4.1 Human rights assessment
Paragraph 5 of Schedule 3 of the Nationality, Immigration Asylum Act 2002 prevents local authorities from providing support or assistance under section 17 Children Act 1989 to families where the parent’s nationality or immigration status means that they are in an excluded group, unless such support:
“..is necessary for the purpose of avoiding a breach of a person’s Convention rights or rights under the European Union Treaties.”
The Court of Appeal, in the case of 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.”
For such cases, in addition to a child in need assessment, the local authority must undertake a human rights assessment to establish whether, or to what extent, the family’s circumstances are such that the restriction on providing support or assistance under section 17 Children Act 1989 should be lifted in order to avoid a breach of human rights or European treaty rights. The key issue that must be established is whether the family can return to the parent’s country of origin when the parent is unable to support their family and/or has no immigration permission to remain in the UK.
The human rights assessment must determine whether:
- the family can freely return to the parent’s country of origin;
- return to country of origin would cause a breach of the family’s human rights under the European Convention on Human Rights (ECHR); and
- return to country of origin would cause a breach of the family’s rights under European treaties (applicable to EEA nationals and dependent family members of EEA nationals).
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 family member’s specific circumstances. It is recommended that the human rights assessment is recorded separately from the child in need assessment, as although many considerations will be relevant to both assessments, it is important that the conclusions and reasoning in the human rights assessment are 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 family when the parents are in an excluded group but the assessment also performs other important functions:
- Explores solutions to the family’s destitution in the UK.
- Facilitates an open conversation with the family about all their available options.
- Seeks alternatives to enforced removal by the Home Office.
- Provides transparency in the decision making process.
- Documents why support may be provided to a family when parents are in an excluded group.
- Assists the local authority to identify what action to take in terms of progressing and resolving a case.
4.2 Determining whether the family can freely return
The first stage of the assessment is to identify whether there are any legal or practical barriers that prevent the family’s return to country of origin in order to establish whether return is reasonably practical. If there is a barrier preventing return then it would be perverse for the local authority to make further considerations about the family’s return when this cannot realistically happen.
If support is refused or withdrawn when there is a barrier to return then this may result in the family experiencing enforced destitution, which would be a breach of Article 3 of the European Convention on Human Rights (ECHR). As a result, the family may experience inhuman and degrading treatment. In the case of Limbuela v Secretary of State (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 no legal or practical barrier to return, then the local authority does not have a duty to support a family when they are freely able to return to their country of origin, see: 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 AW v Croydon LBC (2005).
4.2.1 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.
The Court of Appeal case of Birmingham City Council v Clue (2010) held that where the 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, would be compelled to leave the UK if support under section 17 is refused.
Removal and appeal processes have 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”).*||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.**||No longer issued.|
* 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 on non-asylum human rights claims. See the Home Office guidance:
- Certification of Protection and Human Rights claims under section 94 of the Nationality, Immigration and Asylum Act 2002 (clearly unfounded claims)
** 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 is referred to “remove first, appeal later”, meaning that most non-asylum human rights claims are unlikely to be issued with an in-country right of appeal on refusal. However, this provision is currently subject to a phased implementation and does not apply to: people applying for further leave to remain on family or private life grounds when they already have leave to remain; overstayers who are making a claim based on their relationship to a British partner or child; or people making an Article 3 medical claim. However these applications can still be subject to certification under section 94 if they are the claim is “clearly unfounded”. See the Home Office guidance:
Although Home Office processes have changed since KA v Essex was heard, the principles established in that case, and Birmingham City Council v Clue, must still be followed, i.e., support will generally need to be provided to prevent a breach of the family’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. 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 – is it 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 family’s circumstances or situation in the 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 family 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.
The majority of NRPF cases are likely to be resolved by regularisation of immigration status. However, the lack of legal aid for immigration cases and difficulties in making an application mean that local authorities will need to proactively support families 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 families to obtain appropriate legal advice.
For further information see sections:
4.2.2 Practical barriers to return
Practical barriers could include the person’s inability to:
- obtain identity or travel documentation,
- travel due to ill health or a medical condition, or
- travel due to being at late stages of pregnancy or caring for a new born baby.
When such barriers apply they may only be temporary, and it might be appropriate to provide support to the family on a short term basis and assist them to overcome this barrier, for example, by helping to obtain travel documentation.
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 their human rights being breached.
For further information see section:
4.3 Determining whether there would be a breach of human rights
When the local authority is clear that return is reasonably practical because there are no legal or practical barriers that will prevent a family from leaving the UK, then it will need to determine whether the provision of support will be necessary to prevent a breach of the family’s human rights. This means that the local authority would need to consider whether return to country of origin would result in a breach of the family’s human rights.
If a parent has dual nationality, or has the nationality of one country and a right of residency in another country, then return to both countries must be considered. If other members of the household have different nationalities then their ability to comply with immigration requirements of the country of return would need to be considered.
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 the family’s circumstances. The articles of the ECHR listed below are the most relevant, so consideration would need to be given as to whether these apply.
“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.
“(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.
The tribunals of the Immigration and Asylum Chamber must follow the steps set out in the House of Lords case of 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 each family member’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?
“..everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”
Sections 4.3.2-6 will outline how these must be considered within the human rights assessment. In family cases it will always be necessary to consider the best interests of the child.
4.3.1 Best interests of the child
In the case of ZH (Tanzania) v SSHD (2011), which was an appeal against the Home Office’s decision to remove two British Citizen children with their Tanzanian mother from the UK, the Supreme Court held that the ECHR must be interpreted in harmony with the general principles of international law, so provisions set out in the United Nations Convention on the Rights of the Child 1989 were found to be relevant and must be adhered to.
Article 3(1) of the United Nations Convention on the Rights of the Child 1989 states:
“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”
In (ZH) Tanzania the court determined that the best interests of the children must be considered and given paramount weight when determining whether their removal is proportionate under Article 8 ECHR.
This obligation is reflected in section 55 of the Borders, Citizenship and Immigration Act 2009, which requires the Home Office to carry out its functions in a way that takes into account the need to safeguard and promote the welfare of children in the UK, for example when making an immigration decision that involves a child. This duty is set out in the UK Border Agency statutory guidance, Every Child Matters, published in November 2009.
Section 11 of the Children Act 2004 requires local authorities to ensure that their functions are discharged having regard to the need to safeguard and promote the welfare of children. Local authorities must therefore consider the best interests of the child within the human rights assessment. Much of this information will already have been gathered and be documented in the child in need assessment.
UNICEF and UNHCR have produced guidance setting out what states can do to ensure respect for the best interests of unaccompanied and separated children in Europe, which provides a useful reference of the types of considerations and approach to assessing best interests of children: Safe and Sound, published in October 2014.
4.3.2 Protection cases
When a family 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 family 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, when a person has previously been refused asylum.
The principle underpinning the Clue and KA cases is that the local authority must defer to the expertise of the Home Office in making human rights decisions, and therefore 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.
If the family does not make a protection application, then there are several factors a local authority will need to consider within the human rights assessment:
- The family’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 parent 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.
4.3.3 Medical cases
When a member of the household is receiving treatment in the UK for a medical condition, they may claim that they cannot return to the parent’s 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 family 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 test has been followed by the Court of Appeal in the case of GS (India) v Secretary of State for the Home Department (2015) in considering whether return to country of origin would be a breach of Article 3 for six appellants, five of whom (from India, Ghana and Jamaica) suffered from terminal renal failure or end stage chronic kidney disease and received essential life preserving kidney dialysis in the UK. Without dialysis, their life expectancy would be reduced to two to three weeks. The sixth appellant, from the Democratic Republic of Congo, was at an advanced stage of HIV infection, received antiretroviral therapy and other medication, which if withdrawn would lead to his life expectancy reduced to months or a year or two at most. Despite the appellants with kidney disease having no transplant, and no, or no real prospect of continued dialysis in their home country, the Court of Appeal found that removing them to their respective countries would not result in a breach of Article 3. The Court determined that Article 3 would only be engaged in the most exceptional circumstances, i.e., deathbed cases, interpreting the exception outlined in N v SSHD very narrowly. The Supreme Court refused the appellants’ application for permission to appeal this decision in July 2015 because there appeared no reasonable prospect of the Court departing from the position of N v SSHD.
However, 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 ECHR 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 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. Note that this case pre-dates the Court of Appeal’s determination of GS (India) which limits the exception in N to deathbed cases.
The Court of Appeal has found that although the high test for exceptionality in Article 3 cases will apply to children, the threshold for meeting that test may be lower. In SQ (Pakistan) & Anor v Upper Tribunal IAC & Anor (2013), the Court of Appeal considered the case of a child with beta thalassemia, a condition requiring regular blood transfusions and chelation therapy. Very limited treatment was available in Pakistan to the extent that the child’s life expectancy would be until late teens or early twenties whereas the child would have led a normal life in the UK. As the child would not be returning to an early and solitary death in Pakistan, his circumstances did not engage Article 3. However the Court acknowledged that there are circumstances where the threshold would be reached in relation to a child when it would not be reached for an adult, due to the special vulnerability of children in terms of the state’s obligation to protect them from inhuman and degrading treatment.
It may be also argued that there is a breach of Article 8 in medical cases, and immigration applications raising medical grounds may succeed on this basis when they fail to meet the test to engage Article 3.
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.”
The case of Akhalu (health claim: ECHR Article 8) Nigeria (2013) involved a student, who, despite falling ill with kidney failure after entering the UK finished her degree. She received dialysis and later a kidney transplant. The Home Office accepted that she would die within weeks on return to Nigeria as she would not be able to access treatment there. The Tribunal held that when considering Article 8, the countervailing public interest in removal will outweigh the consequences for the health of the claimant due to a disparity of health care in all but a very few rare cases. A decision maker must have regard for all aspects of private life, even if they do not have any bearing on the claimants’ prognosis.
In SQ (Pakistan) the Court of Appeal held that as the best interests of the child must be a primary consideration, a claim from a child would require careful consideration under Article 8. In this case, the child arrived in the UK with the health condition, so although entered lawfully, consideration must be given to whether his arrival as a manifestation of health tourism and in light of all the evidence of the case, whether it would be disproportionate to remove the child.
The High Court found in De Almeida that return to Portugal would be a breach of the claimant’s private life under Article 8, but such interference was not justified by the state due to the relatively small cost saving to be gained from returning him. In this instance the issue in question was the preservation of the economic wellbeing of the UK, rather than the maintenance of immigration control.
In order to determine how health or medical issues may impact on a family’s return there will be a number of factors to consider:
- Previous decisions made by the Home Office and courts.
- Medical confirmation of the family member’s health, prognosis, and the healthcare they are currently receiving.
- 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 the family member. To help establish this the local authority may refer to:
- World Health Organisation (for medical services)
- National embassies
- What support the person currently receives from family or other people in the UK and what such support would be available on return.
- What access to services, housing and income the person would have to ensure they would not experience degrading treatment if they have a prognosis that condition may deteriorate should similar treatment be unavailable.
4.3.4 Family life
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.
The lead immigration case where Article 8 was considered is the Supreme Court case of (ZH) Tanzania v SSHD (2011), regarding the removal of two British Citizen children (aged 12 and nine) with their mother to Tanzania. The Supreme Court’s reasoning in finding that removal would be unlawful sets out the key factors to consider:
- The best interests of the child must be a primary concern; over-emphasis of the mother’s immigration status (a refused asylum seeker who had made three unsuccessful claims using different identities) meant that proper weight was not given to the children’s best interests.
- The question of whether it would be reasonable for the children to relocate with their mother to Tanzania is a factor of secondary importance to the child’s best interests when considering whether return is proportional under Article 8.
- The children, as British Citizens, had rights which they would not be able to enjoy if they were resident in another country, losing the advantages of growing up in the UK, their own language and culture; nationality is a factor in determining where the child’s best interests lie and is also a factor that must be weighed in the balance of the decision as to where the child should live.
- It is necessary to seek the child’s views.
Further guidance about best interest considerations in immigration cases is given by the Court of Appeal in EV (Philippines) & Ors v SSHD (2014), which determined the case of a mother who came to the UK on a work permit but was underpaid by her employer and so further leave had been refused, father and three children, aged 13, 12 and 9 at the time of the appeal, who had been in the UK for three years when the Home Office issued the removal decision. The appeal was unsuccessful and the courts offered the following guidance:
“35. A decision as to what is in the best interests of children will depend on a number of factors such as (a) their age; (b) the length of time that they have been here; (c) how long they have been in education; (c) what stage their education has reached; (d) to what extent they have become distanced from the country to which it is proposed that they return; (e) how renewable their connection with it may be; (f) to what extent they will have linguistic, medical or other difficulties in adapting to life in that country; and (g) the extent to which the course proposed will interfere with their family life or their rights (if they have any) as British citizens.
36. In a sense the tribunal is concerned with how emphatic an answer falls to be given to the question: is it in the best interests of the child to remain? The longer the child has been here, the more advanced (or critical) the stage of his education, the looser his ties with the country in question, and the more deleterious the consequences of his return, the greater the weight that falls into one side of the scales. If it is overwhelmingly in the child’s best interests that he should not return, the need to maintain immigration control may well not tip the balance. By contrast if it is in the child’s best interests to remain, but only on balance (with some factors pointing the other way), the result may be the opposite.”
The best interests of the child need to be a primary consideration when determining whether it would be proportionate to refuse support when this would result in a breach of family life.
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 family group 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 return.
- Where there is identified family life with family members residing in the country of origin, how this is currently maintained.
- When members of the household have different nationalities, whether there are any restrictions that may prevent them from permanently residing in the country of return.
4.3.5 Private life
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.
A child of school age is likely to have a private life so this must be considered. In MK and KN v LB Hackney (2013), the local authority’s conclusion that the family (Jamaican nationals with no immigration permission) could return to Jamaica was found to be unlawful because the local authority had not properly considered the impact of removal on the social and cultural ties which the children enjoyed in the UK when making the Article 8 assessment.
The best interests of the child need to be a primary consideration when determining whether it would be proportionate to refuse support when this would result in a breach of private life.
There will be a number of factors to consider for each family member within the human rights assessment:
- Previous Home Office and court decisions that consider Article 8.
- Age of the child, whether they are in education and what social/cultural ties they may have.
- Length of residence in the UK: an application for leave to remain can be made by a child that has lived in the UK for seven years; an adult age 18-25 who has lived in the UK for over half their life and an adult who has lived in the UK for 20 years. A child born in the UK who has lived here for 10 years or longer will be entitled to register as a British Citizen.
- Whether each family member 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.
4.3.6 Legal proceedings
When a family member 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 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, rather than be provided with accommodation under section 21 of the National Assistance Act 1948 by the local authority. As care proceedings were ongoing, the court also found that 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 court’s determination of the case. The court determined that there would be a breach of the mother’s rights under Article 8 if support 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.
There will be a number of factors to consider within the human rights assessment:
- If a child is subject to care or contact proceedings.
- If a family member is a defendant in criminal proceedings or a party in civil proceedings what requirements are made of them by the court.
4.3.7 Country information
Should the local authority need to refer to information about the family’s country of origin, for example, what welfare provision may be available, there are a number of sources:
- Home Office Country information and guidance reports
- US State Department Human rights reports
- Amnesty International Annual human rights reports
- International Labour Organisation
- IOM Information about return for migrants
- Routes Home (support services in EU countries)
4.4 Determining whether there would be a breach of European Treaty rights
Schedule 3 of the Nationality, Immigration Asylum Act 2002 prevents local authorities from providing support or assistance under section 17 of the Children Act 1989 to European Economic Area (EEA) nationals and their dependants, unless this is necessary to prevent a breach of human rights or rights under the European Treaties.
Having established that there are no legal or practical barriers preventing the family’s return, the first step in determining whether support or assistance is necessary to prevent a breach of the family’s rights under European Treaties is to establish whether the EEA national has the right to reside in the UK under European law, or as the family member of such a person.
The local authority would need to gather information to help establish this:
- Each family member’s length of residence and activities in the UK, e.g. have they studied, worked etc.
- Whether there are other EEA national family members in the UK (or who were previously living in the UK), and what their activities during this time were.
When the local authority establishes that a family member does have the right to reside under European law, it must then consider whether provision of assistance under section 17 is necessary to prevent a breach of that right. In almost all cases where the person has a right to reside, a refusal to provide assistance when the family have no other support options is likely to prevent the person from exercising their right to reside, causing a breach of their European Treaty rights. 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, so support should never be refused to them when there is a child in need in the household. However the situation may be less clear for a family where the parent 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.
When a parent 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.
If the parent does not have the right to reside, or the local authority determines that the provision of support is not necessary to prevent a breach of European treaty rights, the local authority must consider whether the family’s return would breach their human rights, in line with the considerations set out in the previous section of this guidance.
Local authorities will commonly consider whether return is possible for a newly arrived EEA national family when the parent has not obtained work in the UK or established a right to reside. However, when a family has been in the UK for a period of time and/ or one of the child’s parents has undertaken some employment in the UK, it is likely that the parent may have a right to reside and so detailed consideration of the family’s history will be required to establish this.
For further information see sections:
- 4.2 Determining whether the family can freely return
- 5.2 The right to reside
- 5.3 Family members
- 5.4 Benefit eligibility
4.5 Determining whether the child would be in need
In R(M) v Islington LBC (2005), the court determined that the local authority had to be confident that a child would not be in need in their country of origin, if it were to lawfully discharge its duty under section 17 Children Act 1989 by funding travel to the family’s country of return.
In MN and KN v LB Hackney (2013), the judge interpreted this as meaning that section 17 could only be used to fund travel assistance to the country of origin when the local authority is confident that the child would no longer be ‘in need’ in that country. The Judge found that the local authority has the power to fund travel costs under section 2 of the Local Government Act 2000, which the Court of Appeal had held in Grant v Lambeth LBC (2004), after R(M) v Islington LBC had been determined. This meant that when a local authority does not propose to use its powers under section 17 to fund a return the question of whether the child would be in need in the country of origin does not therefore arise.
In practice, when return to country of origin is being considered, the child’s needs, for example, access to education and healthcare, will be considerations that are relevant for determining whether there would be a breach of Article 8 (right to family and private life). It is therefore appropriate for the child’s needs in the country of origin to be addressed within the child in need assessment when the parents are in an excluded group, and this information referenced within the human rights assessment. This will also ensure that any risks on return or safeguarding factors are identified.
There will usually be an expectation that on return to country of origin, the parent will no longer be barred from accessing employment and/or public services, and so the material deprivation which has resulted in the child being in need in the UK will, in the majority of cases, no longer be the case on return. If the family undertake a Home Office funded assisted voluntary return, then the fact that they will be returning with a financial package will also be a relevant consideration in the human rights assessment.
4.6 Concluding the human rights assessment
The human rights assessment must balance the views expressed by the parents and child and the information that is known to the local authority about the country of origin, so that conclusions can clearly be drawn. What is stated by the family should be taken into account in relation to the established facts.
The local authority must have regard for the findings made by the Home Office or courts, particularly if such a decision is recent. However, if the family asserts that since that decision their circumstances have changed, then they would need to be referred to an immigration adviser for advice about their options. The local authority may therefore decide it is necessary to wait for the family to obtain advice before proceeding to refuse or withdraw support, should that otherwise be the outcome of the human rights assessment.
When concluding that accommodation and financial assistance under section 17 of the Children Act 1989 is not required to prevent a breach of human rights, because the family can return to their country of origin, the local authority must be clear in its determination that:
- there are no legal or practical barriers preventing the family from returning/leaving the UK; and
- the provision of support is not necessary to prevent a breach of the family’s human rights or rights under European Treaties because the family can return to the parent’s country of origin.
The assessment must also outline what options the family may be offered in order to prevent a breach of human rights/European Treaty rights, for example:
- Providing accommodation and financial support pending return.
- Method of return and what additional support will be provided.
When the local authority determines that the provision of accommodation and financial assistance under section 17 Children Act 1989 is needed to prevent a breach of the family’s human rights, then support must be provided if the child is assessed as being in need.
For further information see sections: