Schedule 3 Nationality, Immigration and Asylum Act 2002

This chapter sets out the purpose of Schedule 3, how this applies in practice, and how a human rights assessment can be undertaken.

2.1 What is the purpose of Schedule 3?

Section 54 and Schedule 3 of the Nationality, Immigration and Asylum Act 2002 place a bar on the provision of social services’ support to a person who is ‘in breach of immigration laws’ (i.e. is without lawful status in the UK), unless such assistance is necessary to prevent a breach of human rights.

A decision that compels a person to sleep rough, or to be without food, shelter or funds, usually amounts to inhuman treatment and therefore engages Article 3 of the European Convention on Human Rights (the right not to be subject to torture, or inhuman or degrading treatment) (see: R (Limbuela) v Secretary of State for the Home Department [2005] UKHL 66).

In the case of R (Kimani) v London Borough of Lambeth (2003) EWCA Civ 1150, the Court of Appeal found that ‘a State owes no duty under the Convention to provide support to foreign nationals who are permitted to enter their territory but who are in a position freely to return home’.

When the local authority establishes that a person’s needs must be met by the provision of accommodation and financial support, the failure to provide such support is highly likely to lead to the person suffering a breach of Article 3. When the person is in an excluded group, the local authority is entitled to consider whether the person can reasonably be expected to return to their country of origin to avoid a human rights breach arising from their destitution in the UK (see: Birmingham City Council v Clue [2010] EWCA Civ 460).

Therefore, when a person who is ‘in breach of immigration laws’ qualifies for social services’ support, Schedule 3 requires the local authority to determine whether they can be reasonably expected to return to their country of origin to avoid a breach of human rights arising from their destitution in the UK.

When the local authority concludes that the person can freely return to their country of origin to avoid a breach of Article 3, it will not be required to provide support but may offer assistance with return and ongoing accommodation and financial support whilst travel arrangements are made. The local authority will not be responsible for a breach of human rights if a person is denied support when they could return to their country of origin to avoid destitution in the UK (see: R(AW) v London Borough of Croydon [2007] EWHC Civ 266).

2.2 How does Schedule 3 apply in practice?

The local authority will need to undertake a human rights assessment in order to establish whether there are any barriers preventing return. When a barrier to return is identified, the bar on providing support can be lifted.

A human rights assessment should only be undertaken when the following three tests are met:

The person qualifies for social services’ support by meeting the usual eligibility criteria.
The failure to provide social services’ support, when a person qualifies for this, would leave the person destitute in the UK and at risk of suffering an Article 3 breach.
The person is ‘in breach of immigration laws’ or is in another excluded group.

For more information about these tests, see chapter 3 of this guidance.

When a barrier to return is identified, the bar on providing accommodation and financial support will be lifted and social services’ support can be provided, although this will need to be subject to regular review.

Schedule 3 does not prevent the local authority from completing a needs assessment or providing interim support to meet urgent needs whilst assessments are being carried out. Therefore, in practice, a human rights assessment is usually undertaken to establish whether support can continue to be provided, rather than to determine eligibility for assistance when a person initially requests support. For former looked after children, the human rights assessment will determine whether leaving care can continue to be provided should a young person become Appeal Rights Exhausted (ARE) after they have turned 18.

Schedule 3 does not in itself create a free-standing power to provide support. Therefore, a human rights assessment is not necessary if a person does not qualify for social services’ support. For example, where the local authority has undertaken a needs assessment and concluded that a child is not in need or an adult does not have care and support needs.

Schedule 3 does not apply to all groups of people with no recourse to public funds who may need to access social services’ support if they are destitute or at risk of homelessness. Schedule 3 does not apply to a person who is seeking asylum or who is lawfully resident in the UK, such as a person with leave to remain that is subject to the ‘No Recourse to Public Funds’ (NRPF) condition or pre-settled status granted under the EU Settlement Scheme. When a person is lawfully present, or is seeking asylum, a human rights assessment will not be required and the usual eligibility criteria for social services’ support must be applied.

2.3 Who can undertake the assessment?

There are no statutory requirements that specify who in the local authority can carry out a human rights assessment, so this must be determined by an individual service. Any person responsible for undertaking human rights assessments would need to have a good knowledge of the facts of the case and a sound understanding of how to apply Schedule 3.

The local authority must ensure that assessments are carried out correctly, particularly when there is no specialist worker or team responsible for supporting people with no recourse to public funds, so managerial oversight will be necessary. An example of good practice would be to establish a protocol that sets out who is responsible for undertaking assessments, what support will be available to the officer, and how guidance and oversight is provided, such as by requiring the assessment to be checked and signed off by a team manager, local authority lawyer, or by a multi-disciplinary panel.

2.4 When and how should the assessment be recorded?

When Schedule 3 applies to a person requesting or receiving social services’ support, the local authority must clearly document that it has considered the person’s ability to return to their country of origin and what conclusion has been reached. It is therefore advisable to record the human rights assessment separately to the social care needs assessment, child in need assessment, or care leaver’s pathway plan. The human rights assessment template has been designed as a practical tool to help local authorities record the relevant information that they will need in order to determine whether social services’ support can be withheld or withdrawn.

When it is clear that a person who is ‘in breach of immigration laws’ cannot be expected to leave the UK because a barrier to return has been quickly identified, the local authority may decide not to formally record a human rights assessment to document this. However, a barrier to return, such as an immigration application or appeal, may continue to be in place for several months, or even years. Documenting this in a human rights assessment enables the local authority to identify what action needs to be taken in order to expedite an outcome to an immigration claim, such as by assisting the person to access immigration advice or obtaining updates from the Home Office. This may be particularly important if staff turnover is an issue or a service does not have specialist workers.

Should an immigration claim ultimately not succeed, the local authority will need to progress the human rights assessment to consider return in more detail if no other barriers are identified. Completing a human rights assessment when a person still has a pending immigration claim can therefore provide an opportunity to open up conversations about the possibility of the immigration application or appeal failing, particularly once the person’s claim reaches the appeal stages, and raise awareness of the alternative options the person may have should they become liable to enforced removal.

There is no statutory requirement to complete a human rights assessment within a specific time period. However, the process is usually started when it is identified that the person requesting or receiving social services’ support is ‘in breach of immigration laws’ or is in another excluded group. As a person’s eligibility for social services’ support may take some time to be determined, the template will help to identify what information may need to be gathered in preparation for completing the human rights assessment.

The views of the person applying for or receiving support will need to be recorded within the assessment, as well as their response, should the local authority conclude that support can be withheld or withdrawn on the basis that the person can return to their country of origin to avoid destitution in the UK. When such a conclusion is reached, the person should be provided with a copy of the completed assessment.

It is possible that a person may re-present to the local authority after social services’ support has been withheld or withdrawn following a human rights assessment. In such instances, the assessment would need to be reviewed and updated to take into account any changes to the person’s immigration position and/or personal circumstances.

2.5 How is the template structured?

The human rights assessment template is structured in three parts to enable the local authority to easily identify whether a short assessment is required and when it will be necessary to undertake a more detailed consideration of return:

Part A: Background information
Part B: Barriers to return
Part C: Considering return

Part A requires the local authority to answer the following questions:

Which duty or discretionary power is engaged that requires accommodation and financial support to be provided (i.e. on what basis does the person qualify for support)?
Would the person be destitute in the UK without the provision of social services’ support?
Is the person ‘in breach of immigration laws’ or in another excluded group (as determined by their immigration status)?

For more information about completing Part A, see Chapter 3 of this guidance.

Part B requires the local authority to answer the following questions:

Is there a legal barrier preventing return?
Is there a practical obstacles preventing return and, if so, can this be overcome?

For more information about completing Part B, see Chapter 4 of this guidance.

When a barrier to return is identified in Part B, the human rights assessment can be concluded and it will not be necessary to complete Part C of the template.

It will only be necessary to complete Part C when no barriers to return have been identified and, therefore, the person can reasonably be expected to return to their country of origin.

Part C requires the local authority to answer the following questions:

Has the person made an immigration or asylum claim and, if so, what was the outcome of the Home Office/ appeal decision? Are there relevant matters that have not yet been put before the Home Office?
Does the person require legal advice before return can be considered?
Would return give rise to a breach of Articles 2, 3 or 8 of the European Convention on Human Rights (ECHR), taking account of the facts of the case and available evidence, including decisions made by the Home Office or appeal courts?

For more information about completing Part C, see Chapter 5 of this guidance.

2.6 What are the possible outcomes?

The local authority will reach one of the following three conclusions when a human rights assessment has been completed:

A legal barrier or practical obstacle to return is identified.
No barrier to return is identified but the local authority identifies that the person requires immigration advice about their options before any conclusions about return can be drawn.
No barrier preventing return is identified and the local authority concludes that return will not give rise to a breach of human rights.

When a legal barrier or practical obstacle to return is identified, social services’ support can be provided to prevent a breach of human rights (Article 3) when the person qualifies for this. When support is provided, it will be necessary to regularly review the status of the barrier and to identify what steps may need to be taken when it is reviewed. For example, if the person has an outstanding immigration application or appeal, an update can be requested from the Home Office and/ or the person’s legal representative.

When the local authority identifies that the person requires immigration advice about their options before any conclusions about return can be drawn, social services’ support can be provided to prevent a breach of human rights (Article 3) when the person qualifies for this. The person will need to be signposted to an immigration adviser and the progress of this regularly reviewed. If a claim is submitted, then it will need to be treated as a barrier to return.

It will only be possible to conclude that return will not give rise to a breach of human rights when no barrier to return is identified and an evaluation of the facts of the case has been carried out. This would need to take into account any available evidence, including decisions by the Home Office/ appeal courts or a legal opinion. When a person can return to their country of origin to avoid a breach of human rights arising from their destitution in the UK, there will be no duty to provide social services’ support. Instead, assistance with return can be offered, which may be funded by the Home Office or local authority. The local authority may need to provide time-bound accommodation and financial support if the person intends to return, and must give a reasonable notice period of when this support will end. If the person indicates that they are not intending to take up return, they will need to be provided with appropriate signposting information, such as about how to access Home Office asylum support, local charities, immigration advisers, and Home Office voluntary return.