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Families with No Recourse to Public Funds

NOTE

This is an area which is subject to legal change, and legal advice must be sought as necessary.

Some provisions of the Immigration Act 2016 have come into force, while others are yet to come into force. Provisions which have not yet come into force include provisions that will end asylum support for refused families, limit the availability of Home Office support for refused asylum seekers, and introduce reforms to local authority support provision for destitute families and care leavers who have no immigration status.

This chapter will be updated as the legislation changes.

See also: NRPF Network.

RELEVANT GUIDANCE

No Recourse to Public Funds Network Practice Guidance

Securing British Citizenship for Looked After Children - NRPF Network

RELATED CHAPTER

Unaccompanied Migrant Children and Child Victims of Trafficking and Modern Slavery Procedure

1. Who has NRPF?

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.

The definition of 'subject to immigration control' is set out in section 115 Immigration and Asylum Act 1999 ('exclusion from benefits'), and includes non-EEA nationals who:

  • Require leave to enter or remain in the UK but do not have it (e.g. an illegal entrant 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 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. adult dependant relatives of people with settled status).

2. Meaning of 'Public Funds'

  • Attendance allowance;
  • Carer's allowance;
  • Child benefit;
  • Child tax credit;
  • Council tax benefit;
  • Council tax reduction;
  • Disability living allowance;
  • Discretionary support/ welfare payment made by a local authority;
  • Domestic rate relief (Northern Ireland);
  • Housing benefit;
  • Income-based jobseeker's allowance;
  • Income-related employment & support allowance;
  • Income support;
  • 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.

(section 115 Immigration and Asylum Act 1999 and paragraph 6 Immigration Rules)

Section 118 Immigration and Asylum Act 1999 excludes a person subject to immigration control from being entitled to access an allocation of social housing through the council register and homelessness assistance.

People with the following types of immigration status WILL have recourse to public funds:

  • Indefinite leave to enter or remain, or no time limit (apart from adult dependent relative);
  • Right of abode;
  • Exempt from immigration control;
  • Refugee status;
  • Humanitarian protection;
  • 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 slavery;
    • Destitution domestic violence concession.
  • Limited leave to remain granted under family and private life rules where the person is accepted by the Home Office as being destitute;
  • UASC leave.

3. Role of the Local Authority

There are 2 stages that a local authority will usually follow to establish whether it has a duty to provide support to a family with NRPF:

  • Pre-assessment screening: establishing the facts of the case prior to assessment;
  • Assessing need: determining eligibility for the provision of services.

3.1 Pre-assessment Screening

When a family is referred for or requests accommodation and/or financial support, the local authority will need to consider:

  • Whether there is a duty to undertake a child in need assessment;
  • What the parents' nationality and immigration status is in order to:
    • Ascertain eligibility for employment, welfare benefits or asylum support; and
    • Determine whether the family can only receive support if this is necessary to prevent a breach of their human rights or EU treaty rights.
  • Whether emergency support needs to be provided whilst assessments are being carried out.

At this first point of contact the parent can be asked for information relating to their financial circumstances, which may be used to inform the child in need assessment to determine whether the family are eligible for support. Families should not be refused support without proper enquiries being made to identify needs of the child.

3.1.1 Checking Immigration Status

When a family requests accommodation and/or financial support, the local authority will establish nationality and immigration status of the parents for several purposes:

  1. To ascertain any possible entitlement to welfare benefits, housing assistance, employment or Home Office asylum support;
  2. To identify whether the parent is in an excluded group and so can only be provided with support where this is necessary to prevent a breach of their human rights or EU treaty rights (see Section 3.3, Assessments when the Exclusion under Schedule 3 Nationality, Immigration and Asylum Act 2002 Applies - Human Rights Assessment);
  3. Where a parent is in an excluded group, find out whether there are any immigration claims 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.

For non-EEA nationals, evidence of immigration status may be provided in the form of documents issued by the Home Office in the UK or overseas visa application centres/entry clearance posts. Documents issued may be different depending on the type of immigration permission given and date it was granted.

A person may have one or a combination of the following documents:

  • Biometric residence permit (BRP) – this is now issued to most people who have been granted leave to enter or remain for longer than six months;
  • Immigration status document;
  • Visa or residence permit in passport;
  • Stamp in passport;
  • Asylum registration card (ARC);
  • Home Office issued convention travel document – for a refugee;
  • Certificate of travel – for a person with humanitarian protection who cannot get a national passport;
  • EEA family permit/ residence card/ permanent residence card/ derivative residence card issued to the family member of an EU national;
  • Home Office letter.

European Economic Area (EEA) nationals and most of their family members are not required to obtain documentation from the Home Office to confirm their right to live in the UK because the right to reside under European law is acquired on the basis of a person's circumstances. This means that the local authority will need to ask questions about the person, and their family member's length of residence and activities whilst in the UK.

The Home Office provides a free e-mail status checking service: ICESSVECWorkflow@homeoffice.gov.uk.

The primary reason for establishing the parent's nationality and immigration status is because local authorities need to find out whether the family can only receive 'support or assistance' under section 17 of the Children Act 1989 if such support is necessary to prevent a breach of their human rights or EU treaty rights – see Section 3.3, Assessments when the Exclusion under Schedule 3 Nationality, Immigration and Asylum Act 2002 Applies - Human Rights Assessment.

3.1.2 Threshold to Undertake a Child in Need Assessment

This will be in accordance with the Effective Support for Children and Families (Thresholds) Document. A child in need assessment is likely to be required for any family presenting on the basis that they do not have adequate accommodation and/ or sufficient income to meet their living needs because of their inability to access benefits or employment, or where the child's circumstances suggest this may be the case. For example:

  • The child regularly does not have adequate food, warmth, shelter or essential clothing;
  • When a parent's limited financial resources or having no recourse to public funds increases the vulnerability of the children to criminal activity e.g. illegal working;
  • When a parent is unable to provide for material needs, which negatively impacts on the child.

3.1.3 Emergency Support

Local authorities will undertake a detailed investigation into the family's financial and housing circumstances to establish whether the family will be eligible for support under 17 Children Act 1989.

Under section 17, a local authority has the power to provide emergency housing and/or financial support to a family when a child's welfare is at risk whilst assessments or enquiries are being carried out.

Refusing to provide support to a family who would otherwise be homeless and destitute is likely to be a breach of Article 3 of the European Convention on Human Rights, and so potentially unlawful.

3.2 Assessing Need under Section 17 Children Act 1989

3.2.1 Which authority must undertake an assessment?

Various court cases have found that the duty to assess under section 17(1)(a) of the Children Act 1989 is triggered by the physical presence of a child in need in the local authority's area. There may be a requirement for an additional local authority to co-operate, e.g. where the child resides in one local authority area but attends school in a different local authority area.

3.2.2 Assessment Considerations

As part of the assessment, the local authority would need to establish what other support options are available to the family in the UK, or whether return to country of origin may resolve the family's inability to self-support in the UK when the parent is in an excluded group. There will be many cases where such support options will be limited:

  • Where the parent has no current immigration permission, is in an excluded group and has a pending human rights application or appeal that has not been determined by the Home Office or courts which constitutes a legal barrier preventing the family from leaving the UK;
  • Where the parent is the primary carer of a British (or other EEA national) child and has a right to reside under European law, is not in an excluded group, has permission to work but cannot claim benefits and social housing;
  • Where the parent has leave to remain with the NRPF condition, is not in an excluded group, has permission to work but is excluded from benefits and social housing.

In such cases the courts have been clear that the purpose of section 17 is to provide a safety net of support for families who either cannot leave the UK or who are lawfully present in the UK but are prevented by their immigration status from being able to claim benefits usually provided to families with a low income.

The local authority must gather information which is adequate for the purpose of performing its statutory duty under section 17 Children Act 1989, and must also have due regard to the child's best interests in the context of having regard to the need to safeguard and promote the welfare of children.

Any information and evidence already gathered by the local authority as part of its initial enquiries must be considered within the child in need assessment, in balance with other factors relating to the welfare of the child:

  • How the family's financial and housing circumstances are affecting the child's health and development, what assistance the child needs and how the child would be affected if they do not receive such help;
  • How urgently the family needs assistance;
  • Details of any medical conditions affecting the child or their family members;
  • Details of the child's current and previous schools;
  • If the child's other parent is not in the family household, their details including nationality and immigration status, what contact the parent and child has with them and whether they are providing any support.

Depending on the family's particular circumstances, information and documents relating to the family's finances and housing will need to be requested.

The child in need assessment must consider all relevant information, all findings and the reasoning behind them must be fully documented, with the parents being given an opportunity to respond.

3.2.3 Limitations on the Ability to Self-support

When considering the parent's ability to self-support it is important to be aware of the restrictions imposed by the Immigration Act 2014 and Immigration Act 2016 that apply to people who do not have any current immigration permission:

  • Since 12 December 2014, banks and building societies have been prohibited from allowing a person with no current immigration permission to open a new current account;
  • A person with no immigration permission may have their bank accounts closed or frozen, as since 1 January 2018, banks and building societies have been required to check details of current account holders against a database of Home Office information on a quarterly basis;
  • Since 1 February 2016, private landlords in England have not been able to legally rent or sub-let a property to a person who does not have any current immigration permission and who has not been granted permission to rent on an exceptional basis by the Home Office. This also applies to renting a room to paying lodgers;
  • Since 1 December 2016, landlords have been required to take action to end a tenancy or evict a tenant when they find out or have reasonable cause to believe that the occupier does not have any immigration permission; when the Home Office informs a landlord that this applies to their tenant, the landlord may undertake possession proceedings without having to obtain a court order;
  • On 12 July 2016, undertaking work or self-employment became a criminal offence, punishable by imprisonment, for people who do not have any current immigration permission, or have a condition attached to their leave to remain restricting employment.

Local authorities must be fully aware of these measures in order to ensure that they do not inadvertently encourage or condone criminal activity when determining what alternative support options are available to a family.

When a local authority finds that a child is not in need because the parent can secure accommodation or has other housing arrangements available to them, the local authority must consider whether the family can realistically access this alternative support and whether the suggested accommodation arrangement is suitable for the child.

3.2.4 Considerations when Parents are in an Excluded Group

When a parent is in one of the groups of people that are excluded from receiving accommodation and financial support under section 17, a human rights assessment will also need to be undertaken in conjunction with the child in need assessment in order to determine whether support must be provided to prevent a breach of the family's human rights or rights under EU treaties.

If return to country of origin is being considered, the child in need assessment should also address the child's needs within the country of origin and how they may or may not be met, as this information would be relevant to the human rights assessment.

See Section 3.3, Assessments when the Exclusion under Schedule 3 Nationality, Immigration and Asylum Act 2002 Applies - Human Rights Assessment.

3.2.5 Providing Support

The local authority has a power to provide a wide range of services in order to meet assessed needs under section 17 Children Act 1989. The local authority is not under a duty to meet all formally assessed needs; section 17 is a target duty and may take into account its resources in determining which needs are to be met, but such a decision must be reached rationally and the local authority must act reasonably.

The Court of Appeal in R (C, T, M & U) v LB Southwark [2016] EWCA Civ 707, set out the following principles:

  • An assessment must be carried out to determine the needs of a particular child, in line with statutory guidance and with proper consideration of the best interests of the child;
  • Support for families with NRPF should not be fixed to set rates or other forms of statutory support without any scope for flexibility to ensure the needs of an individual child are met;
  • Local authorities must undertake a rational and consistent approach to decision making, which may involve cross-checking with internal guidance or other statutory support schemes so long as this does not constrain the local authority's obligation to have regard to the impact of any decision on a child's welfare.

Case-law has held that Section 17 could only be used to fund travel assistance to the country of origin when the local authority is confident that the child would no longer be 'in need' in that country.

In practice, when return to country of origin is being considered, the child's needs, for example, access to education and healthcare, will be considerations that are relevant for determining whether there would be a breach of Article 8 (right to family and private life). It is therefore appropriate for the child's needs in the country of origin to be addressed within the child in need assessment when the parents are in an excluded group, and this information referenced within the human rights assessment.

3.2.6 Ongoing Duty to Reassess Need

Section 17 is an ongoing duty, and when a family's circumstances change the local authority must decide whether this means that the child's needs must be reassessed.

3.3 Assessments when the Exclusion under Schedule 3 Nationality, Immigration and Asylum Act 2002 Applies - Human Rights Assessment

3.3.1 Excluded Groups

When a family with NRPF requests support, the local authority must establish whether the parent is in an excluded group, and therefore the family can only be provided with the support or assistance that is necessary to prevent a breach of their human rights or European Union (EU) treaty rights – a 'human rights assessment'.

Section 54 and Schedule 3 Nationality, Immigration and Asylum Act 2002 (as amended) set out categories of person who are not eligible for support from local authorities under Children Act 1989 Sections 17 (children in need), or sections 23C, 23CA, 23CZB, 24A or 24B in relation to care leavers. They are also not eligible for adult social care support under the Care Act 2014 or accommodation under homelessness legislation. They can only receive 'support or assistance' under section 17 Children Act 1989 if such support is necessary to prevent a breach of their human rights or EU treaty rights:

  1. 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 an EEA country other than the UK ('refugee status abroad');
  2. 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 ('citizen of other EEA state');
  3. Failed asylum seekers who have exhausted their appeal rights and who have failed to co-operate with removal directions ('failed asylum seekers');
  4. 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 ('persons unlawfully in the UK');
  5. Persons who are failed asylum seekers with dependent child(ren) and who have failed without reasonable excuse to take reasonable steps to leave the UK voluntarily ('failed asylum seeker with family').

Schedule 3 does not mean that assistance can automatically be refused to a family when the parent is in an excluded group, because support must be provided where this is necessary to avoid a breach of the family's human rights or rights under EU treaties.

The purpose of Schedule 3 is to restrict access to support for a family where the parent is in an excluded group because they either have no permission to remain in the UK, or can no longer self-support, and when returning to country of origin (where they may be able to access employment and receive services), would avoid a breach of human rights which may occur if they remain destitute in the UK. This means that, along with establishing whether there is a child in need, local authorities must identify whether there are any legal or practice barriers preventing the family's return to the parent's country of origin, as return cannot be considered unless these are cleared. This is done by undertaking a human rights assessment.

3.3.2 Families that are Not Excluded

The Schedule 3 exclusions do not apply to all families with NRPF. A family will not be excluded from receiving assistance under section 17 where the parent has one of the following immigration status types:

  • Limited leave to enter or remain in the UK with the NRPF condition;
  • Derivative right to reside under European law, for example:
    • Primary carer of a British (or other EEA national) child (Zambrano carer);
    • Primary carer of a child (in education) of an EEA worker;
    • Primary carer of a self-sufficient EEA national child.
  • Asylum seeker;
  • Refused asylum seeker who claimed asylum at port of entry (providing the other categories specific to refused asylum seekers do not apply).

Such families are not excluded from section 17 support and would need to be provided with assistance if they are found to be eligible for this following a child in need assessment.

Local authorities are often required to provide support to families where the parent is lawfully present, for example, has limited leave to remain with NRPF, or a derivative right to reside under European law as a Zambrano carer. These types of immigration status are commonly held by single parents who are caring for a British child, or child who has lived in the UK for seven years.

When a parent can work but is unable to claim benefits to top up a low income, such as housing benefit and tax credits, and cannot access more affordable social housing, they will face difficulties funding childcare and sustaining employment that enables them to afford accommodation and provide for their family's living needs. When the child is 'in need' as a result of this, local authorities will be required to provide accommodation and/or financial support in the absence of such benefits. The courts have found that this is a positive duty and also that national policies restricting access to mainstream welfare support are lawful because section 17 of the Children Act 1989 provides a safety net to protect destitute children.

3.3.3 Conducting the Human Rights Assessment

The human rights assessment should consider the following in a staged process:

  1. Can the family freely return to the parent's country of origin?
  2. If so, would return result in a breach of the family's human rights under the European Convention on Human Rights ('ECHR')?
  3. Would return result in a breach of the family's rights under European treaties? (EEA nationals and dependent family members of EEA nationals).

Determining Whether the Family Can Freely Return

The first stage of the assessment is to identify whether return is reasonably practicable, which means establishing if there are any legal or practical barriers preventing the family from leaving the UK. If there is a barrier preventing return, then further consideration at this time will not be needed, and the human rights assessment in such cases may therefore be brief, simply documenting and evidencing the barrier, and noting at what point it may need reviewing.

Legal Barriers to Return - e.g. an outstanding application or appeal to the Home Office on human rights grounds.

Practical Barriers to Return - e.g. where a family member is unable to:

  • Obtain identity or travel documentation;
  • Travel due to ill health or a medical condition; or
  • Travel due to being at late stages of pregnancy or caring for a new born baby.

When such barriers apply they may only be temporary, and it might be appropriate to provide support to the family on a short term basis and assist them to overcome this barrier, for example, by helping to obtain travel documentation.

Determining a Breach of Human Rights

When it clear that return is reasonably practicable because there are no legal or practical barriers preventing a family from leaving the UK, the next step is to determine whether the family can return to the parent's country of origin to prevent a human rights breach from occurring, or whether return would give rise to a human rights breach and therefore support must be provided.

If a parent has dual nationality, or has the nationality of one country and a right of residency in another country, then return to both countries must be considered.

For local authorities, when determining whether the exclusions to social care support apply, it is likely that the following articles of the ECHR will need to be considered:

Article 3

'No one shall be subjected to torture or to inhuman or degrading treatment or punishment.'

Article 3 is an absolute right, which means it is never defensible to breach this right.

Article 8

'(1) Everyone has the right to respect for his private and family life, his home and his correspondence.

(2) There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.'

Article 8 is not an absolute right, but is a qualified right, so a certain level of infringement of this right can be permitted so long as there is a lawful basis and legitimate public end, for example, to maintain immigration control.

In family cases it will always be necessary to consider the best interests of the child - the best interests of the children must be considered and given paramount weight when determining whether their removal is proportionate under Article 8 ECHR.

Article 6

'..everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.'

Article 3(1) of the United Nations Convention on the Rights of the Child 1989 states:

'In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.'

Return to Country of Origin

When concluding that the provision of accommodation and financial support under section 17 of the Children Act 1989 is not required because the family can return to the parent's country of origin to avoid a breach of human rights which may be incurred if they remain destitute in the UK, then this must be clearly documented in the human rights assessment. Potential barriers to return must be addressed and a detailed assessment of return must be documented.

The human rights assessment must also outline what options the family may be offered in order to prevent a breach of human rights/EU treaty rights:

  • Whether accommodation and financial support will be provided pending return;
  • What method of return has been recommended and whether any additional support will be provided, for example, through a Home Office assisted return.

Determining a Breach of EU Treaty Rights

Where it has been established that there are no legal or practical barriers preventing the family from returning and there is an EEA national or dependent family member of an EEA national in the household, the local authority must consider whether support or assistance is necessary to prevent a breach of the family's rights under European Union (EU) treaties.

The local authority must identify:

  1. Whether a member of the household has a right to reside in the UK under European law, through their own activities or as the family member of an EEA national. This could be established through their:
    • Length of residence and activities in the UK, e.g. have they studied, worked etc. or
    • Relationship with an EEA national family member living in the UK currently or in the past, and the length of residence and activities undertaken by that family member.
  2. When a member of the household has a right to reside, would they be able to exercise their right to reside if accommodation and financial support is not provided to the family by the local authority?

In almost all cases when a member of the household has a right to reside, either due to their own activities or as a family member of an EEA national, a refusal to provide assistance is likely to prevent that person from exercising their right to reside in the UK, resulting in a breach of their EU treaty rights.

Where a local authority determines that the provision of support is not necessary to prevent a breach of EU treaty rights, the local authority must consider whether the family's return would breach their human rights, in line with the considerations set out in the previous section.

3.4 Refusing or withdrawing support

A decision to refuse or withdraw support under section 17 of the Children Act 1989 may be made following a child in need and/or human rights assessment.

When the provision of accommodation and financial support is being refused following a human rights assessment, which has determined that the family can return to the parent's country of origin, then assistance with return must be offered to the family. This could be provided by the Home Office or local authority.

When section 17 support is being terminated because there has been a change of circumstances that means that a family can now claim welfare benefits and homelessness assistance, they will need to be given a notice period and support with making these claims. Local authorities are under a legal duty to refer a family to the housing authority of their choice for homelessness assistance. In England the housing authority is required to establish whether homelessness can be prevented when a person is eligible and threatened with homelessness within 56 days.

4. Independent Family Returns Panel

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.

Trix procedures

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