Introduction

This guidance sets out how to undertake a human rights assessment when Schedule 3 of the Nationality, Immigration and Asylum Act 2002 (‘Schedule 3’) applies to a person with no recourse to public funds who is requesting or receiving accommodation and financial support from social services.

1.1 Supporting people with no recourse to public funds

The provision of accommodation and financial support by social services for people with no recourse to public funds is recognised by the UK Government and courts as being an essential safety-net for children within families, care leavers, and adults with care needs, who are at risk of homelessness and cannot access benefits due to their immigration status.

Social services’ assistance is not a ‘public fund’ for immigration purposes and therefore can be provided to a person with no recourse to public funds. However, Schedule 3 restricts a local authority’s ability to provide accommodation and finical support to a person who is ‘in breach of immigration rules’, and some other groups, where the person can return to their country of origin to avoid destitution in the UK. When Schedule 3 applies, the local authority must carry out a human rights assessment in addition to the needs assessment in order to establish whether the person can be expected to return to their country of origin. If a barrier to return is identified, accommodation and financial support can be provided when a person meets the usual eligibility criteria for social services’ support.

Providing support to people with no recourse to public funds can be a high-cost service for local authorities, which is not reimbursed by central government. NRPF Network data shows that, at the end of March 2021, 68 local authorities in England and Scotland were collectively spending £57 million supporting 3,200 households with no recourse to public funds. The average length of time that a family received support for was 1.5 years, whereas for adults with care needs this increased to 2.5 years. 79% of family and 51% of adult households exited support following a grant of leave to remain, demonstrating that regularising immigration status is the most common route off support rather than return to country of origin.

Although the Home Office provides local authorities with funding to support Unaccompanied Asylum Seeking Children, the weekly amount significantly reduces once a child turns 18 and ends three months after a care leaver becomes ‘Appeal Rights Exhausted’.

Local authorities must therefore ensure that legislation governing eligibility for this essential ‘safety-net’ is correctly applied and that appropriate steps are taken to assist people to achieve a sustainable outcome to their situation of destitution when support is provided. The human rights assessment provides an opportunity to identify and document what action may need to be taken to assist a person who is ‘in breach of immigration laws’ to achieve a sustainable outcome. In the majority of cases, a sustainable outcome will be achieved by obtaining leave to remain and transferring to mainstream benefits and/or employment. However, for those who have exhausted their immigration options and are unable to pursue further claims to remain in the UK, return to country of origin will need to be considered.

1.2 How to use this guidance

This guidance accompanies the NRPF Network’s human rights assessment template.

The guidance and template can be used by local authority practitioners across the UK who are working with children within families, care leavers, or adults with care needs.

For the purpose of this guidance, the following terms are used:

Human rights = a person’s ‘Convention rights’, as set out in the European Convention on Human Rights (ECHR) and incorporated into the Human Rights Act 1998.

Person = An adult, care leaver (age 18+), or parent (in a family household). This will be the ‘main applicant’ for the purpose of completing the template.

Social services’ support = One of the following types of assistance provided by social services under legislation set out in section 3.1 of this guidance:

Care and support, including accommodation and financial support, provided to an adult with care needs.
Accommodation and financial support provided to a family with a child in need.
Leaving care support provided to a former looked after child (age 18 or older).

For more information about when social services’ duties apply to provide accommodation and financial support to people with no recourse to public funds, local authorities in England can refer to the following NRPF Network practice guidance:

Local authorities in Scotland can refer to COSLA’s migrants’ rights and entitlements national guidance.