When a person with NRPF requests care and support under the Care Act 2014, the local authority must establish whether they are in an excluded group, which means that they can only be provided with the support or assistance that is necessary to prevent a breach of their human rights or EU treaty rights. This chapter provides guidance on how a local authority will need to make this decision, and will also be relevant when the local authority considers whether to use its discretionary powers to provide housing under section 19(1) of the Care Act or section 1 of the Localism Act 2011.

This chapter applies to the groups set out at Schedule 3 of the Nationality Immigration Asylum Act 2002:

  1. A person who is not currently seeking asylum and is unlawfully present in the UK, for example:
    • Visa overstayer
    • Illegal entrant
    • Refused asylum seeker, where the person claimed asylum in-country (usually at the Asylum Screening Unit in Croydon), rather than at port of entry (for example, at an airport immediately on arrival to the UK before passing through immigration control).
  2. EEA nationals (not UK nationals)
  3. A person granted refugee status by another EEA State
  4. Refused asylum seekers who fail to comply with removal directions, i.e., they have been issued with removal directions that provide a set time and means of leaving the UK and have failed to take this up
  5. Refused 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.

The exclusion applies to a dependant of a person who falls under these groups, for example, the dependent family member of an EEA national.

When a person is not in one of the above groups, then a human rights assessment is not required because eligibility for care and support depends only on the outcome of the Care Act needs assessment.

8.1 Human rights assessment

A person who is in an excluded group can only be provided with support or assistance under the Care Act 2014 where this is necessary for the purpose of avoiding a breach of a person’s rights under the European Convention on Human Rights (ECHR) or European Union (EU) treaty rights.

The Court of Appeal, in the case of R (Kimani) v LB Lambeth (2003), 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.’

The local authority will therefore conduct a human rights assessment to establish whether the person is able to return to their country of origin to avoid remaining destitute and homeless in the UK, therefore preventing a breach of Article 3 of the ECHR. This will involve consideration of whether there are any legal or practical barriers in place which may prevent the person from doing so.

A practical way of approaching the human rights assessment is to consider key questions in a staged process:

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

In order to assist local authorities in documenting the decision making process, we have developed a human rights assessment template, although questions will need to be tailored to each person’s specific circumstances. It is recommended that the human rights assessment is recorded separately from the Care Act needs assessment as the conclusions and reasoning for each must be clearly set out.

The primary purpose of the human rights assessment is to establish the extent to which the local authority is required to support a person who is in an excluded group, but the assessment also performs other important functions:

  • Explores solutions to the person’s destitution in the UK
  • Facilitates an open conversation about all available options
  • Seeks alternatives to enforced removal by the Home Office.
  • Provides transparency in the decision making process
  • Documents why, in many instances, support does need to be provided to people who are in an excluded group
  • Assists the local authority to identify what action to take in terms of progressing and resolving a case when support is provided

8.2 Determining whether a person 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 a person from leaving the UK. If there is a barrier preventing return, then it would be perverse and a misuse of resources for the local authority to make further considerations about the situation for a person on return when this cannot realistically happen. 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.

Where a person is eligible for care and support (including accommodation) under the Care Act and this is not provided when a legal or practical barrier is preventing the person from leaving the UK, then this is likely to result the local authority breaching the person’s right to be free of inhuman and degrading treatment under Article 3 of the ECHR. In the case of Secretary of State v Limbuela (2004), the court found that a decision which compels a person to sleep rough or without shelter and without funds usually amounts to inhuman treatment and therefore engages Article 3 of the ECHR.

When there is clearly no legal or practical barrier to return, then the local authority does not have a duty to support a person when they are freely able to return to their country of origin, in accordance with R (Kimani) v LB Lambeth (2003). The courts have determined that the denial of support in such instances does not constitute a breach of human rights: see R(AW) v Croydon LBC(2005).

8.2.1 Legal barriers to return

An outstanding application or appeal made to the Home Office raising human rights grounds (for example, Article 3 and/or Article 8) would constitute a legal barrier to return. This principle has been established in two cases involving NRPF families who were subject to Schedule 3 and required support under section 17 of the Children Act 1989:

  • The Court of Appeal case of Birmingham City Council v Clue (2010), held that when a family has a pending application for leave to remain on human rights grounds, the local authority cannot refuse assistance under section 17 if this would require the family to leave the UK and therefore forfeit their immigration application, which was of a type that could not be pursued from outside of the UK.
  • The High Court case of KA v Essex County Council (2013) took this principle further, finding that a family who had been refused leave to remain, but not yet issued with a decision to make removal directions (which gave rise to an in-country right of appeal), would be compelled to leave the UK if support under section 17 is refused.

Removal and appeal processes have significantly changed since KA v Essex County Council (2013) was heard, and the effect of these on people who are making human rights applications when they are overstayers is outlined in the table below.

Dates that appeal and removals processes are in force In-country right of appeal when a non-asylum human rights application is made when a person has no leave to remain Removal decision with right of appeal issued
Pre- 6 April 2015 No right of appeal Could be issued at any time following refusal
6 April 2015 to 30 November 2016 Right of appeal (unless the claim is certified as ‘clearly unfounded’) – see note A No longer issued
1 December 2016 onwards Right of appeal depends on basis of claim – some will be certified under “remove first, appeal later” provisions – see note B – or a claim can be certified as clearly unfounded – see note A No longer issued

Notes

A. Under section 94 of the Nationality, Immigration and Asylum Act 2002 a human rights application can be certified as being ‘clearly unfounded’. There is a high threshold for imposing certification on this basis and it is not often used in non-asylum human rights claims.

B. Under section 94B of the Nationality, Immigration and Asylum Act 2002 any human rights claim can be certified unless there is a real risk of serious irreversible harm if the person is removed from the UK before any appeal is concluded. This provision is set out in the Immigration Act 2016, and means that most non-asylum human rights claims are unlikely to be issued with an in-country right of appeal on refusal. These ‘remove first, appeal later’ provisions were found to be unlawful by the Supreme Court and on 3 August 2017 the Home Office withdraw its guidance. It is therefore unclear whether human rights claims are being refused with no in-country right of appeal on this basis and if they are, which types of claim will be affected.

Although Home Office processes have changed since R(KA) v Essex (2013) was heard, the principles established in that case, and Birmingham City Council v Clue (2010), must still be followed, i.e., support will need to be provided to prevent a breach of the person’s human rights whilst there is an ongoing procedural right to pursue a human rights claim from within the UK, for example, an in-country right of appeal. When a claim is certified (under section 94 or 94B), the person will only be able to bring an appeal from outside of the UK, for example, following their enforced removal or voluntary return, and so this will not be a barrier against removal. The local authority would only be able to give further consideration to the question of return once the person has had their claim finally determined, and is either ‘appeal rights exhausted’ or has had their claim certified with no in-country right of appeal. Local authorities using the NRPF Connect database can clarify this with the Home Office by raising a query.

The Court of Appeal in Clue is clear that the local authority cannot step into the shoes of the Home Office to determine the validity of a person’s human rights claim before the Home Office has considered this. However, there is a caveat in Clue, as the Court confirmed that although the local authority must not consider the merits of the immigration application it is required to be satisfied that the application is not ‘obviously hopeless or abusive’.

Several factors would need to be considered when determining whether an application is ‘obviously hopeless or abusive’:

  • The stage at which the claim is being considered – whether it is a pending application or appeal (and the stage it is at in the appeal process
  • Previous decisions made by the Home Office and courts
  • Whether there have been any changes to the person’s circumstances or situation in their country of origin since the last application was made
  • Immigration case law developments
  • Changes to the Immigration Rules or Home Office policy

Only in the clearest of cases will the local authority be able to conclude that a person can return to their country of origin without this causing a breach of their human rights before the Home Office or courts have finally determined a human rights claim. It is highly advisable for a local authority to refer the case to their legal department before making such a decision.

For many people without any current immigration permission, their lack of housing is likely to be resolved by regularisation of immigration status. However, the absence of legal aid for immigration cases and difficulties in making a valid application mean that local authorities will need to proactively support people in obtaining advice by making referrals and building links with local voluntary sector agencies that provide such services. A good awareness of immigration options will enable local authority practitioners to properly support and signpost people to obtain appropriate legal advice.

For more information, see sections:

8.2.2 Practical barriers to return

There may be a clear practical issue that presents a barrier to a person being able to return. Examples would include, the person’s inability to:

  • acquire identity or travel documentation, for example, due to the lack of a national embassy in the UK or functioning government in their country of origin; or
  • travel due to ill health or a medical condition, such as pregnancy.

When such a barrier is temporary, it might be appropriate to provide support on a short term basis and to assist the person to overcome this.

For people who require documentation to be able to travel then their national embassy should be able to explain how they can obtain this or this issue may be addressed if they return with assistance from the Home Office Voluntary Returns Service.

When a medical practitioner provides confirmation that a person is fit to travel, their health needs would need further consideration in order to establish whether, despite this need, they are able to return without this giving rise to a human rights breach

8.3 Determining a breach of human rights

Where the local authority is clear that return is reasonably practicable because there are no barriers that will prevent a person from leaving the UK, then it will need to determine whether the provision of support will be necessary to prevent a breach of the person’s human rights, and, therefore, whether return to country of origin would result in a breach of human rights.

The European Convention on Human Rights (ECHR) sets out fundamental rights that signatory states must adhere to. These rights have been incorporated into UK law under the Human Rights Act 1998.

For local authorities, when determining whether the exclusions to social care support apply, it is likely that only certain articles of the ECHR will need to be considered, but this will depend on a person’s circumstances. The articles of the ECHR listed below are the most relevant and this section sets out how they may be considered within a human rights assessment.

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 or to preserve the economic well-being of the country.

The tribunals of the Immigration and Asylum Chamber must follow the steps set out in the House of Lords case of R(Razgar) v SSHD (2004) in order to establish whether refusal of an immigration application would breach a person’s rights under Article 8. If a local authority refuses or withdraws support then it is generally accepted that this would be necessary in order to protect the economic well-being of the country, which is a legitimate public end. However, in order to reach such a conclusion, the local authority must consider the questions set out in Razgar:

  • Would the refusal/withdrawal of support amount to interference by the local authority with the exercise of the person’s right to respect for their private or family life?
  • If so, will such interference have consequences of such gravity as potentially to engage the operation of Article 8?
  • Is such interference proportionate to the legitimate public end sought to be achieved?

Article 6

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

8.3.1 Protection cases

When a person states that they cannot return to their country of origin because they will be at risk of persecution, torture, or inhuman or degrading treatment, then return could engage Article 3 of the ECHR. The person must be referred for legal advice to establish whether they can make an application to the Home Office to assert this claim. This is usually done by claiming asylum, or making a fresh claim for asylum if they have previously been refused.

The local authority must have regard to determinations by the Home Office and courts. It is therefore unlikely that the local authority would make a different conclusion regarding risk on return when the Home Office or courts have made a recent finding on this.

There are several factors a local authority will need to consider within the human rights assessment:

  • The person’s immigration history, i.e. on what basis did they come to the UK, and what applications have been made since arrival
  • Previous decisions made by the Home Office and courts
  • Whether the person is from a country on the designated list of states; if they were to make an asylum or human rights protection claim this would normally be certified as clearly unfounded and therefore not awarded an in-country right of appeal
  • When advice from an immigration adviser was last sought and whether further advice is required, for example, about claiming asylum or making a fresh asylum claim

8.3.2 Medical cases

When a person is receiving treatment in the UK for a medical condition, they may claim that they cannot return to their country of origin because they will be deprived of the type or level of medical treatment that they are receiving in the UK. This issue has been considered by the Courts in the context of whether the removal of such a person from the UK engages Article 3 and/or Article 8.

The person must be referred for legal advice to find out if they can assert this claim to the Home Office as a basis of remaining in the UK. Usually they would need to complete an application form and submit this to the Home Office with supporting evidence.

However, the threshold for being granted leave to remain on medical grounds alone is very high. The leading case is N v Secretary of State for the Home Department (2005), in which the House of Lords held that the Secretary of State’s decision to return a Ugandan woman with AIDS did not breach her Article 3 rights, even though she could live for decades on treatment in the UK but would most likely die within a matter of months if returned to Uganda. Baroness Hale stated:

‘The test in this sort of case, is whether the applicant’s illness has reached such a critical stage (i.e. he is dying) that it would be inhuman treatment to deprive him of the care which he is currently receiving and send him home to an early death unless there is care available there to enable him to meet that fate with dignity..

There may, of course, be other exceptional cases, with other extreme facts, where the humanitarian considerations are equally compelling.'

This means that even when the medical care a person would receive in their country of origin is less than what they require and can access in the UK, return would only breach the person’s human rights if there is insufficient care to enable them to die with dignity.

In 2017, the European Court of Human Rights provided some guidance on the health and social circumstances which would meet the test set out in N, in a case of a person in Belgium who had multiple health issues including TB and Leukaemia, which extends the scope in which Article 3 may be engaged. The court stated:

‘… that the “other very exceptional cases” within the meaning of the judgment in N v the United Kingdom (§43) which may raise an issue under Article 3 should be understood to refer to situations involving the removal of a seriously ill person in which substantial grounds have been shown for believing that he or she, 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.’

In an adult social care case, De Almeida v Royal Borough of Kensington and Chelsea (2012), the High Court found that there would be a breach of Article 3 if the Portuguese national in question, who was terminally ill with AIDS and also suffered from depression and skin cancer, was refused accommodation under section 21 National Assistance Act 1948 (pre-dating the Care Act 2014) and returned to Portugal. It was found that Mr De Almeida was a very exceptional case, as referenced in N: 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, with him facing delay and difficulty in obtaining accommodation and benefits, whilst being away from his existing support network of friends and healthcare professionals.

It will also be necessary to consider whether return would result in a breach of Article 8 in medical cases. The High Court also found in De Almeida that return to Portugal would be a breach of the claimant’s private life under Article 8, in terms of his physical and psychological integrity. 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, he would not be able to access the immediate support which he needed on return. Such a breach was not justified due to the relatively small cost saving to be gained from returning him.

In the case of MM (Zimbabwe) v SSHD (2012), the Court of Appeal provided guidance in a deportation case regarding a Zimbabwean national, who was receiving medication for a serious psychotic illness, about when Article 8 may be engaged in medical cases:

‘The only cases I can foresee where the absence of adequate medical treatment in the country to which a person is to be deported will be relevant to Article 8, is where it is an additional factor to be weighed in the balance, with other factors which by themselves engage Article 8. Suppose, in this case, the appellant had established firm family ties in this country, then the availability of continuing medical treatment here, coupled with his dependence on the family here for support, together establish ‘private life’ under Article 8. That conclusion would not involve a comparison between medical facilities here and those in Zimbabwe. Such a finding would not offend the principle expressed above that the United Kingdom is under no Convention obligation to provide medical treatment here when it is not available in the country to which the appellant is to be deported.'

In order to determine how health or medical issues may impact on a person’s return there will be a number of factors to consider:

  • Previous decisions made by the Home Office and courts on a medical claim
  • Medical confirmation of the person’s condition, prognosis, and the healthcare they are currently receiving and require
  • What treatment would be available in the country of origin – note that there does not need to be parity, and it may not even need to be accessible. To help establish this the local authority may refer to:
  • What support the person currently receives from family or other people in the UK and whether this or other support would be available on return
  • What access to services, housing and income the person would have in their country of origin when their medical condition deteriorates, if this is the expected consequence of the withdrawal of the medical care they are receiving in the UK

8.3.3 Family and private life

As well as relationships between direct family members, 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 an individual’s circumstances.

Private life is the right of a person to live their own life with such personal privacy as is reasonable in a democratic society, taking into account the rights and freedoms of others. Examples would be respect for an individual’s sexuality or the right to control information that is disseminated about a person’s private life. Any interference with a person’s body or the way that the person lives their life is likely to affect their right to respect for their private life under Article 8.

There will be a number of factors to consider within the human rights assessment:

  • Previous Home Office and court decisions that consider Article 8
  • Family life that exists in the UK
  • Whether each family member will preserve their family life with the person that is returning
  • Where there is identified family life with family members that will remain in the UK, and how this would be maintained on the person’s return
  • Where there is identified family life with family members residing in the country of origin, how this is currently maintained
  • Length of residence in the UK: note that there are specific
    Immigration Rules under which an application for leave to remain can be made by an adult age 18-25 who has lived in the UK for over half their life or an adult who has lived in the UK for 20 years, but people who don’t meet these residence requirements may still be able to successfully assert that return would breach their private life
  • Whether the person can reasonably be expected to establish a meaningful level of existence in their country of origin, i.e. whether they can work or study; what services exist and their ability to access these; any support that is available from family members to do these things etc.

8.3.4 Legal proceedings

When a person is a defendant in criminal proceedings or a party in civil proceedings then Article 6 may be engaged and it is likely that the person will be required to remain in the UK whist the trial or proceedings are pending.

In proceedings involving children, the local authority must consider whether return would result in a breach of Article 8. In the case of R(PB) v Haringey (2006), a mother was found to have a family life with her four children who were in care, through regular contact, which would be interfered with should she be required to return to her country of origin, Jamaica. As care proceedings were ongoing, return would mean that the mother would be unable to participate in these, including crucial social work assessments which would have an effect on the determination of the case. The court determined that there would be a breach of Article 8 if support under section 21 of the National Assistance Act 1948 was refused on the basis that she could return to Jamaica and the local authority had failed to consider these aspects of the case adequately.

8.3.5 Country information

Should the local authority need to refer to information about the person’s country of origin, for example, what welfare provision may be available, there are a number of sources:

8.4 Determining a breach of EU treaty rights

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

  1. Whether person has the right to reside in the UK under European law, through their own activities or as the family member of an EEA national, considering:
    • the person’s length of residence and activities in the UK, e.g. have they studied, worked etc.; and
    • whether there are other EEA national family members in the UK, (or who were previously living in the UK), what their activities during this time were, and whether the person is living with them or otherwise dependent on them.
  2. When a person does have a right to reside, consider whether support is necessary to prevent a breach of the person’s rights under the EU treaties, i.e., would the person be able to exercise their right to reside if care and support is not provided?

In almost all cases when the person 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 the person (and possibly their family member) from exercising their right to reside in the UK, resulting in a breach of their EU treaty rights. The situation may be less clear when the person is an EEA jobseeker, which is a right to reside that can usually only be maintained for three months, and consideration must be given as to whether they must be provided with assistance to enjoy their right to seek work in the UK.

Additionally, EEA workers and their family members must not be discriminated against and must be provided with same level of assistance as a British citizen, due to the equal treatment clause of the free movement directive, so support should never be refused when an EEA worker or family member of an EEA worker has eligible care and support needs.

When a person does have the right to reside, then it will be necessary to check whether this means that they would be eligible for welfare benefits and housing. For example, the family member of an EEA worker will usually be eligible for welfare benefits, or may be able to receive a pension from abroad. This can then be taken into account in the financial assessment to establish whether they must contribute anything towards their care.

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 person’s return would breach their human rights, in line with the considerations set out in the previous section of this guidance.

Case example
Mr X is a German national working in the UK. His elderly mother, who is also German, comes to the UK to live with him following the death of her husband. She requires assistance to get dressed, wash herself and prepare meals but Mr X works full time and cannot always help with this. She is assessed by the local authority has having eligible care and support needs, but a care package can only be provided if this is necessary to prevent a breach of her EU treaty rights or human rights. Mr X’s mother has the right to reside in the UK under European law as she is the family member of a worker. The local authority must therefore meet her care and support needs as failing to do so would mean that either she would be unable to stay in the UK or Mr X may be prevented from working if he has to give this up to care for his mother, resulting in a breach of their free movement rights under EU law. As the family member of an EEA worker, Mr X’s mother may be entitled to benefits so the local authority would need to refer her to a welfare rights adviser to find out what she can claim. She will also need to be financially assessed to establish whether she must contribute towards the cost of her care.

For more information, see section:

8.5 Concluding the human rights assessment

The human rights assessment must balance the views expressed by the person requesting support and the information that is known to the local authority about the country of origin, in order to draw clear conclusions.

The courts have been clear that it is the role of the Home Office, rather than the local authority in determining whether a person should be granted leave to remain in the UK on human rights grounds.

Therefore, the local authority will need to have regard to the determinations of the Home Office and courts, and provide good reasons if departing from the stated conclusions. This is an unlikely position for the local authority to take following a recent final decision on an asylum or immigration claim, but there will be instances where the local authority may not be able to conclude its human rights assessment unless the person seeks legal advice and it is clear that they have no further grounds to raise that the Home Office needs to consider. For example, where a person asserts that since their last Home Office/court decision their circumstances have changed, then they would need to be signposted to an immigration adviser for advice about their options. When it is clear from previous decisions and/or legal advice received that a person has no further grounds for pursing an application for leave to remain, the human rights assessment will need to make reference to this.

When concluding that the provision of care and support under the Care Act 2014 is not required because a person can return to their country of origin to avoid a breach of their 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 person may be offered in order to prevent a breach of their 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

When the local authority determines that the provision of care and support under the Care Act is necessary to prevent a breach of the person’s human rights or EU treaty rights, then support must be provided when the Care Act duty under section 18(1) is engaged, and the case regularly reviewed.