RELEVANT GUIDANCE AND INFORMATION
Please note: This chapter gives a broad overview of the relevant legislation and guidance. However, this is an area which is likely to be impacted upon by ongoing case law, and legal advice should be sought as appropriate in relation to specific cases.
In addition, guidance from the NRPF Network states it will also be necessary to have policies in place that address NRPF service provision, including how discretionary powers are exercised towards particular groups, for example, pregnant women without children.
March 2022: This chapter has been reviewed throughout and extensively updated. New sections have been added on: Asylum Seekers and Modern Slavery
- 1. Definition and Eligibility
- 2. Assessment and Provision of Services
- 3. Legal Restrictions on Providing Assistance under the Care Act 2014
- 4. Asylum Seekers
- 5. Modern Slavery
- 6. Human rights considerations
- 7. Role of the Local Authority
- 7.1 To provide information
- 7.2 Pre-assessment screening: all cases
- 7.3 Adults subject to immigration control who are destitute but have no additional needs
- 7.4 Adults who are not eligible for support and assistance under the Nationality, Immigration and Asylum Act 2002
- 7.5 Eligibility for services
- 7.6 Eligibility for other services
- 7.7 Complying with the Care Act following a grant of leave to remain
- 8. Refusing or Withdrawing Support
- 6. Good Practice Points
- Appendix A: Full List of EEA Countries
1. Definition and Eligibility
1.1 Definition of No Recourse to Public Funds
The term no recourse to public funds (NRPF) applies to people who are subject to immigration control in the UK and who do not have any entitlement to welfare benefits or public housing.
The definition of ‘subject to immigration control’ is set out in section 115 Immigration and Asylum Act 1999 (‘exclusion from benefits’), and includes people who:
- require leave to enter or remain in the UK but do not have it (e.g. an illegal entrant, Appeal Rights Exhausted asylum seeker or visa overstayer);
- have leave to enter or remain in the UK which is subject to a condition that they do not have recourse to public funds( e.g. a spouse of a settled person, a Tier 4 student and their dependents or those with leave to remain as a visitor or under ‘family or private life rules’); or
- have leave to enter or remain in the UK given as a result of a maintenance undertaking (e.g. they are adult dependant relatives of people with settled status).
The statement ‘no public funds’ will be written on the person’s immigration documentation if they have immigration permission with NRPF.
People who have no recourse to public funds are not entitled to receive the following welfare benefits:
- Attendance Allowance;
- Carer’s Allowance;
- Child Benefit;
- Child Tax Credit;
- Council Tax Reduction (sometimes called Council Tax Support);
- Disability Living Allowance;
- Housing Benefit;
- Income Support;
- Income based Jobseeker’s Allowance;
- Income based Employment and Support Allowance;
- Personal Independence Payment;
- Severe Disablement Allowance;
- Social Fund Payment: budgeting loan, sure start maternity grant, funeral payment, cold weather payment and winter fuel payment;
- State Pension Credit;
- Universal Credit;
- Working Tax Credit.
They also have no entitlement to local authority housing or assistance from the local authority in relation to homelessness.
However, there are several exceptions to the rules regarding public funds, which are set out in the Home Office Guidance on Public Funds. This means that a person who has leave to remain with NRPF may be able to claim certain benefits without this affecting their immigration status when they:
- are a national of a country that has a reciprocal arrangement with the UK;
- have an EEA national family member, including a British citizen;
- make a joint claim for tax credits with a partner who has recourse to public funds; or
- have indefinite leave to enter or remain as an adult dependent relative during the first five years they are in the UK (during which time they can claim non-means tested benefits).
People who are subject to immigration control may require the support of an interpreter in their contact with adult social care (see Interpreting, Signing and Communication Needs chapter).
1.2 Recourse to Public Funds
People with the following types of immigration status will have recourse to (be able to acccess) public funds:
- indefinite leave to enter or remain or no time limit (apart from an adult dependent relative);
- right of abode;
- exempt from immigration control;
- refugee status;
- humanitarian protection;
- have leave to remain granted under the family or private life rules where they are accepted by the Home Office as being destitute or at risk of imminent destitution;
- discretionary leave to remain, for example:
- leave granted to a person who has received a conclusive grounds decision that they are a victim of trafficking or modern day slavery;
- destitution domestic violence concession;
- unaccompanied asylum-seeking child leave.
See Who has NPRF? Assessing and Supporting Adults who have no Recourse to Public Funds (England) for further information
1.3 EEA nationals and family members
The immigration requirements for European Economic Area (EEA) nationals and their family members have significantly changed following the UK leaving the European Union (EU) and the end of European free movement in the UK.
EEA nationals are now required to obtain leave to enter or remain if they wish to visit or live in the UK. Unless an EEA national is coming to the UK for a short visit, they will need to apply for a visa in advance of their arrival. For example, if they intend to work in the UK, they must apply for a visa under a specific category of the Immigration Rules and meet the corresponding requirements. E-visas will be issued to EEA nationals rather than physical status documents. See the Home Office information for EU citizens about the UK’s points-based immigration system.
However, the position of EEA nationals and their family members who were living in the UK before 11pm on 31 December 2020 is different, as their residence rights are protected by the Withdrawal Agreement. EEA nationals and their family members who were living in the UK by 11pm on 31 December 2020 were required to apply to the EU Settlement Scheme by the deadline of 30 June 2021 to obtain settled or pre-settled status. Some people who have applied by the required deadline may still be waiting for a decision. For those that have not applied, the Home Office will accept a late application if the person can show that they have a reasonable excuse for missing the deadline. However, an EEA national who did not apply by 30 June 2021 will not have lawful status in the UK and may lose access to some of their entitlements, even if a late application is accepted.
Additionally, certain close current family members and future children of EEA nationals with settled or pre-settled status will be able to apply to the EU Settlement Scheme (EUSS) instead of having to meet the requirements of the family migration rules. Non-EEA national family members will be able to apply for an EUSS family permit in order to enter the UK on this basis.
As a result of these changes, an EEA national will now fall into one of the following groups:
- a person who has been granted settled or pre-settled status under the EUSS;.
- a person who has a pending EUSS application made before 30 June 2021;.
- a person who has no lawful status because they did not apply to the EUSS by 30 June 2021, even if a late application is accepted;.
- a person who arrived in the UK on or after 1 January 2021 with leave to enter for a specific purpose, such as to visit, work, or study.
1.4 EEA countries
The EEA is made up of all the European Union (EU) member states, plus Iceland, Lichtenstein and Norway. When the term ‘EEA national’ is used to refer to a person’s immigration position in the UK, this will also include Swiss nationals, whose rights are set out in bilateral treaties.
2. Assessment and Provision of Services
At the pre-assessment screening stage, in ascertaining the facts when an adult with NRPF requests assistance, the local authority should establish whether it is the responsible local authority, that is, whether the person is ordinarily resident within its area (see Ordinary Residence chapter).
2.2 Sharing information
The person should be informed as to how and why information about them may be shared with other agencies, including the Home Office, and confirm their understanding of this. Permission will be required from them in order to share or obtain information from legal representatives and voluntary sector agencies.
2.3 Check immigration status
An immigration check should be carried out to establish any eligibility for public funds under immigration legislation. The adult must be asked to provide evidence of their nationality and, if relevant, evidence of their immigration status in the UK. Immigration status checks can be obtained online from the Home Office or from NRPF Connect (if your local authority is a member).
When a person requests care and support, the local authority will need to establish their nationality and immigration status for several purposes:
- to ascertain any possible entitlement to welfare benefits, housing assistance, employment or Home Office asylum support;
- to identify whether the person is an excluded group and so can only be provided with care and support where this is necessary to prevent a breach of their human rights or EU treaty rights;
- Where a person is in an excluded group, to find out whether any immigration claims are pending with the Home Office or appeal courts, or other legal barriers preventing them from leaving the UK or returning to their country of origin.
Evidence of nationality and immigration status may be established based on documents provided by the person requesting support, but local authorities will check immigration status directly with the Home Office or NRPF Connect.
2.4 How to check immgration status
Local authorities signed up to use the NRPF Connect database can obtain a status check by creating a new case on the system and a response will be provided in line with the service level agreement. Once a case has been created, the local authority can obtain further updates via NRPF Connect from the Home Office whilst the person remains in receipt of support and can update the Home Office about a change of circumstances. For more information please see: NRPF Connect.
Local authorities who are not using NRPF Connect can use the online service on gov.uk.
2.5 Duty to inform the Home Office
The local authority is required to inform the Home Office of:
- any person they suspect or know to be unlawfully present in the UK; and
- a refused asylum seeker who has not complied with removal directions.
This duty should be explained to adults who present to the local authority.
3. Legal Restrictions on Providing Assistance under the Care Act 2014
3.1 Adults subject to immigration control who are destitute but have no additional needs
The Care Act 2014 states a local authority may not meet the care and support needs of an adult or carer (nor prevent the needs for care and support of an adult) to whom the Immigration and Asylum Act 1999 applies and whose needs for care and support have arisen solely:
(a) because the adult is destitute,
(b) because of the physical effects, or anticipated physical effects, of being destitute.
A person is destitute if:
(a) they do not have adequate accommodation or any means of obtaining it (whether or not their other essential living needs are met); or
(b) they have adequate accommodation or the means of obtaining it, but cannot meet their other essential living needs.
3.2 Destitution Plus Test
The courts have held that a mental illness counts as a physical effect of destitution. However, where there is another possible cause of mental illness other than destitution, the local authority is not prevented from assisting that adult. Where the adult passes the ‘destitution plus test’ under the Care Act, this is interpreted to mean that there is a need for care and support which is material to such a degree that some other factor makes the adult’s situation more acute other than destitution or the effects or anticipated physical effects of destitution.
In R (PB) v Haringey LBC  EWHC 2255 (Admin) the court considered that if the applicant‘s depression arose from factors other than destitution, it could not say destitution and its physical effects were the sole cause. In R (Pajaziti) v Lewisham  EWCA Civ 1351 LBC, the claimant’s mental health problems made the need for shelter and warmth more acute and it did not arise solely from destitution.
3.3 Adults who are not eligible for support and assistance
The Nationality, Immigration and Asylum Act 2002 (amended) states that the following five classes of person are ineligible for support and assistance under the Care Act 2014:
1) Persons granted refugee status by another EEA State and their dependants;
2) EEA nationals and their dependants (but not UK nationals or children);
3) Failed asylum seekers who fail to comply with removal directions, and their dependants;
4) Persons unlawfully present in the UK. This includes:
- people who have overstayed their visas;
- illegal entrants;
- refused asylum seekers who made their application for asylum in-country i.e. at the Home Office rather than at the port of entry.
5) Failed asylum seekers with dependent children who have been certified by the Secretary of State as having failed to take steps to leave the UK voluntarily.
Whilst those coming within this category are not entitled to ‘support or assistance’ or duties towards carers of the Care Act, a local authority can provide information and advice (see Information and Advice chapter) or prevention (see Preventing, Reducing and Delaying Needs chapter).
The Care Act acts as a sorting mechanism, therefore, to distinguish between those subject to immigration control:
- who might be accommodated and supported by the Home Office under the Immigration and Asylum Act 1999, for example asylum seekers or failed asylum seekers; or
- who might potentially be accommodated by a local authority under the Care Act 2014.
A local authority has the power to provide care and support to people who met the criteria for such services under the Care Act which may include persons who are
- asylum seekers and other people not excluded by the Nationality, Immigration and Asylum Act 2002
- failed asylum seekers who are in breach of the immigration laws and other persons who are excluded by Nationality, Immigration and Asylum Act 2002 but it may be necessary to provide support to avoid a breach of a person’s rights under ECHR
providing that: such persons need the sort of care that is normally provided in a home (whether ordinary or specialised) or that would be effectively useless if the applicant had no home
and unless: those needs ‘have arisen solely because:
(a) the adult is destitute; or
(b) of the physical effects, or anticipated physical effects, of being destitute.
4. Asylum Seekers
When an asylum seeker or refused asylum seeker (asylum seeker) requests care and support from social care, a local authority will be able to refer such a person to the Home Office for asylum support.
When an asylum seeker presents with an appearance of need, they must be assessed in the usual way under the Care Act 2014 and provided with care and support if they have eligible needs. While an asylum seeker is waiting for a decision from the Home Office, or final determination following any appeals against a refusal, they are not subject to any exclusion from social care support, so eligibility for care and support will be established solely on the outcome of the needs assessment.
Where an asylum seeker (who has received the final determination of their asylum claim) presents with an appearance of need, they must be assessed in the usual way under the Care Act, but the provision of care and support may be subject to a human rights assessment depending on their immigration status and whether they are in a group excluded by Schedule 3 of the Nationality, Immigration and Asylum Act 2002.
Local authorities can only refer an asylum seeker to the Home Office for accommodation without undertaking a needs assessment when the person has presented without an appearance of need.
An asylum seeker who has presented with an appearance of need, and therefore requires a Care Act assessment, can only be referred to the Home Office for support when the relevant assessments have been completed and the local authority has determined that there is no duty to provide assistance.
If interim care and support, including housing, has been provided under section 19(3) pending the outcome of the assessment, then it is good practice for the local authority to assist the person to apply for asylum support. NRPF Connect can be used to communicate with the Home Office to ensure the application is processed as quickly as possible.
4.2 Section 95 Home Office support
A person with a pending asylum or Article 3 human rights application (or appeal) may apply for support from the Home Office under section 95 of the Immigration and Asylum Act 1999 when they are destitute (have no accommodation and / or cannot afford to meet their essential living needs).
They can also apply for emergency support from the Home Office under section 98 of the Immigration and Asylum Act 1999 and may receive support while the Home Office make a final decision on their application for section 95 asylum support.
Support will continue to be provided until the asylum claim is finally determined following any appeals the person has lodged. When the person is granted leave to remain or becomes ‘appeal rights exhausted’ following an unsuccessful claim, they will be issued with 21 days’ notice to leave their accommodation.
4.3 Home Office support for destitute asylum seekers
In certain circumstances, destitute refused asylum seekers may be provided with support from the Home Office under section 4 of the Immigration and Asylum Act 1999. They need to show that they:
- are taking all reasonable steps to leave the UK;
- are unable to leave the UK due to physical impediment;
- have no safe route of return;
- have been granted leave to appeal in an application for judicial review concerning their asylum claim; or
- require support to avoid a breach of their human rights, for example they have made further submissions for a fresh asylum claim.
The support provided comprises accommodation and subsistence, which is intended to cover the costs of food, clothing and toiletries, through a card that can be used in shops but not to withdraw cash. Subsistence support cannot be provided independently of accommodation.
5. Modern Slavery
See also Modern Slavery chapter.
Local authorities must consider and investigate when they suspect a person may be a victim of trafficking or modern slavery, or when a confirmed victim who has NRPF requests care and support or requires housing.
5.1 Safeguarding duty
Section 42 of the Care Act 2014 requires a local authority to undertake an enquiry to establish whether any action needs to be taken to prevent or stop abuse or neglect, where there is reasonable cause to suspect that an adult in its area who has needs for care and support is experiencing or is at risk of this and is unable to protect themselves from the abuse or neglect due to their needs.
The Care and Support Statutory Guidance (paragraph 14.17) specifies that abuse or neglect includes modern slavery, which encompasses: slavery; human trafficking; forced labour; domestic servitude; and where traffickers and slave masters use whatever means they have at their disposal to coerce, deceive and force individuals into a life of abuse, servitude and inhumane treatment.
A person’s nationality or immigration status should not prevent a local authority from following its safeguarding procedures in such circumstances. Schedule 3 of the Nationality, Immigration and Asylum Act 2002 does not prevent the local authority from undertaking an enquiry and taking any necessary action to stop abuse or neglect.
When a person is identified as being a potential victim of trafficking or modern slavery, the local authority must notify the National Referral Mechanism (NRM). Where the person has NRPF, the safeguarding plan will need to explore what housing options are available. This could include:
- housing available through the NRM;
- consideration within the needs assessment to establish whether accommodation can be provided under the Care Act 2014 and /or;
- consideration as to whether section 1 of the Localism Act 2011 will require the local authority to provide housing to prevent a breach of human rights.
5.2 National Referral Mechanism support
Local authorities are under a duty under section 52 of the Modern Slavery Act 2015 to notify the Home Office about a potential victim of trafficking or modern slavery. A referral should be made to the NRM if the person’s consent is obtained.
If the person does not consent to a referral to the NRM, there is still a duty to notify the Home Office of potential victims using the online reporting form.
When a referral is made to the NRM, housing and subsistence support are provided by the Salvation Army and partner organisations for 45 days during the recovery and reflection period. This period provides time for the person to consider their options. They should receive a conclusive grounds decision about whether they are a victim of trafficking or not as soon as possible after 45 days. When they receive a positive grounds decision they are entitled to a further 14 days’ support, but extensions are considered on a discretionary basis by the Home Office. During this period, victims are expected to decide whether to return to their country of origin or apply for discretionary leave to remain, which if successful will allow the person to have recourse to public funds. If the person receives a negative conclusive grounds decision, then their support will only continue for two days.
A victim of trafficking or modern slavery may be eligible for accommodation under the Care Act 2014. Where this does not apply, the local authority would need to consider using section 1 of the Localism Act 2011 to provide support.
5.3.1 Care Act 2014
A potential or confirmed victim of trafficking may request a needs assessment to establish whether they require care and support, including accommodation. Therefore it is highly likely that such a person will present with an appearance of need, and so would need to be assessed under the Care Act 2014.
When a person is in a group excluded by Schedule 3 of the Nationality, Immigration and Asylum Act 2002, the local authority will also undertake a human rights assessment because care and support can only be provided where this is necessary to prevent a breach of a person’s human rights.
5.3.2 Localism Act 2011
In some cases, victims of trafficking or modern slavery will not qualify for care and support under the Care Act, so cannot be housed under the Act. When a person is not receiving support through the NRM and does not have any alternative means of accessing housing, the local authority must consider whether to use its power under section 1 of the Localism Act 2011 to provide accommodation.
Access to immigration and other specialist advice will be essential to help establish whether the person has an entitlement to benefits, for example, whether an EEA national has a right to reside or what options a non-EEA national without any immigration permission may have.
6. Human rights considerations
Whilst taking into account the legal restrictions outlined above, local authorities cannot carry out their duties in any way that breaches a person’s human rights. In all situations, the local authority should provide support where necessary to avoid a breach of their human rights. The local authority should assess the person’s needs if there would be a breach of human rights if support is not provided.
In practice this means that local authorities must undertake a human rights assessment to consider whether, or to what extent, the circumstances are such that the bar on providing support or assistance under the Care Act should be lifted in order to avoid a breach of human rights.
If a case is open to the local authority, it can proceed directly to a human rights assessment. This will involve considering whether the adult is freely able to return to their country of origin without there being any breach of their human rights. If there are no legal or practical barriers to return, the local authority does not have a duty to support such an adult.
Legal and practical obstacles can include factors such as lack of travel documents or being temporarily unable to travel due to a medical condition. The local authority may therefore use the human rights assessment to consider how these obstacles might be overcome. Contacting relatives or finding out about services in the country of origin may help facilitate their return.
If there are obstacles in place that mean the person cannot leave or they are taking reasonable steps to plan for leaving the United Kingdom (UK), it may be necessary to continue to provide support to them for human rights reasons. If the person accepts the offer of assistance to return to their country of origin, support should normally continue until they leave.
Local authorities must consider the case of Limbuela v Secretary of State  UKHL 66, 3 WLR , in which it was determined that a decision which compels a person to sleep rough, or be without shelter, and without funds usually amounts to inhuman treatment and therefore engages Article 3 of the European Convention on Human Rights (ECHR). The House of Lords ruled that it was incompatible with Article 3 to refuse support to destitute asylum seekers. The Lords attempted to identify the point at which deprivation becomes so grave that the state is obliged to intervene and provide support. The state has a duty to provide support when
“….. it appears on a fair and objective assessment of all relevant facts and circumstances that an individual applicant faces an imminent prospect of serious suffering caused or materially aggravated by a denial of shelter, food or the most basic necessities of life”
Human rights issues centre on:
Article 3: prohibition on torture or inhuman or degrading treatment or punishment; and
Article 8: respect for private and family life.
The applicant may have alternative means of support in the UK that is family, friends or charity. If they have been in the UK for a long time, it is appropriate for the local authority to ask how long they have been supported and why it has now ceased.
Article 8 may mean a person’s right to family is not just limited to the applicant, for example there may be a relationship between a child and a non-custodial parent to consider. An Article 8 right is not absolute; but a breach is permissible if the grounds are subject to justification and a proportionality assessment.
ZH (Tanzania) v Secretary of State of the Home Department  UKSC4 if there are children involved the best interest of the individual child is paramount, but this is not determinative in a proportionality assessment.
Under the Children Act 2004 the local authority “must make arrangements for ensuring that – (a) their functions are discharged having regard to the need to safeguard and promote the welfare of children…”
In an email to the NRPF Network dated 29 July 2015, the Home Office and Department of Health confirmed that:
- the Nationality, Immigration and Asylum Act 2002 prevents excluded groups from receiving ‘support or assistance’ under the Care Act (see 3.2 Adults Ineligible for Support and Assistance;
- local authorities may undertake needs assessments for adults requiring care and support and carers;
- local authorities may meet urgent needs for care and support whilst undertaking the relevant assessments.
7. Role of the Local Authority
7.1 To provide information
There is no prohibition on a local authority undertaking its general duties with regards to providing information and advice or prevention.
Practitioners should help non-EEA nationals who are not seeking asylum to access immigration information to establish an appropriate pathway.
When a person is provided with care and support under the Care Act 2014 or is accommodated under the Localism Act 2011, the local authority will need to ensure that staff are equipped to assist the person to establish financial independence. There is a duty to promote wellbeing as well as reducing costs incurred from funding accommodation and financial support. A solution to a person’s destitution will often be achieved by obtaining a form of immigration status that will allow recourse to mainstream welfare benefits and housing services.
It is unlawful to provide immigration advice that relates to a person’s specific circumstances unless the adviser is registered with the Office of the Immigration Services Commissioner (OISC), or is exempt from registration, for example, a solicitor registered with the Solicitors Regulation Authority.
7.2 Pre-assessment screening: all cases
In all cases, in establishing the facts of the case when an adult with NRPF requests assistance, the local authority should:
- establish whether it is the responsible local authority, that is, whether the person is ordinarily resident within its area (see Ordinary Residence chapter);
- carry out an immigration check to establish any eligibility for public funds under immigration legislation. The adult must be asked to provide evidence of their nationality and, if relevant, evidence of their immigration status in the UK. Immigration checks can be obtained online or via NRPF connect;
- check whether there are any legal restrictions on providing assistance (see Section 3, Legal Restrictions on Providing Assistance) and
- establish whether it needs to meet urgent needs for care and support, including the provision of accommodation.
7.3 Adults subject to immigration control who are destitute but have no additional needs
- Do they fall within the statutory bar to the provision of care, support and prevention under the Care Act, because their needs have arisen solely as a result of destitution and are they subject to immigration control?
- If so, a human rights assessment should be undertaken to assess whether, or to what extent, the bar on providing support or assistance should be lifted in order to avoid a breach of human rights (see Section 6, Human rights considerations);
- If not (that is, they have additional needs not arising solely from destitution), an assessment of needs should be undertaken in the usual way. These include situations where there is a possibility or evidence that a migrant has additional mental or physical health, learning disability or social care needs, or any safeguarding concerns (see Safeguarding Adults Procedures chapter).
7.4 Adults who are not eligible for support and assistance under the Nationality, Immigration and Asylum Act 2002
- Do they fall within the statutory bar to the provision of care and support? (see Section 3.3 Adults ineligible for support and assistance above);
- If so, there is no restriction on the local authority providing information and advice or prevention;
- A human rights assessment should be undertaken to assess whether, or to what extent, the bar on providing support or assistance should be lifted in order to avoid a breach of human rights( see Section 6, Human rights considerations).
7.5 Eligibility for services
Circumstances when a local authority can support an adult
A local authority may support an adult when these conditions apply. They:
- are destitute according to the Immigration and Asylum Act 1999;
- they have a dependent child;
- they are not receiving, having applied for, or are potentially eligible for Home Office support for refused asylum seekers.
7.6 Eligibility for other services
A person with NRPF is prohibited from accessing specified welfare benefits, homelessness assistance and an allocation of social housing through the council register; they are not excluded from accessing other publicly funded services because of the NRPF condition.
However, there are often eligibility criteria attached to these services which relate to a person’s nationality or immigration status or are linked to receiving certain welfare benefits. It is therefore important to be aware of what services a person with NRPF may be entitled to access.
A person with NRPF can rent a property from a housing association if they apply directly to the housing association. They cannot rent a housing association property if this was applied for through the local authority housing allocations list, because this is a public fund for immigration purposes.
When applying to undertake further education (aged 16 years +), a person with NRPF will only be able to undertake a course for free if they meet the funding criteria; immigration status and length of residence in the UK will be relevant factors.
7.6.3 NHS Treatment
Services delivered by a GP, treatment for certain contagious diseases and accident and emergency treatment at a hospital, are free of charge to everyone regardless of their immigration status.
The main groups of people who will be charged for NHS treatment are:
- visa overstayers;
- illegal entrants;
- refused asylum seekers (who are not receiving Home Office support or accommodation under the Care Act 2014).
7.7 Complying with the Care Act following a grant of leave to remain
Where social care are funding non-supported housing as part of a the care and support plan for a person with NRPF, and a change in immigration status means that the person now has recourse to public funds, then assistance with approaching a housing authority and claiming benefits will need to be provided.
Section 23 of the Care Act 2014 does not allow the local authority to provide accommodation under the Care Act when it could otherwise be provided under the Housing Act 1996, so this transfer of responsibly must occur as soon as possible after the person becomes eligible for housing assistance. It is also important that any care package being provided is not interrupted if the person moves into different accommodation.
8. Refusing or Withdrawing Support
Care and support can be refused or withdrawn following a change of circumstances.
The Care Act 2014 requires a local authority to record the assessment decision in writing and to communicate the outcome to the person requesting support. This would apply when a person:
- is assessed as having no eligible needs under the Care Act or, following a review, no longer has eligible care and support needs, and the local authority has also decided not to use its discretionary powers under section 19(1) of the Localism Act 2011 to provide housing;
- is in a group excluded by Schedule 3 of the Nationality, Immigration and Asylum Act 2002, and is to be refused support following a human rights assessment that concludes they can return to their country of origin to prevent a breach of human rights.
The assessment outcome should state why the person is not eligible, or not longer eligible for support.
When a person with NRPF has been provided with accommodation pending the outcome of an assessment and this is to be withdrawn, reasonable notice must be given to allow them to make alternative arrangements. What constitutes reasonable notice will depend on the person’s circumstances, with 21 days being a reasonable minimum period.
When a person has another support option available to them, for example, Home Office asylum support, then it would be good practice for the local authority to support their application for this and liaise with the Home Office to follow up the progress of the application through NRPF Connect.
8.1 Practice point on terminating support
Where support is to be terminated, this decision should be made by the service manager who should be informed by a current assessment record.
The social worker should inform the adult of this decision which should be confirmed in writing and should include the 28 day notice period from when support will terminate. It should also advise the person to seek legal advice if they disagree with the decision. The letter should be translated into the person’s first language as appropriate.
8.2 People excluded from support and returning to country of origin
This applies to people who are in a group excluded from support by Schedule 3 of the Nationality, Immigration and Asylum Act 2002. When the provision of care and support is being refused following a human rights assessment, which has determined that a person can return to their country of origin, then assistance with the return must be offered. This could be provided by the Home Office or local authority.
It will normally be appropriate for the local authority to provide accommodation and financial support whilst return is being arranged.
Where a person refuses an offer of assistance with return to their country of origin and remains in the UK when they have no current immigration permission and no legal barrier preventing them from returning, they would need to be advised of the risks and difficulties of living in the UK unlawfully:
- the Home Office may undertake enforcement action to remove them from the UK;
- they will not have permission to work (working when a person has no immigration permission to do so is a criminal offence);
- private landlords will not be able to rent, sub- let or set up a paying lodging agreement with a person who has no immigration permission;.
- they will not be able to obtain many types of non-urgent NHS treatment unless they can provide full payment upfront, including hospital treatment, some mental health and possibly even drug and alcohol services;.
- they will not be able to open a bank account, may have any accounts held closed or frozen, and will be breaking the law if they drive, whether they hold a licence or not.
Where the local authority has lawfully determined that a person can freely return to their country of origin, but the person refuses to do so, the courts have found that any hardship or degradation suffered will be a result of their decision to stay in the country and not as a result of any breach of human rights by the local authority.
8.3 Home Office funded return
The Home Office can fund and arrange travel for people who wish to return to their country of origin.
Any person who is living in the UK without immigration permission or has been refused permission to enter or stay in the UK can apply to undertake a voluntary return. This includes EEA Nationals who are not exercising a right to reside.
The Home Office will organise and fund the flight but will expect the person to arrange their own documentation. The Home Office can normally only provide additional support in obtaining documentation when a person has a vulnerability which means that it would be difficult for them to do this by themselves.
However, the person will not be able eligible for an assisted return if they:
- were being investigated by the police or detained by the Home Office;
- have been convicted of an immigration offence and given a deportation order;
- have already been given humanitarian protection, indefinite leave to remain or refugee status;
- have been informed they are a ‘third country case’; or
- are a European Economic Area (EEA) or Swiss national (unless they have been confirmed to be a victim of trafficking).
A person will usually only have one opportunity to apply for an assisted return.
Methods of contacting the Home Office:
- people can apply online or contact the helpline: 0300 004 0202
- email: firstname.lastname@example.org
- local Home Office Immigration Compliance and Enforcement Teams may facilitate voluntary returns involving EEA nationals.
Local authorities have the power to fund a return to the country of origin, although this may arise from different legislation depending on the person’s nationality or immigration status.
For EEA nationals and people with refugee status granted by another EEA state, the Withholding and Withdrawal of Support (Travel Assistance and Temporary Accommodation) Regulations 2002 provide a power to:
- purchase travel tickets to enable the person to return to their country of origin, and
- provide time-bound interim accommodation pending the return to the country of origin, but not cash payments.
6. Good Practice Points
Local authorities need to be consistent, lawful and efficient in their response when assisting people with NRPF. The following good practice points have been established by the NPRF Network working with partner authorities and agencies.
- ‘A specialist and targeted response is required to administer services effectively; ensure there is an identified lead practitioner or team to deal with NRPF cases.
- Local authorities lacking a specialist NRPF worker should ensure that staff undertaking needs assessments for people with NRPF are adequately supported because any practitioner carrying out an assessment under the Care Act 2014 must have: ‘the skills, knowledge and competence to carry out the assessment in question and is appropriately trained’, and where knowledge is lacking, ‘must consult a person who has expertise in relation to the condition or other circumstances of the individual whose needs are being assessed in any case where it considers that the needs of the individual concerned require it to do so’.
- Establishing internal protocols and having regard for the legislation and case law referenced in this guidance will help ensure that NRPF cases are identified at point of referral and dealt with consistently. This may include how discretionary powers are exercised towards particular groups, for example, pregnant women without children.
- Provide an interpreter if this is required.
- Obtain immigration status information and monitor caseloads and expenditure using NRPF Connect, which will also inform the Home Office of local authority involvement in case. This information contributes to the only national data source on NRPF service provision.
- A local authority will usually establish whether it has a duty to provide support to an adult with NRPF by undertaking two steps:
- Pre-assessment screening – establishing the facts of the case prior to assessment
- Assessing need – determining eligibility for the provision of services’. (NRPF Network, Good Practice Points).
Appendix A: Full List of EEA Countries
- Czech Republic;
- Iceland (not EU member);
- Lichtenstein (not EU member);
- Norway (not EU member);