This chapter provides information to help identify an appropriate pathway out of homelessness and assist the person to achieve this when they have been provided with accommodation and financial support.
When accommodation and financial support is provided under the Care Act 2014, or other statutory power, it can take a long time to resolve the person’s situation of homelessness. Adults with care needs receive support for an average 2.7 years and 60% exit support following a grant of leave to remain. Therefore, in order to promote the person’s well-being and reduce costs for the local authority, it will be necessary to work with the person to achieve a sustainable outcome to their homelessness. Local authorities that do not have specialist workers or a no recourse to public funds team will need to be clear about who has responsibility for undertaking assessments, monitoring caseloads, managing the accommodation and supporting people to resolve their immigration issues with the Home Office. These actions are necessary regardless of the legal basis or service under which support is being provided.
13.1 Immigration advice
The provision of immigration advice and services is regulated. It is a criminal offence for a person to provide immigration advice and services to an individual when they are not permitted to do so.
13.1.1 Who can provide immigration advice?
The following people can provide immigration advice:
- An immigration adviser who is registered with the Office of the Immigration Services Commissioner (OISC) or is exempt from registration
- A solicitor who is registered with the Solicitors Regulation Authority (England and Wales), Law Society of Scotland or Law Society of Northern Ireland
- A barrister who is regulated by the Bar Standards Board (England and Wales), Faculty of Advocates (Scotland), or the Bar Council of Northern Ireland
When an adviser is registered with the OISC, they will only be permitted to provide advice at the competency level they are registered at. For example, only a level three adviser can represent a person in their immigration appeal at an Immigration and Asylum Tribunal. For full details about what type of work is permitted at each level, see the OISC, guidance on competence.
It will be necessary to establish a list of local immigration advisers that can be provided to a person who is receiving support. As legal aid is not available for most types of non-asylum immigration matters, this is likely to need to include any free advice providers, such as a law centre or voluntary and community sector service. Local authorities are increasingly funding legal advice services to fill gaps in legal aid provision because access to good quality legal advice is essential to ensure that a person makes the right application and can effectively present their case to the Home Office. Equally, local authorities will find it difficult to implement Schedule 3 of the Nationality, Immigration and Asylum Act 2002 without people first seeking immigration advice to establish whether they have a basis to apply to remain in the UK. See the NRPF Network website for information about how to find an immigration adviser.
13.1.2 What can a person do if they are not an OISC adviser?
Providing general information or signposting a person to a legal representative is not considered to be regulated immigration advice.
Anyone working with people who have no recourse to public funds will need to be able to identify when an individual would need to be signposted to get legal advice from an immigration adviser. Therefore, it is useful to gain a basic awareness of possible immigration options that might apply. If a person is able to overcome immigration-based exclusions through a change in their immigration status, this will lead to better well-being outcomes, such as increased stability in their lives, and the ability to access work and services without restrictions.
When a legal representative is assisting a person to prepare an application, it may be necessary to help them to gather any documents necessary to support the application, as advised by their legal representative. If the person is receiving support from a local authority, their social worker or caseworker may need to provide a letter to confirm details of the local authority’s involvement.
Preparing good quality representations to the Home Office can take several months. However, it is likely to be advantageous for the local authority to allow for the necessary preparation time to give the immigration adviser and the individual every opportunity to present their case effectively, which will increase the chances of the Home Office deciding the case correctly. When poor applications are submitted and refused, the person is likely to experience a lengthy wait for an appeal hearing or may need to start the application process again.
A person should be advised to inform their legal representative if they are receiving local authority support and let them know if their information has been shared with the Home Office through NRPF Connect, where relevant. This will enable the legal representative to advise their client appropriately and update any pending applications where this is necessary. The legal representative may also find it helpful to ask the local authority to chase up the Home Office for updates about a pending application, which can be done through NRPF Connect.
13.1.3 Working with people who lack mental capacity in relation to their immigration matters
It may be particularly challenging for a local authority to resolve dependency on social services’ support when a person lacks the mental capacity to make decisions about their immigration matters. For example, if a person did qualify for care under the Care Act 2014 but they were also ‘in breach of immigration law’ and caught by the exclusion to social services’ support, a lack of mental capacity could be identified as a practical barrier to leaving the UK in the Human Rights Assessment. When a person being cared for is trapped in a position of not having immigration status addressing this with the support of an immigration adviser is in their best interests and must be actively considered.
In their supporting migrants lacking mental capacity in relation to immigration matters guidance, Migrant Organise provides the framework on how to assess mental capacity in relation to immigration matters. The guidance then sets out the steps statutory services can take if a person does lack mental capacity to make immigration decisions.
Both the Care Act 2014 and aftercare responsibilities under Section 117 of the Mental Health Act 1987 allow considerable scope for local authorities to progress and resolve people’s immigration matters. The time and effort required to get the process right will be of longer-term benefit to the person receiving care and will help reduce adult social care expenditure once a person’s right to stay in the UK is formally recognised.
When applications are made with the help of qualified immigration advisers for people with extreme vulnerabilities, including a lack of mental capacity, the Home Office will work to ensure that these matters are urgently addressed through decision-making teams.
13.2 Immigration pathways
There are various different immigration routes that might enable a person to obtain a change in their immigration status that allows them to access public funds (benefits and housing assistance). Examples of such routes include:
- Change of conditions application to request that the NRPF condition is lifted
- Destitution Domestic Violence Concession
- EU Settlement Scheme
- Windrush Scheme
The person’s current immigration status, personal circumstances, and/or residence history will usually determine what application they can make. A person would need to be signposted to an immigration adviser to explore all of their options and for assistance with making an application.
If a person states that they believe they would be at risk of persecution or ill treatment on return to their country of origin, they would need to be signposted to an immigration adviser to find out whether they can claim asylum. Legal aid is available for asylum cases.
If a person expresses a wish to return to their country of origin, they can be signposted to information about the Home Office voluntary returns service or the local authority can fund and facilitate a return. It is always advisable to provide the person with an opportunity to access immigration advice so that they are clear about the implications of return on their ability to return to the UK in the future.
See the NRPF Network website for more information about different immigration routes and voluntary return.
13.3 Access to benefits for EEA nationals
European Economic Area (EEA) nationals entering the UK are subject to the same Immigration Rules as other non-UK citizens. However, some EEA nationals will have residence rights that are documented through the EU Settlement Scheme and will enjoy different entitlements to those that have entered under other Immigration Rules, such as visitors, students, and workers. It will therefore be necessary to establish an EEA national’s immigration status in order to establish whether they will qualify for benefits, and whether they will need to meet a right to reside test in order to do so.
A person will need to meet a right to reside test in order to qualify for means tested benefits and homelessness assistance under Part VII of the Housing Act 1996 if they have:
- Pre-settled status granted under the EU Settlement Scheme
- A pending EU Settlement Scheme application
A person with pre-settled status will usually need to be working or self-employed in order to qualify for benefits. Therefore, a person who is ‘work-ready’ is likely to need signposting to employment organisations to help them find employment. When a person is clearly unable to work due to ill health or having high level care needs, they may not be able to access benefits until they obtain settled status under the EU Settlement Scheme. A person can apply for settled status after they have completed five years’ residence in the UK. They do not need to wait until their pre-settled status is about to expire to apply.
The right to reside test can be complex and there are several grounds on which a person can meet it. When an EEA national is refused benefits, they should always be referred to a welfare rights adviser to find out whether they can challenge this decision.
See the NRPF Network website for more information about benefit entitlement for EEA nationals and how to find a benefits adviser.
13.4 Working with the Home Office
The Home Office is committed to working with local authorities to prioritise decision-making when households are being financially supported at a cost to the taxpayer.
NRPF Connect is the national system to record local authority caseloads, improve decision-making, and inform policy developments. NRPF Connect is operated in partnership between the NRPF Network and the Home Office and currently used by 80 local authorities with social care responsibilities.
Local authorities can use of the NRPF Connect database to support casework practice to obtain immigration status information, gain updates about the progress of outstanding applications, and ensure financially supported cases are being prioritised by the Home Office. Local authorities using NRPF Connect need to ensure data is up-to-date and that information received from the Home Office is acted upon in the best interests of the individual receiving support, including identifying when it is necessary to assist the person to access immigration advice.
A significant proportion of adults with care needs have been supported by their local authority for over three years. Some of these people will be in a position where they have not been able to make a successful application under the Immigration Rules, yet the local authority’s human rights assessment has identified that the person be expected to return to their country of origin due to a practical obstacle, such as ill health, high-level care needs, or mental capacity issues. Such cases need to be raised with the Home Office and flagged to the NRPF Network.
By recording caseloads on NRPF Connect, local authorities will contribute to the national data set that is used as evidence to highlight the challenges people face achieving a sustainable outcome to their homelessness and an exit from local authority support. This data informs the NRPF Network’s policy and funding recommendations for government, as well as operational and policy recommendations for the Home Office. See the NRPF Network website for more information about NRPF Connect.