This chapter provides immigration information to help practitioners establish an appropriate pathway out of destitution for families where the parent is not an EEA national and is not seeking asylum. A sustainable solution to a person’s destitution will often be achieved by obtaining a form of immigration status which will allow recourse to mainstream welfare benefits and housing services.
It is unlawful to provide immigration advice that relates to a person’s specific circumstances unless the adviser is registered with the Office of the Immigration Services Commissioner (OISC), or is exempt from registration, for example, a solicitor registered with the Solicitors Regulation Authority. However, it is important for local authority practitioners to be aware of relevant immigration rules and policies so that they can identify when a person will need to be signposted to an immigration adviser.
Local authority practitioners should advise a person who has applied for, or is receiving, support from social services to inform their legal representative of this, and also that their information will be shared with the Home Office. This will enable the legal representative to advise their client appropriately and update any pending applications where this is necessary.
For more information, see section:
11.1 Making an immigration application
The Immigration Rules set out the categories under which people can apply for leave to enter or remain in the UK, the requirements which need to be met, the length of leave which will be granted and conditions attached to each type of leave.
The majority of people with NRPF who make immigration applications to regularise their status, or extend their current leave to remain, will be doing so on human rights grounds:
- Under the family life rules set out in Appendix FM
- Under the private life rules set out in Part 7
- Outside of the Immigration Rules
In order for such an immigration application to be considered by the Home Office, it needs to be valid and must meet several requirements set out in the Immigration Rules:
- The correct and current version of the application form must be used when this is specified
- The correct fee is paid (unless an exemption or fee waiver applies)
- The Immigration Health Charge is paid (when no exemption applies)
- Evidence of identity and photographs are submitted that meet specified requirements
Applications that do not meet these requirements will not be valid, and will be returned to the applicant without their substantive claim being considered by the Home Office.
It is important for local authorities to be aware of any potential barriers to making an application, as these can cause delays in case resolution for people who are receiving support and are attempting to regularise their stay. The requirements may also lead to presentations to social services for support, for example, when a person fails to successfully make a valid application to extend their leave, becomes an overstayer and subsequently loses access to employment or benefits.
11.1.1 Application fees and exemptions
Immigration fees are revised (and usually increased) in April each year. The current fees and exemptions are set out in the Immigration and Nationality (Fees) Regulations 2018. Applications that are exempt include:
- Asylum or Article 3
- Leave to remain under the Destitution Domestic Violence Concession
- Leave to remain as a victim of domestic violence under paragraph 289A, Appendix FM or Appendix Armed Forces, when the person is destitute
- Most applications made by children who are looked after by a local authority.
- Leave to remain as a stateless person, or as the family member of a stateless person under Part 14
- Discretionary leave when the person has a positive grounds decision as a victim of trafficking or modern day slavery
- Leave as a domestic worker who is the victim of slavery or human trafficking
- Change of conditions application to vary leave to allow recourse to public funds
Most immigration applications therefore incur a fee, including those made under the family or private life rules.
| Application fee for leave to remain under the family/private life rules 2018/19 (per applicant) | |
|---|---|
| Application fee | £1033 |
| Immigration Health Charge | £500 |
| Total | £1533 |
When a person is not exempt from paying an application fee, but they cannot afford the fee, then they will need to find out whether the fee waiver policy applies to them; most people provided with social services’ support are likely to be able to apply for a fee waiver.
11.1.2 Fee waiver policy
When a person cannot afford the application fee then they may be able to apply for a fee waiver in line with the Home Office policy, Fee waiver: Human Rights-based and other specified applications, if they are making one of the following applications for leave to remain:
- 5-year partner route (only where a person is not required to meet the minimum income threshold because their sponsor is in receipt of a particular benefit and so instead must demonstrate that their sponsor can provide adequate maintenance)
- 5-year parent route
- 10-year partner, parent or private life route – where a person claims that refusal of that application for leave to remain would breach their rights under Article 8 (the right to respect for private and family life) of the European Convention on Human Rights (ECHR)
- Where other rights under the ECHR are asserted and this forms the substantive basis of an application
- Extension of discretionary leave that was granted following refusal of asylum or humanitarian protection claim – where a person claims that refusal to grant further leave to remain would breach their ECHR rights
- Extension of discretionary leave for a victim of trafficking or slavery who has already accrued 30 months’ discretionary leave and is applying to extend it for reasons relating to trafficking or slavery
The policy suggests that a fee waiver will be accepted if the person can demonstrate they would be destitute were it not for social services’ support, and that evidence from the local authority will be given significant weight in determining this. However, if this is not clear, it appears that the person must demonstrate that they do not have any disposable income, cannot borrow from friends or family, and that their circumstances are unlikely to change in the immediate future. Caseworkers may contact the local authority when insufficient detail of support has been provided, although this is not a requirement.
A legal representative may request that the local authority supplies a letter detailing the support, length of time it has been provided and why. The financial information on NRPF Connect should be kept up to date as this may be referred to by the Home Office caseworker.
The Home Office has confirmed that the Immigration Health Charge will also be waivered when a fee waiver is accepted, although there is no reference to this in published guidance.
The fee waiver application will need to be made in conjunction with an application for leave to remain, so a person will need to be referred for immigration advice. It is important that a person receiving local authority support seeks advice about applying for a fee waiver because if they pay for their application, they will also need to pay the Immigration Health Charge and they are more likely to have the NRPF condition imposed if their leave to remain application is successful.
11.1.3 Evidence of identity
Paragraph 34(5)(b) of the Immigration Rules requires a person applying for limited or indefinite leave to provide:
‘(i) a valid passport or, if an applicant (except a PBS applicant) does not have a valid passport, a valid national identity card; or
(ii) if the applicant does not have a valid passport or national identity card, their most recent passport or (except a PBS applicant) their most recent national identity card; or
(iii) if the applicant does not have any of the above, a valid travel document.’
Paragraph 34(5)(c) confirms that proof of identity need not be provided when:
‘(i).the applicant’s passport, national identity card or travel document is held by the Home Office at the date of application; or
(ii) the applicant’s passport, nationality identity card or travel document has been permanently lost or stolen and there is no functioning national government to issue a replacement; or
(iii) the applicant’s passport, nationality identity card or travel document has been retained by an employer or other person in circumstances which have led to the applicant being the subject of a positive conclusive grounds decision made by a competent authority under the National Referral Mechanism; or
(iv) the application is for limited leave to enable access to public funds pending an application under paragraph 289A of, or under Part 6 of Appendix Armed Forces or section DVILR of Appendix FM to these Rules; or
(v) the application is made under Part 14 of these Rules for leave as a stateless person or as the family member of a stateless person; or
(vi) the application was made by a person in the UK with refugee leave or humanitarian protection; or
(vii) the applicant provides a good reason beyond their control why they cannot provide proof of their identity.’
Where 34(5)(c)(ii)-(vii) applies, the Home Office may ask the applicant to provide alternative satisfactory evidence of their identity and nationality.
When a person does not have a required document and none of the exceptions apply, this may lead to delays in being able to make an application. The local authority may wish to make the following checks to prevent such delay:
- Find out what documents the person has in their possession and whether they would comply with this requirement
- Raise a query on the NRPF Connect database to find out whether the Home Office is holding any documents and the validity period of these
- Advise the person to take immediate action to apply for replacement documents if they are missing and are not with the Home Office
This information applies to people making immigration applications only. If a person has made, or intends to make, a protection (asylum) claim, then they should seek legal advice from an immigration adviser before making any contact with their national authorities.
11.2 Refusal of leave due to NHS debt
Where a person has been charged for NHS treatment and has a debt of at least £500 or £1000, the Immigration Rules state that such applications ‘will normally’ be refused. This means that the Home Office has the discretion to refuse on this basis and in some instances may not do so. The minimum amounts that could trigger a refusal are set out in the table below.
| NHS debt that may lead to a refusal | |
|---|---|
| Applications under family migration (FM) rules made on/after 24 November 2016 | £500 |
| Applications under FM rules made before 24 November 2016 | £1000 |
| Other immigration application – debt accrued on/after 6 April | £500 |
| Other immigration application – debt accrued between 1 November 2011 and 5 April 2016 | £1000 |
People who have no current immigration permission and people on short-term visit visas will need to pay up front for most NHS hospital treatment and some community services. Treatment that is urgent or immediately necessary, for example, maternity care, must be provided without requiring upfront payment, but will still be charged to the patient.
When a person has received NHS treatment which is subject to charging, they should be advised to inform their legal representative so that this can be properly addressed in any leave to remain application.
For more information, see section:
11.3 Leave to remain with NRPF
The ‘no recourse to public funds’ (NRPF) condition is imposed on most categories of leave to enter or remain. However, the Immigration Rules and a Home Office policy state that recourse to public funds may be granted when:
- the person can demonstrate to the Home Office that they are destitute or will become destitute within 14 days (cannot afford accommodation or to meet their family’s essential living needs);
- there are compelling reasons relating to the welfare of a child whose parent is in receipt of a very low income; or
- other exceptional reasons apply.
This exception only applies to people granted leave to remain in the UK under one of the following categories:
- Partner or parent under Appendix FM (10-year route to settlement)
- Private life under paragraph 276BE or paragraph 276DG of the Immigration Rules (including the 20-year residence rule)
- Outside the rules on the grounds of family or private life
When a person is granted leave to remain with NRPF but information was submitted with their application to the effect that they should have been granted recourse to public funds, then their legal representative may be able to seek a reconsideration of this decision.
If they were destitute, or otherwise met the policy, at the time that the decision was made, but no evidence was submitted to the Home Office to confirm this, they will need to seek legal advice about submitting a change of conditions application to the Home Office to request that their leave to remain is varied so that the NRPF condition is removed.
A change of conditions may also be applied for when a person’s circumstances change at some point after they have been granted leave to remain with NRPF.
Local authority practitioners are not permitted to advise or assist with a change of conditions application because it is unlawful to do so without being registered with the OISC or exempt from registration, so will need to signpost a person for legal advice from an immigration adviser.
To minimise the risk of the NRPF condition being imposed when leave to remain is granted to a parent or child in receipt of section 17 support, local authorities should ensure that:
- the person has sought advice about applying for a fee waiver when they are making their application for leave to remain;
- the person informs their legal representative that they are receiving local authority support, including if they start to receive this after their application has been made;
- any evidence required by their legal representative to support their immigration or change of condition application is provided, for example a letter outlining details of the local authority’s support; and
- the finance page of NRPF Connect is fully updated, including details of any application fees paid for by the local authority.
11.3.1 Next steps after recourse is obtained
Once a person obtains limited leave to remain that confers recourse to public funds, there is no guarantee that they will retain access to benefits when they make further applications. A person can end up becoming NRPF again if they fail to make a valid application when they apply for further leave and as a consequence, become an overstayer, or if they extend their leave and have the NRPF condition imposed when they cannot support themselves solely by working. People who are on a 10-year settlement route will need to renew their leave every 2.5 years. When a person is reliant on benefits, whether wholly or partly due to low income from employment, then the imposition of the NRPF condition could result in their benefits immediately stopping and they may risk losing their accommodation.
In order to reduce the risk of this happening, the person should be made aware of the following points:
- It will be necessary to seek advice from an immigration adviser in good time before they are due to apply to the Home Office to extend their leave.
- If the person received a fee waiver to make their previous application, their circumstances are likely to be different when they reapply for leave and the terms of the policy could be changed by the Home Office during this time; where possible, a person should save up funds for the next application fee and also be aware that fees are usually increased at least once a year in April.
- If a person is granted leave to remain with NRPF they should seek advice immediately from a benefits adviser and from a housing adviser if they are subject to eviction proceedings. They would also need to seek urgent immigration advice to find out if they can request a reconsideration of the NRPF condition or submit a change of conditions application.
11.4 Destitution Domestic Violence Concession
In some instances, a person who has obtained their immigration permission on the basis of having a spouse or partner in the UK may experience a relationship breakdown due to domestic violence, and separate from their partner. They may be able to apply for indefinite leave to remain (ILR) under the domestic violence rule if they have limited leave to enter or remain as the spouse, civil partner, unmarried partner or same-sex partner of a:
- British citizen
- person with settled status, for example ILR or right of abode;or
- member of HM Forces (must be serving or discharged, and must be a British citizen or a person who has served for at least four years).
Legal aid is available for assistance with this type of application.
As leave to remain under the partner routes is usually subject to the NRPF condition, if the person is destitute and intends to apply for ILR under the domestic violence rule, they may apply to have their leave varied under the Destitution Domestic Violence Concession. If successful, they will be granted three months leave with recourse to public funds. Within this timeframe they must submit their ILR application, and their leave will continue to be valid under section 3C of the Immigration Act 1971, until a decision is made on the ILR application.
Even if a person’s spouse or partner leave has already expired, it may still be possible to apply for ILR under the domestic violence rule.
People who have leave to enter or remain as the spouse or partner of a student, points based system worker, refugee or EEA national will not be able to apply for ILR on this basis and will therefore not be able to apply for the concession.
A person who has separated from a partner who has leave to enter or remain as their partner’s dependant will always need to be signposted for immigration advice as a matter of urgency to find out what their options are. If the Home Office is informed or otherwise finds out about the relationship breakdown, the person’s leave to remain could be curtailed to expire within a short time period. Local authorities need to be aware that this is a possible consequence of conducting an immigration status check with the Home Office.
For more information, see section:
11.5 When is a child British?
It is important for local authority practitioners to be able to identify when a child is a British Citizen or may be able to register as a British Citizen by applying to the Home Office in order to correctly exercise duties under section 17 of the Children Act 1989:
- When a parent has a derivative right to reside in the UK under European law as the primary carer of a British child, they will be lawfully present in the UK and are not subject to exclusions from support, so social services will be required to provide assistance if the child is in need.
- In order to comply with the section 17 duty to safeguard and promote the welfare of a child in need, practitioners would need to identify when a parent may need to take steps to regularise their child’s status, which could include seeking legal advice about registering the child as a British Citizen if this appears to be an option.
The British Nationality Act 1981 sets out how a person may acquire British Citizenship at birth and how a child may register as a British Citizen if they have not acquired this nationality at birth. There are two types of registration applications:
- Registration by entitlement, which means that an application should succeed if all the requirements are satisfied.
- Registration by discretion, which means that the Home Office will exercise its discretion on a case by case basis, in accordance with published guidance.
Children age 10 or older will need to satisfy a ‘good character requirement’. The table below sets out when a child will be British and when they may be able to register as British.
For registration applications that are subject to a fee, there is no fee waiver or legal aid available but it may be possible to apply for legal aid exceptional case funding.
The Migrants Resource Centre host the Project for the Registration of Children as British Citizens, which may be able to provide some advice to destitute children who want to find out if they can register as a British Citizen. For more information see:
| How British Citizenship is acquired | Criteria | How to evidence citizenship or apply for registration |
|---|---|---|
| Automatically acquired at birth | Born in UK to a parent who is British or has settled status, e.g. ILR/ EEA permanent right of residence
Exception – this does not apply to a child born prior to 1 July 2006 to a British/settled father who was not married to the mother (see below) |
No application necessary to confirm citizenship
Birth certificate and evidence of British/ settled parent’s nationality usually adequate evidence of citizenship
May apply for a British passport or confirmation from the Home Office using application form NS |
| Registration by entitlement | Born in UK and a parent subsequently becomes British or acquires settled status before child turns 18 | Must apply for registration to the Home Office
Fee: £1012 |
| Registration by entitlement | Born in UK and resident here until age 10 | Must apply for registration to the Home Office
Fee: £1012 |
| Registration by entitlement | Born in UK prior to 1 July 2006 to a British/settled father who was not married to the mother | Must apply for registration to the Home Office
No fee |
| Registration by discretion | Home Office has discretion to register any child as British – see Nationality Instruction Chapter 9 | Must apply for registration to the Home Office
Fee: £1012 |
