and any claim
for support under s17 CA or s21 NAA must be subject to a human rights
assessment.
Families with a child that has a disability
Where a child has a disability, an assessment must be conducted on the
needs of the child and of the carer and their ability to care for the child.
Asylum seeker families where a child is disabled should be supported by the
UKBA, who should ensure that the accommodation meets the child’s needs.
Nursing or expectant mothers
Expectant and nursing mothers may qualify support under Section 21 (1)(aa)
of the NAA. Test case R (Gnezele) v Leeds City Council; R (Dayina) v Leeds
City Council however ruled that refused asylum seeker expectant or nursing
mothers were excluded from support under s21(1)(aa) NAA because:
•
Pregnancy and nursing a child do not come within ‘care and attention’.
They are dealt exclusively under the power in s21 (1)(aa). This meant
that any need for care and attention arose solely from their destitution,
10
which is expressly excluded from support in the NAA for persons
subject to immigration control; and
•
They were lawfully entitled to Section 4 IAA support.
For other expectant and nursing mothers, local authorities have a power not a
duty to provide support in these circumstances. It is good practice to establish
a protocol in regards to supporting expectant and nursing mothers, though
this may vary between local authorities.
An example would be to provide support while the woman is pregnant and for
six to eight weeks following the birth of the child. On terminating support, the
family should be referred on to alternative forms of support or signposted to
services helping them to return home.
Leaving care provisions
Post-18 former unaccompanied asylum seeking children whose appeal rights
are exhausted have NRPF. In general young people who have been looked
after as children (including children supported under Section 20 CA) should
receive assistance from the local authority under Section 24 of the Children
Act 1989 and the Leaving Care Act 2000, though the duties vary according to
the period over which the young person was in the care of the Local Authority.
The Hillingdon judgement14 determined that unaccompanied asylum seeking
children (UASCs) would almost always be provided with accommodation
under s20 CA and not under Section 17. This means that most UASC will be
‘looked after children’ and entitled to care leaving services.
However, the leaving care provisions of the CA fall within Schedule 3 NIAA.
Former UASC will sometimes fall within one of the excluded groups, most
likely to be “persons unlawfully present in the UK” by reason of particular
circumstances of exhausted appeal rights and no further leave to remain. If
that is the case, the duties of the Local Authority to provide leaving care
services will be limited, and subject to a human rights assessment.
Former unaccompanied children supported who had been supported under
Section 17 CA will not be entitled to leaving care provisions on turning 18, but
it is important to note that after the Hillingdon judgment, only in rare cases will
a UASC be accommodated under s17 rather than s20 CA
Safeguarding children
Local authorities have a general duty under the CA to enable children to live
with their families. The refusal of support under Section 17 CA may raise
safeguarding concerns for the child. This is particularly acute in regards to
families caught by Schedule 3 NIAA who are barred from local authority
support under the CA. Human rights issues under Article 8, right to family and
private life, may also be raised.
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It is good practice to find solutions to the destitution faced by the family. This
may involve exploring options for families to return to their countries of origin,
subject to a human rights assessment and a child in need assessment. It may
also involve exploring opportunities to apply for leave to remain.
Children Subject to Orders under Section 8 of the Children Act 1989
When undertaking child in need assessments, workers should make enquiries
about any court orders which apply to the child. Orders under s8 of the
Children Act 1989 (Residence, Contact, Prohibited Steps and Specific Issue)
may affect the provision which can be offered to a family. For example under
a residence order there is a specific prohibition on the child being taken out of
the country for more than 28 days, and a contact order may require a child to
remain in the UK to be effective. However where such orders are in place it is
open to a parent or other party (but not normally the Local Authority) to seek a
variation of the order in the courts.
Therefore if, for example, a residence order is in place to one parent but the
child is not having any direct contact with the other parent it may be
appropriate for the person holding the residence order to seek the permission
of the court to remove the child from the UK.
Children Subject to Care Proceedings
Normally the UKBA will allow a parent limited leave to remain in the UK for the
duration of Care Proceedings even if the decision in relation to their
application cannot be reached in that timescale. It would generally not be
appropriate to expect a parent to leave the UK during the course of
proceedings as this could hamper assessments and fetter the court in making
decisions in relation to a child. Such instances raise human rights issues.
The Local Authority may need to consider the provision of support to a family
while assessments are underway. If the child is subject of a Care Order any
provision is under Section 22 CA, not Section 17.
Single people who are victims of Domestic Violence
For single adults, the individual needs to demonstrate a need for care and
attention arising not only from a lack of accommodation and funds, but also
for the prevention of harm or violence or some other circumstance. The test of
being in need of care and attention not solely due to destitution is capable of
including the effects of domestic violence, although destitution alone is not
sufficient.
In assessing whether an individual is destitute-plus, that is whether an
individual’s need is to any material extent made more acute by some
circumstance other than “mere” lack of accommodation and subsistence,
domestic violence may be relevant.
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The case of Khan v Oxfordshire indicated that there may be instances where
a victim of domestic violence does have a need for care and attention which
arises from domestic violence itself and not solely because of destitution. This
will depend on the individual circumstances of each case.
The letter to local authorities from the Crime Reduction and Community
Safety Group at the Home Office, dated 16 February 2006, reminds local
authorities:
…to be mindful that some victims of domestic violence could have
specific needs for care and attention and/or have dependent children,
which may make them eligible for assistance under section 47 of the
NHS & Community Care Act, the Local Government Act s.2, the
Children Act 1989 or other relevant legislation.
Acknowledgement – The above information (pages 3 – 12) has been derived
from information on the NRPF website
RESOURCES TRIX PLEASE LINK
http://www.islington.gov.uk/Health/ServicesForAdults/nrpf_network/policy_gui
dance.asp
http://www.islington.gov.uk/DownloadableDocuments/HealthandSocialCare/P
df/child_and_family_with_nrpf_guide.pdf
http://www.islington.gov.uk/DownloadableDocuments/HealthandSocialCare/P
df/nrpf_assessment_guidance.pdf
http://www.islington.gov.uk/DownloadableDocuments/HealthandSocialCare/Rt
f/human_rights_assessment.rtf
http://www.islington.gov.uk/DownloadableDocuments/HealthandSocialCare/P
df/nrpf_domestic_violence_guidance.pdf
13
http://www.rightsofwomen.org.uk/
http://www.iomlondon.org/varrp.htm
Please contact the author if the assessment / guidance needs updating or
clarifying.
Andrew Crowley
Team Leader – Rotherham Asylum Team
01709 334270
[email protected]
THE ASSESSMENT FORM
PART A - BASIC DETAILS
To be completed for ALL applicants
Name
Address
Date of Birth
Phone
Number
Passport / ID card / Documentation
ID verified
Type of Vulnerability - circle where relevant
Domestic Violence / Mental Health / Physical Disability / Children in Need /
Homelessness / Over 65
Background / Chronology: Provide give a brief history of background and
any social service support, and include any evidence. In completing this
section the following questions should be used as a checklist:
How long has the
family/each applicant been in
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the country?
What is their immigration or
asylum status, what is the
date of any decision or
appeal and what applications
remain outstanding?
What are the medical,
educational, social or other
needs of each family
member (include details of
the GP and any person or
organisation consulted or
being consulted)?
What is the financial
situation? What
accommodation is available?
What previous
accommodation has the
applicant/family had? How
was that lost?
How has the applicant/family
supported itself until now?
Are there any other people or
organisations who have
provided or could provide
any support?
Is there any reason why the
family cannot return to their
country of origin (please set
out in full)?
What other family or relatives
do the family have in this
country? What contact does
the family have with them?
What difficulties, whether in
terms of employment,
schooling, medical provision
or otherwise, would be
caused were the family to
return home?
Is there any other factor or
factors which ought to be
borne in mind?
If the individual or anyone in
the household was legally
able to work, could they do
so? Please record/obtain
relevant medical proof where
appropriate.
15
PART B - ORDINARY RESIDENCE
(refer to Lac (93)7) – see reference below
http://www.dh.gov.uk/en/Publicationsandstatistics/Lettersandcirculars/LocalAu
thorityCirculars/AllLocalAuthority/DH_4004144
To be completed for ALL applicants
Guidance
In order for the authority to be territorially responsible individuals must be:
• ordinarily resident in the local authority’s area; or
• not ordinarily resident in any local authority area and presenting as
homeless and in urgent need4, i.e. where a person has no settled
residence and is in urgent need of services, it is the responsibility of the
local authority where the person presents to provide services; or
• ordinarily resident elsewhere, but presenting in another local authority in
urgent, i.e. critical, need.
Where is the applicant “ordinarily resident”?
In Rotherham
Outside of Rotherham – see below
Details -
Note – Care must be taken if Children, People with community care needs, or
someone experiencing Domestic Violence is ordinarily resident outside of
Rotherham.
PART C - IMMIGRATION STATUS
To be completed for ALL applicants
What is the applicant’s immigration status?
Asylum seeker
Yes / No
No Recourse to Public Funds (in passport)
Yes / No
Is the applicant ineligible for support under Schedule 3 of the Nationality
Immigration and Asylum Act 2002?
Have they been granted refugee status by another European
Yes / No
Economic Area (EEA) state
Are they an EEA national
Yes / No
Are they are a failed asylum seeker who has not complied with
Yes / No
removal directions
Are they a failed asylum seeker with dependents who has failed to Yes / No
take reasonable steps to leave the UK
Are they unlawfully present in the UK
Yes / No
Note
16
•
If the applicant is an Asylum seeker or a failed asylum seeker then they
should be referred to the Refugee Council on 0113 244 9404 as a
matter of urgency.
• The following groups of people can only be supported if there is a
Human Rights Consideration.
o EEA nationals / people granted refugee status in EEA country
o The law requires that the Immigration Service is contacted in the
following circumstances as the customer is subject to
Immigration Control
failed asylum seeker who has not complied with removal
directions and does not have a community care need
failed asylum seeker and dependents who have failed to
take reasonable steps to leave the UK. The Childrens Act
may apply.
an Illegal Entrant.
• Refer to Background Information for more advice
Contacting Immigration Services
• Ring 01709 501858 / 501865 (immigration intelligence team) at
Rotherham Immigration service.
• Information they need
o Name of the person
o Date of birth
o NASS reference number – if an asylum seeker, or HO reference
number
o Country of origin.
If supporting someone subject to immigration control has the United
Kingdom Borders Agency been informed?
Yes
No
Details –
PART D – DESTITUTION
To be completed for ALL applicants
Is the applicant destitute? Do they have any means of support?
Other means of support
No other means of support
Does the individual think that they might be able to become self -supporting in
the near future? Are they having support from friends, family, religious
communities, charities etc? If yes obtain details. (Note that women claiming
Indefinite Leave to Remain (ILR) Domestic Violence Rule are able to work.)
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Note
• Applicants receiving Hard Case Section 4 support are not destitute as they
are receiving weekly support from the United Kingdom Borders Agency.
PART E – “DESTITUTION PLUS”
ONLY to be completed for an applicant who has a need for Community
Care
Guidance
The term “Destitution plus” is sometimes used to describe the test laid out in
Section 21 of the 1948 National Assistance Act.
A person is entitled to National Assistance Act support if they
1) Are destitute within the meaning of the Act, and
2) Additionally vulnerable as a result of age, illness or, disability, and
3) Are in need of care and attention
4) Note however the July 2008 House of Lords v Slough judgement which
restricts support to people under the National Assistance Act. There has
been a recent ruling – the Coventry judgement, which supports the Slough
judgement.
If applicant is wanting support under National Assistance Act, are they
“destitute plus”, i.e. they have needs which are not solely due to
destitution
Yes
No
Details –
PART F - HUMAN RIGHTS ACT CONSIDERATION
To be completed for applicants fall outside of other legislation
Guidance
Article 3 is an absolute right. There are 5 components to Article 3: inhuman
treatment, degrading treatment; inhuman punishment, degrading punishment;
torture. There are two key issues in relation to Article 3: (i) whether the facts
of a service user’s claim fit into one of the 5 components of article 3 and (ii)
the need to show a minimum level of severity for Article 3 to be engaged.
If support were refused or withdrawn, would the individual / family be subject
to treatment amounting to torture or to inhuman or degrading treatment or
punishment.
Article 8 grants a right to respect for private and family life, home and
correspondence. The right to respect for private life can include medical
issues. Article 8 is a qualified right. Public authorities are prohibited from
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interfering with the Article 8 right except where the grounds for interference
are in accordance with law, they pursue a legitimate aim and they are
necessary and proportionate. The following are legitimate aims: the interests
of national security, public safety or the economic well-being of the country,
the prevention of disorder or crime, the protection of health or morals, or the
protection of the rights and freedoms of others
If support were withdrawn or refused would the family / individual have their
right to respect family and private life compromised?
In the case of failed asylum seekers, should individual/ family be applying for
support under section 4 of the Immigration and Asylum Act 1999 or do they
have other means of support?
In some cases people who are not eligible for National Assistance Act support
as a result of some of the tests above may still be so as a result of provisions
of the Human Rights Act. This may apply where a person meets the criteria
under 8 above but is ineligible for National Assistance Act Support as a result
of their illegal immigration status. Advice on such cases should always be
sought from the Rotherham Council Legal and Admin Dept.
Article 3 – no one is subject to torture, Article 8 – private and family life
inhuman or degrading treatment or
punishment
Details –
Assessing officer should make recommendation as to the future of this case
based on their assessment. Is there any other support to be considered?
Provide a reasoned conclusion.
PART G - TRAVEL NEEDS
(ONLY for applicants from EU, and those who not qualified for Workers
Registration Scheme)
Establish whether or not it is possible for client to return home to their
country of origin. Have they the means (finance, passport, travel
documents)? If not, what help would the family need? Has the relevant
Embassy been contacted? Is the applicant eligible for AVRIM which is
administered by IOM (see resources for web link) ?
Yes
No
Details –
PART H - DOMESTIC VIOLENCE
ONLY to be completed for an applicant who is experiencing Domestic
Violence
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(Contact Cherryl Henry 334567 for advice)
Guidance
This is paragraph 289A of the Immigration Rules. This rule applies to victims
of domestic violence if:
• the person has been allowed to enter or stay in the UK because of their
relationship with a person who is present and settled in the UK; and
• the relationship has broken down because of domestic violence
What is meant here by ‘relationship’ is either marriage or relationship akin to
marriage. It includes civil partnerships (registered relationships between
same-sex couples) and unmarried partnerships. A person is settled in the UK
if they are British or have ILR.
The Rule is to assist individuals, who have come to the UK lawfully on the
basis of their relationship and with a view to settling here. It allows someone
who would have expected to receive ILR if the relationship had not broken
down because of domestic violence, to nevertheless still receive ILR. It
particularly assists women caught in violent relationships to seek to escape
that violence without the worry of losing the entitlement to ILR they would
otherwise have.
ILR domestic violence rule does not apply to applicants who have to leave to
enter other than as a partner, or who is married / in civil partnership with
someone who is not settled in the UK.
It is critical to determine the whether the applicant is subject to “immigration
control”, i.e. does the applicant have “Leave to Enter”, or “Right of Entry”
(British Citizens / EEA nationals) to the UK. EEA nationals have certain rights
to welfare benefits which the Benefits Agency can advise upon.
Applicants arriving in the UK to join their partner must during the 2 year
probationary period take the “Citizenship Test”, and then apply for Indefinite
Leave to Remain. If the applicant does not apply for ILR within the
probationary period and does not seek an extension they then become an
overstayer. It is imperative that all applicants seek legal advice immediately.
Background Information to include
• Applicant’s Immigration Control Status
• Status of Applicant’s spouse / partner
• Date that the applicant entered the UK
Details -
Name of Service User
PART J - DECLARATION
Signature
Date
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Name of Assessment
Officer
Signature
Date
Name of Team Manager
Signature
Date
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