This chapter outlines what information will need to be confirmed when Part C of the template is completed.
Part C should only be undertaken when no barriers to return have been identified and, therefore, the person can reasonably be expected to return. In such cases, the local authority must proceed to consider whether return would result in a breach of human rights, having regard to the outcome of any decisions made by the Home Office or appeal courts.
5.1 Home Office decisions
The Courts have been clear that expertise for determining whether a human rights breach w return lies with the Home Office, rather than the local authority (see: O v London Borough Of Wandsworth  EWCA Civ 201 & Birmingham City Council v Clue).
When a decision has been made by the Home Office or appeal courts, the local authority must have regard for the findings that have been made, which will inform the conclusions drawn in the human rights assessment. Therefore, it will be very difficult for a person to demonstrate that the bar on providing social services’ support can be lifted when the Home Office or appeal courts have already concluded that return would not result in a human rights breach.
However, whilst undertaking the human rights assessment, the local authority may identify that no relevant immigration decisions have been made or that there are new matters that need to be put before the Home Office. In the absence of a relevant Home Office decision, it would be very difficult for the local authority to determine whether return would give rise to a breach of human rights. In such cases, the person would need to be provided with an opportunity to seek immigration advice before any conclusions about return are drawn. The human rights assessment can either be paused whilst the person is seeking advice or can be concluded on this basis. In both cases, it will be necessary to regularly review the person’s progress in accessing legal advice.
5.1.1 Obtaining Home Office decisions
The outcome of relevant Home Office decisions will need to be recorded in the human rights assessment. This information can be obtained if the person provides a copy of their decision letter or appeal determination, or by finding out what the outcome of an application or appeal was from the Home Office and/or the person’s legal representative. For details about how to obtain immigration information from the Home Office, see section 3.3.3 of this guidance.
5.1.2 Immigration advice
Signposting to an immigration adviser may be necessary when one of the following circumstances apply:
- The person has never made an application to the Home Office.
- New circumstances, such as the birth of a child, or diagnosis of a medical condition, have arisen since the person made their most recent application to the Home Office.
- It appears that the person may be able to make a claim under the Immigration Rules, or that a child may be entitled to register as a British citizen, which may then enable their parent to pursue an application under the Immigration Rules.
- The person made their previous application without legal advice or did not appear to have good quality legal advice, made the wrong application, or did not lodge an appeal against a Home Office refusal when they had the opportunity to do so.
The template prompts the local authority to consider whether the person requires immigration advice at several stages of the assessment, as this may not be immediately apparent. In some instances the need for immigration advice may only be identified when a more detailed consideration of a human rights breach has begun. The information provided in section 5.2 of this guidance is intended to help establish whether immigration advice may be required.
If an application is submitted as a result of receiving legal advice, then this would need to be treated as a barrier to return until the claim is finally determined by the Home Office and/or appeal courts. For more information about barriers to return, see chapter 4 of this guidance.
If the person is advised by their legal representative that no further applications can be made, the outcome of such advice would need to be recorded in the human rights assessment and would need to be referred to when return is considered.
For information about what types of cases are covered by legal aid and how to find an immigration adviser, see the NRPF Network information on rights and entitlements.
5.2 Identifying a human rights breach
This section of the guidance is intended to help a local authority to identify any potential human rights breaches that will need to be considered in the human rights assessment, and whether there are matters that will need to be put before the Home Office before a conclusion about return can be drawn.
For the purpose of the guidance, the term ‘human rights’ refers to a person’s ‘Convention rights’, as set out in the European Convention on Human Rights (ECHR) and incorporated into the Human Rights Act 1998.
Schedule 3 requires the local authority to undertake its own assessment of return by evaluating the views of the person (and those of any dependants in a family household) against the available factual information, including relevant Home Office decisions.
Where the Home Office has already found that return would not give rise to a human rights breach, it is highly unlikely that the local authority would reach a different conclusion with regards to the person’s ability to return. Any additional investigations undertaken into the person’s situation in their country of origin for the purpose of the human rights assessment would not need to be excessive as these will have already been carried out by the Home Office.
The template is structured to prompt the local authority to consider whether the following Articles of the ECHR may be breached on return to country of origin:
- Article 2: the right to life
- Article 3: the right to be free from torture, inhuman or degrading treatment
- Article 8: the right to respect for family and private life
The factors that must be considered for each person will be different, so this section of the template can be replicated if it is identified that return could breach any other Convention rights. For more information about these Articles and other Convention rights, see the Equality and Human Rights Commission website.
This guidance sets out what will need to be considered in the human rights assessment when the person asserts, or the local authority identifies, that the following reasons could result in a human rights beach on return:
- Protection (asylum) grounds
- Medical grounds
- Family and private life grounds
5.2.1 Protection (asylum) grounds
Return would result in a breach of Article 2 and/ or Article 3 when a person is at risk of being unlawfully killed, and/or is at risk of torture or inhuman or degrading treatment in their country of origin. When a person asserts that they would be at risk of such mistreatment, they would usually need to apply for asylum in order to have their claim for international protection considered by the Home Office.
A person will be granted refugee status if they can demonstrate that they have a well-founded fear of persecution due to their race, religion, nationality, political opinion or membership of a particular social group (see: The 1951 Refugee Convention).
A person may be granted Humanitarian Protection if they do not qualify for refugee status but there is a ‘serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict’. See: the Home Office asylum policy instruction on humanitarian protection.
When a person is refused asylum, then the Home Office will consider whether leave to remain can be granted for other reasons, such as on human rights grounds under the Immigration Rules or on medical grounds, where the person’s removal would result in a breach of Article 3 or Article 8. Some care leavers who were Unaccompanied Asylum Seeking Children (UASC) may have been granted limited leave to remain, often referred to as ‘UASC leave’, until they were 17.5 years old if there were no reception arrangements in their country of origin.
When a person’s asylum claim, and any subsequent appeal, has not succeeded, they will be described as ‘Appeal Rights Exhausted’ (ARE) but in certain circumstances may be able make a fresh asylum claim. This is usually done by making ‘further submissions’ to the Home Office. The following scenarios are examples of when further submissions may be made by a person who is ARE:
- They are raising grounds that were not considered by the Home Office in their original asylum claim.
- They have new evidence, their personal circumstances have changed, or the situation in their country of origin has changed since their original asylum claim was determined.
- They did not have a legal representative assisting them with their asylum claim or they did not appeal against the refusal of their claim when they had the opportunity to do so.
If the person has not previously claimed asylum or may have grounds to make further submissions, the local authority will be unable to conclude whether return would result in a breach of Article 2 or Article 3. Instead, the person would need to be provided with an opportunity to access legal advice to find out what their options are.
If, following legal advice, they claim asylum, the person will no longer be in an excluded group and a human rights assessment will not be required.
Further submissions lodged with the Home Office after the person has sought legal advice would usually need to be treated as a barrier to return. For more information about when further submissions can be treated as a legal barrier, see section 4.1.3 of this guidance.
When a person’s asylum claim has been finally determined by the Home Office and/or appeal courts, or they do not have grounds to make further submissions, the outcome of such decisions, and/or any legal opinion they have subsequently obtained, can be relied upon as evidence that return would not give rise to a breach of Article 2 and/or Article 3.
5.2.2 Medical cases
When a person is receiving medical treatment in the UK, it will be necessary to consider whether the deprivation of such treatment on return to their country of origin would result in a breach of Article 3 and/or Article 8.
In immigration cases that have involved the person’s removal to their country of origin, the Courts have determined that a high threshold will need to be met in order for the deprivation of medical treatment to amount to a breach of Article 3 (see: Paposhvili v. Belgium, Application no. 41738/10, Council of Europe: European Court of Human Rights (13 December 2016) & AM (Zimbabwe) v Secretary of State for the Home Department  UKSC 17).
The case of Paposhvili concerned a person living in Belgium who had multiple health issues, including TB and Leukaemia. The European Court of Human Rights found that Article 3 would be engaged when:
‘…[the person] although not at imminent risk of dying, would face a real risk, on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy.’
AM (Zimbabwe) is a deportation case involving a person who was HIV positive and receiving a type of anti-retroviral medication that was unavailable in their country of origin. The Supreme Court held that Paposhvili should be followed by the UK courts and found that a ‘significant reduction in life expectancy’ meant a substantial reduction, rather than the imminence of death. Article 3 can therefore be engaged in situations other than ‘deathbed’ cases, although the threshold still remains high.
A person’s medical condition and any treatment they require will be relevant factors when undertaking an Article 8 proportionality assessment, and should be considered in line with other family or private life matters that are identified in the human rights assessment. For more information about Article 8 proportionality assessments, see section 5.2.4 of this guidance.
There is little case law that considers human rights breaches arising for medical reasons in the context of applying Schedule 3 when a person is eligible for social services’ support. In the case of De Almeida v Royal Borough of Kensington and Chelsea  EWHC 1082, the Court considered whether refusing accommodation under section 21 of the National Assistance Act 1948 would give rise to a breach of human rights on medical grounds. Mr De Almeida was a Portuguese national who was terminally ill with AIDS and also suffered from depression and skin cancer. The High Court found that there would be a breach of Article 3 if Mr De Almeida was refused accommodation and returned to Portugal because he was a very exceptional case: he was at the end of his life, and, despite Portugal having a health and welfare system, returning him to Portugal would have led to an undignified and distressing death, as he would have faced delay and difficulty in obtaining accommodation and benefits whilst being away from his existing support network of friends and healthcare professionals. The Court also found that return to Portugal would be a breach of Mr De Almeida’s private life under Article 8.
(Since the case of De Almeida was heard, the Care Act 2014 has replaced the National Assistance Act 1948 and Schedule 3 no longer applies to European Economic Area nationals, unless they are ‘in breach of immigration laws’.)
When a person is receiving medical treatment in the UK, the local authority will need to identify whether the Article 3 threshold is met and/or whether Article 8 may be engaged. In order to determine this, the following information will usually need to be documented in the human rights assessment:
- Confirmation of the health condition from medical professionals, including a treatment plan and a prognosis with and without treatment.
- An explanation of how the person’s medical needs could be managed in their country of origin, for example, whether similar or alternative treatment is available and if so, how they would be able to access this.
- What support networks the person would have on return to help access treatment and manage their condition.
- What access to services, housing, and income they would have in their country or origin when their medical condition deteriorates, if this is the expected consequence of the withdrawal of the medical care being received in the UK.
- If the person is unable to access any treatment in their country of origin, an explanation of how this would impact on their prognosis, specifically whether this would expose the person to a serious, rapid and irreversible health decline resulting in intense suffering, or a substantial reduction in life expectancy.
- The outcome of relevant decisions made by the Home Office and/ or appeal courts.
If it is clear from the facts of the case that the Article 3 threshold is not met, this can be explained in the human rights assessment with reference to the person’s circumstances and any medical evidence that has been obtained.
However, if it appears that the Article 3 threshold may be engaged, and the Home Office has not considered the person’s medical grounds in an immigration or asylum application, the local authority will be unable to conclude whether return would result in a breach of Article 3 and/or Article 8. Instead, the person would need to be provided with an opportunity to access legal advice to find out what their options are.
The following scenarios are examples of when a person may require legal advice:
- They have not previously made an application on medical grounds and whether they meet the Article 3 threshold or may experience an Article 8 breach needs to be considered by the Home Office.
- Their health situation has changed since any previous Home Office decisions were made.
- Their last Home Office decision was made before the Supreme Court judgment of AM (Zimbabwe), which expands the Article 3 threshold, was given on 29 April 2020.
Any immigration application or further submissions made to the Home Office after the person has sought legal advice would usually need to be treated as a barrier to return. For more information about legal barriers, see section 4.1 of this guidance.
When a person’s medical claim has been finally determined by the Home Office and/or appeal courts, or they do not have grounds for a further application, the outcome of such decisions, and/or any legal opinion they have subsequently obtained, can be relied upon as evidence that return would not give rise to a breach of Article 3.
5.2.3 Family and private life
In all cases, it will be necessary to establish if return would result in a breach of Article 8 and, if so, whether such interference with the person’s family or private life would be proportionate. This will involve identifying whether return would interfere with the person’s ability to maintain family relationships (family life) or their social and economic ties (private life). This section of the guidance contains information about undertaking a proportionality assessment, grounds for making an Article 8 immigration application, best interests of a child, family life considerations, and private life considerations.
Where the Home Office has already made findings that return would not result in an Article 8 breach, or would not disproportionately interfere with Article 8 rights, it will still be necessary for the local authority to undertake additional investigations to establish whether the full facts of the case in relation to the person’s family and private life have been considered, as these can often change. If new or different information is identified then the person may need to be provided with an opportunity to access legal advice to find out what their options are before a conclusion can be reached about whether return would result in an Article 8 breach.
The following scenarios are examples of when a person may require legal advice:
- The local authority reaches a different conclusion to the Home Office and identifies that return would give rise to an Article 8 breach and that such interference with the person’s family or private life would not be proportionate.
- The person appears to be able to make an application under the Immigration Rules.
- The person’s (or member of the household’s) personal circumstances have changed since any previous Home Office decisions were made.
- The person did not have a legal representative assisting them with their previous Article 8 application or they did not appeal against the refusal of their claim when they had the opportunity to do so.
Any immigration application or further submissions made to the Home Office after the person has sought legal advice would usually need to be treated as a barrier to return. For more information about legal barriers, see section 4.1 of this guidance.
When a person’s family or private life claim has been finally determined by the Home Office and/or appeal courts, or they do not have grounds for a further Article 8 application, the outcome of such decisions, and/or any legal opinion they have subsequently obtained, can be relied upon as evidence that return would not give rise to a breach of Article 8.
The full text of Article 8 is as follows:
‘(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 is 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.’
In order to identify whether Article 8 is engaged, the local authority would need to consider the following questions:
- Does the person have an established family and/ or private life in the UK?
- Will return to country of origin interfere with this?
- Will the interference be significant enough to breach the person’s right to family and private life?
- Is such interference justified and proportionate in light of the fact that there will be other demands on the social services’ budget which the local authority is responsible for spending properly?
See: Razgar v Secretary of State for the Home Department  UKHL 27 & Birmingham City Council v Clue.
Article 8 is a qualified right, which means that a certain level of infringement of a person’s right to a family and private life can be permitted so long as this is justifiable and proportionate to achieving a legitimate public end. A legitimate public end could be maintaining immigration control or protecting the economic wellbeing of the country, such as by withholding scarce local authority resources.
When the person is identified has having an established family life or private life, the local authority will need to consider whether it is justified and proportionate to interfere with those rights by withholding social services’ support on the basis that the person can return to their country of origin. This ‘proportionality assessment’ requires an evaluative exercise that considers all the relevant factors. For family households, the best interests of the child must be given primary consideration.
Two cases illustrate how different conclusions on proportionality may be reached when the relevant facts of each case are taken into account.
The case of AR v Hammersmith and Fulham concerned a Lithuanian national who had lived in the UK for seven years and applied to the local authority for accommodation under the Care Act 2014. AR did not have eligible care and support needs and the local authority concluded that he could avoid destitution in the UK by returning to Lithuania, where his family were living. He had no close connections with family or friends in the UK and had worked in the past. He would be entitled to social assistance and free healthcare if he returned to Lithuania. The Judge found that any interference with his private life under Article 8 as a result of having to leave the UK would be justified due to the local authority’s scarce resources, the claimant’s slight connections with the UK, and the fact that some support would be available in Lithuania.
The case of De Almeida v Kensington and Chelsea concerned a Portuguese national who was terminally ill with AIDS and also suffered from depression and skin cancer. The Court found that return to Portugal would be a breach of his private life, in terms of Mr De Almeida’s physical and psychological integrity. He would not be able to access the immediate support which he needed on return due to his weakened physical condition, his vulnerable mental state, the absence of any friends or family in Portugal to assist him, and the ‘cumbersome’ and slow welfare assessment procedures in Portugal. Such a breach was not justified due to the relatively small cost saving to be gained by the local authority by returning him.
(NB. Schedule 3 no longer applies to European Economic Area nationals, unless they are ‘in breach of immigration laws’.)
Grounds for making an Article 8 immigration application
The Immigration Rules (at paragraph 276ADE and Appendix FM) contain provisions that reflect that when certain requirements are met, it would usually not be proportionate to expect a person to return to their country of origin when Article 8 is engaged.
A person may be able to make an application under the Immigration Rules when one of the following circumstances applies to them:
- They are the sole parent of a British child.
- They are the sole parent of a child who has lived in the UK for seven years.
- They are the partner of a British citizen or person who has a form of settled status, such as indefinite leave to remain in the UK.
- A child in the household has lived in the UK for seven years.
- They are age 18-25 and have lived in the UK for over half their life.
- They are age 18 or older and have lived in the UK for 20 years.#
- They are age 18 or older and have lived continuously in the UK for less than 20 years when there would be very significant obstacles to their integration into their country of origin.
Even where a person does not appear to meet the requirements of the Immigration Rules, they may still be able to make an immigration claim raising Article 8 grounds.
Additionally, a child or adult who was born in the UK on or after 1 January 1983 and who has lived here for 10 years or longer will be entitled to register as a British citizen. For more information about British citizenship rights for children, see the Project for the Registration of Children as British Citizens.
Best interests of a child (family households)
When undertaking an Article 8 proportionality assessment for a family household, the local authority must have regard to Article 3(1) of the United Nations Convention on the Rights of the Child 1989:
‘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.’
Additionally, section 11 of the Children Act 2004 requires local authorities in England to ensure that their functions are discharged having regard to the need to safeguard and promote the welfare of children. See: Department for Education Working together to safeguard children statutory guidance.
Where a child’s right to a family and/or private life is engaged, the best interests of the child need to be a primary consideration when establishing whether it would be proportionate to withhold support on the basis that the family can return to their country of origin. The term ‘best interests’ broadly describes the wellbeing of a child and the child’s views must be sought in order to discover their best interests. The child’s nationality is of particular importance, although is not a ‘trump card’, when assessing their best interests (see: ZH (Tanzania) v Secretary of State for the Home Department  UKSC 4, which concerned the removal of a family with British children).
The legal principles in cases concerning the best interests of children are clearly set out in Zoumbas v Secretary of State for the Home Department  UKSC 74:
- The best interests of a child are an integral part of the proportionality assessment under article 8 ECHR;
- In making that assessment, the best interests of a child must be a primary consideration, although not always the only primary consideration; and the child’s best interests do not of themselves have the status of the paramount consideration;
- Although the best interests of a child can be outweighed by the cumulative effect of other considerations, no other consideration can be treated as inherently more significant;
- While different judges might approach the question of the best interests of a child in different ways, it is important to ask oneself the right questions in an orderly manner in order to avoid the risk that the best interests of a child might be undervalued when other important considerations were in play;
- It is important to have a clear idea of a child’s circumstances and of what is in a child’s best interests before one asks oneself whether those interests are outweighed by the force of other considerations;
- To that end there is no substitute for a careful examination of all relevant factors when the interests of a child are involved in an article 8 assessment; and
- A child must not be blamed for matters for which he or she is not responsible, such as the conduct of a parent.
Many statutory decisions undertaken by Children’s Services will involve consideration of the best interests of a child, so this will not be an unfamiliar concept. Most of the information necessary to inform the human rights assessment, such as a child’s needs relating to education and healthcare, will have been already been documented in the child in need assessment undertaken to establish the family’s eligibility for support.
In a child in need assessment, the local authority will also consider the parent’s ability to meet their child’s needs in the UK in light of any restrictions to services that are imposed on the parent as a result of their lack of lawful status. Where a parent is without lawful status in the UK, the child’s needs in their country of origin will also be considered in the child in need assessment, in order to identify any potential risks on return or safeguarding factors. There will be a presumption that on return to country of origin, the parent will no longer be barred from accessing employment and/or public services, so, in the majority of cases, the material deprivation that has resulted in the child being in need in the UK due to the parent’s immigration status will no longer be experienced on return.
UNICEF and UNHCR’s Safe and Sound guidance sets out what states can do to ensure respect for the best interests of unaccompanied and separated children in Europe, which may be a useful reference when considering a child’s best interests.
Section 55 of the Borders, Citizenship and Immigration Act 2009 requires the Home Office to have regard to the need to safeguard and promote the welfare of children in its decision making, which includes making timely decisions on immigration and asylum claims involving children. For more information, see the Home Office statutory guidance Every Child Matters.
Family life considerations
A person can establish a family life in the UK through their relationships with a spouse or partner, or any children under 18. Family life for the purpose of Article 8 can include relationships between an unmarried couple, an adopted child and the adoptive parent, a foster parent and fostered child, and other family members, depending on the person’s circumstances.
In family cases, children will be expected to return with their parent(s). In such cases, there would be no breach of Article 8 due to household separation. However, there may be a significant interference in family life where there are insurmountable obstacles that prevent a child from returning. For example, where a parent who is living in the UK is not part of the family unit, it would be necessary to establish details of their relationship and contact with the child, and to consider how return may change this and affect the child.
Where members of a household have different nationalities, current entry requirements or residence restrictions in the country of return would need to be checked in case any family members are prevented from being able to permanently reside there.
Private life considerations
A person’s private life will include their social, cultural and economic ties, which could be established through work, education, social networks, or community involvement. The length of a person’s residence in the UK will be a highly relevant factor in considering whether they have an established private life. Any medical and health issues would also need to be considered. For example, if the person will no longer have access to treatment that they are receiving in the UK, the impact of this on their physical and psychological integrity would need to be considered, taking into account the availability of family or other support in the country of return.
For family households, it will be necessary to determine whether each child in the household has an established private life, taking into account their age and how return may impact on the social and cultural ties that the child enjoys in the UK. A child of school age is likely to have established a private life in the UK, so this must be properly considered in the human rights assessment (see: MN & Anor v London Borough of Hackney  EWHC 1205).
In all cases it will be necessary to consider whether the person can reasonably be expected to establish a meaningful level of existence in their country of origin. This may include establishing whether they can work or study, access welfare services, or be assisted by friends or family members. The human rights assessment would need to reference any funds or reintegration support that would be made available by the Home Office or local authority to prevent the person experiencing destitution on return.
The presumption will be that the person will not usually be barred from accessing employment and/ or public services on return to their country of origin, and therefore will not experience the material deprivation that a person who is living in the UK without lawful immigration permission would. A person who is without lawful status in the UK cannot legally work, access free secondary healthcare, rent a property (in England), open a bank account or hold a driving licence.
Although experiencing economic hardship in their country of origin will not usually give rise to a breach of Article 3, this threshold may be met in exceptional circumstances, where conditions of material deprivation give rise to a real risk that the person may be exposed to intense suffering or a significant reduction in their life expectancy (see: Ainte (material deprivation, Art 3, AM) (Zimbabwe)  UKUT 203).
5.2.4 Country of origin information
A detailed analysis of country-specific circumstances will be undertaken by the Home Office, when a person makes an immigration or asylum claim, or by an immigration adviser, when advice is being sought by a person about their immigration options. Any research undertaken by the local authority for the purpose of completing the human rights assessment will not therefore need to be in-depth.
When the local authority needs refer to country information or identify what services may be available in the country of return, the following sources may provide some basic information:
- Home Office country policy and information notes
- United States Department of State country reports on human rights practices
- Amnesty International country information and reports
- World Health Organisation
- International Labour Organisation
- European Commission social security information (EEA countries and Switzerland)
- Routes Home (EEA countries)
5.3 Conclusion and next steps
Where the local authority has identified that relevant matters need to be put before the Home Office, and that the person will need to be provided with an opportunity to access immigration advice before a conclusion about return to country of origin can be reached, the bar on providing support will be lifted. The human rights assessment can either be paused or concluded whilst the person seeks advice, with regular reviews undertaken to check their progress.
Where no barriers to return are identified, and, with reference to decisions have been made by the Home Office and/or appeal courts, the local authority concludes that return would not give rise to a human rights breach, social services’ support can be withheld or withdrawn on the basis that the person can avoid a breach of human rights arising from their destitution in the UK by return to country of origin. In such cases, assistance with return can be offered to the person.
5.3.1 Next steps: immigration advice is required
When the person needs to access legal advice to find out what their options are before the local authority can draw conclusions about return, accommodation and financial support will need to be provided when they qualify for social services’ support.
Services providing legal aid-funded advice or free advice are usually in short supply and high demand, so a reasonable time frame would need to be provided for a person to instruct a legal representative. It will be necessary to undertake regular reviews and to maintain ongoing discussions with the person about their progress in seeking advice, providing any practical assistance where necessary. The human rights assessment can be used to record what assistance will be provided to the person to access immigration advice and how regularly their progress will need to be reviewed. This should be communicated to the individual.
Once a legal representative has been instructed, it can take several weeks, or even months, to prepare an application, particularly for complex matters such as further submissions relating to a fresh asylum claim. The legal representative may require the local authority to provide evidence to support an application, such as a letter detailing its intervention, and the person may require practical help with obtaining documents from other agencies.
5.3.2 Next steps: return to country of origin
When a person qualifies for social services support but is able to avoid destitution in the UK by returning to their country of origin, the local authority will be barred from providing support and can instead offer assistance with return. If the person agrees to undertake a voluntary return, accommodation and financial support may be provided whilst return arrangements are made. For more information about arranging and funding a return, see section 4.2.3 of this guidance.
When support is being withheld or withdrawn on the basis that the person can return, recommendations for the individual and any action the local authority will be taking would need to be documented in the human rights assessment. Where a person refuses the offer of assistance with return, they must be advised of the risks of remaining in the UK without leave to remain and provided with information about any local support services. Where a person has been provided with accommodation, a reasonable notice period would need to be given before support is withdrawn.