It is unlawful to provide immigration advice to a person that relates to their specific circumstances unless the adviser is registered with the Office of the Immigration Services Commissioner (OISC), or is exempt from registration, for example, is a solicitor or barrister registered under the appropriate regulatory body. However it is important for local authority practitioners to be aware of relevant immigration requirements and policies so that a family can be properly signposted to an immigration adviser and to ensure that the representative is made aware of any factors that may impact on the family’s claim.
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 that such information will be shared with the Home Office.
9.1 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 the leave.
The majority of families making immigration applications to regularise their status or extend their current leave to remain will be doing so on human rights grounds. This means that they will be making applications:
- under the family life rules set out in Appendix FM,
- under the private life rules set out in Part 7, or
- outside of the Immigration Rules.
In order for such an immigration application to be considered by the Home Office, it needs to be valid in compliance with 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 (when no exemption applies).
- The Immigration Health Charge is paid (when no exemption applies).
Evidence of identity is submitted that meets 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.
Additionally, applications can be refused when the applicant has a debt for NHS treatment of £500 or more.
More information about these requirements is provided in the following sections because it is important for local authorities to be aware of any potential barriers to making an application, which may give rise to more presentations to social services for support (when a person fails to successfully make a valid application to extend their stay and loses access to employment or benefits), and delays in case resolution for families where the parents have no current immigration permission and are attempting to regularise their stay.
9.1.1 Application fees and exemptions
Immigration fees are revised (and usually increased) in April each year. The current fees and exemptions are set out under the Immigration and Nationality (Fees) Regulations 2016. The majority of immigration applications incur a fee although those which are exempt include the following types of applications:
- 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, where the person is destitute
- Most applications made by children who are looked after by a local authority (but not children supported under section 17 of the Children Act 1989)
- Initial period of limited leave to remain as a stateless person, or as the family member of a stateless person, under Part 14
- EC Association Agreement with Turkey
- 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
|Application fee for leave to remain under the family/private life rules (6 April 2017)|
|Immigration Health Charge||£500|
A separate fee must be paid for each family member that is included in the application.
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 families supported by local authorities will be able to apply for a fee waiver.
9.1.2 Fee waiver policy
A family would need to be signposted to an immigration adviser for legal advice as a fee waiver application will need to be made in conjunction with an application for leave to remain.
The policy states that a fee waiver can be applied for when a person is applying for leave to remain on one of the following grounds:
- 10-year partner or parent route under Appendix FM of the Immigration Rules (application form FLR(FP))
- Private life route under paragraph 276ADE(1) of the Immigration Rules (application form FLR(FP))
- Outside of the Immigration Rules on non-Article 8 human rights grounds (application form FLR(O))
The Home Office policy states that applicants in receipt of local authority support may be granted a fee waiver if they can demonstrate that:
- they have adequate accommodation and can meet their essential living needs, but would be rendered destitute by payment of the fee, or
- there are exceptional circumstances relating to their ability to pay the fee.
The fee waiver policy is written to the effect that when a family are provided with accommodation and financial assistance by a local authority, they are deemed to have adequate accommodation and to be able to meet their essential living needs, so the Home Office will scrutinise how this money is spent and request evidence of the financial circumstances, even though the local authority has already established that the family are destitute and, as a result, is providing financial support to meet basic living needs only.
Legal representatives usually require the local authority to supply a letter detailing the support provided and it is advisable that this references that the family’s financial circumstances have already been fully investigated within the child in need assessment. For local authorities using NRPF Connect, any letters provided to a person or their legal representative should be uploaded to the database and details of the financial support accurately recorded.
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.
It is important that families receiving local authority support apply for a fee waiver, where this is possible because if they do not and they pay for their application:
- they will also need to pay the Immigration Health Charge;
- they are likely to have the NRPF condition imposed if their leave to remain application is successful; and
- the local authority will query the source of funds used for application fees and legal advice as part of the child in need assessment under section 17 of the Children Act 1989, although in the absence of other regular and sustainable sources of support, money borrowed or acquired on a one-off basis to make an immigration application should not in itself be taken to draw an adverse conclusion on the family’s eligibility for support.
For more information see the Home Office policy:
9.1.3 Evidence of identity
Rules that apply to applications made before 24 November 2016
Paragraph 34BB of the Immigration Rules requires a person applying for limited or indefinite leave to remain to submit a valid passport, travel document or national identity card with their application, unless one of the following applies:
- They are applying for indefinite leave to remain under the domestic violence rule.
- Their document is held by the Home Office.
- The Home Office considers there is ‘a good reason beyond the control of the applicant’ why the document cannot be provided, for example, when it is held by a person in circumstances which have led the applicant to be accepted as a victim of trafficking under the National Referral Mechanism, or where it has been permanently lost and there is no functioning national government to issue a replacement.
Rules that apply to applications made on or after 24 November 2016
Paragraph 34BB of the Immigration Rules will be replaced by the requirements set out in paragraph 34(5)(b), which states that an applicant must provide:
- 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
- “..a valid passport or, if an applicant (except a PBS applicant) does not have a valid passport, a valid national identity card; or
- 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 where:
- “..the applicant’s passport, national identity card or travel document is held by the Home Office at the date of application; or 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
- 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
- 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
- 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 the application was made by a person in the UK with refugee leave or humanitarian protection; or
- 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.
It therefore appears that as of 24 November 2016, people will be able to submit an application for leave to remain using their most recently expired passport. When a person does not have a required document and none of the exceptions apply, this may lead to delays in the family being able to make an application. Local authority practitioners may wish to make checks to prevent such delay:
- Find out what documents the family have 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 family to take immediate action to apply for replacement documents if they are missing and are not with the Home Office.
- Find out what must be done to obtain national documentation for a non-British child born in the UK, for example, the family may need to register the birth at their national embassy.
9.2 Refusal of leave due to NHS debt
The Home Office has the discretion to refuse applications for leave to remain when a person has accrued a debt of £500 or more which has been acquired because they have been subject to charges for hospital treatment (secondary healthcare).
For people who are making applications under the family life rules set out in Appendix FM of the Immigration Rules, this threshold was lowered from £1000 to £500 on 24 November 2016, so applications decided on or after that date will be subject to the lower threshold.
For people making other types of immigration applications, leave to remain may be refused if they have a debt of £500 that was accrued on or after 6 April 2016. If they had a debt that was accrued between 1 November 2011 and 5 April 2016, they should only be subject to a refusal on this basis if the debt is £1000 or more, although this may not apply if they have since amassed further debt.
This refusal is discretionary, as the Immigration Rules state that the Home Office ‘will normally’ refuse an application and Home Office guidance provides information about when a refusal can be made on this basis:
- NHS bodies notify the Home Office once the debt has been outstanding for two months and there is no agreement to pay by instalments.
- A refusal on this basis can only be made if the NHS debt information has been supplied or confirmed by a NHS body; if checks do not confirm the application has an outstanding NHS debt, they must not be refused even if they have received NHS treatment.
- If the immigration application contains information that NHS treatment may have been received and the applicant was not charged, the caseworker will refer this to the Interventions and Sanctions Directorate in the Home Office.
- Before a refusal is made, the Home Office caseworker must ‘be satisfied that there are no compelling, compassionate circumstances or human rights considerations which would make refusal inappropriate because discretion should be exercised in the person’s favour’.
Note that only secondary healthcare (hospital treatment) is chargeable and people with NRPF are not excluded from receiving this but some will be subject to charging depending on their immigration status. People without any current immigration permission will be required to pay for treatment. People who have accrued NHS debt must inform their legal representative so that this can be properly addressed in their immigration application.
For more information see:
- NRPF Network factsheet: NHS healthcare for migrants with NRPF (England)
- Home Office Modernised Guidance, General grounds for refusal: considering leave to remain
9.3 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, in exceptional circumstances, recourse to public funds may be granted, when:
- the person can demonstrate to the Home Office that they are destitute are 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 of a parent in receipt of a very low income; or
- when 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
- Outside the rules on the grounds of family or private life.
If 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.
The change of conditions application may also be applied for when a person’s circumstances change following their grant of leave to remain with NRPF, which means they would now satisfy the policy to be granted recourse.
Local authority practitioners are not permitted to advise or assist with this type of application because it is unlawful to do so without being registered with the OISC or exempt from registration, so will need to signpost a presenting family, or supported family where leave to remain with NRPF has been granted, 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 family in receipt of section 17 support, local authorities should ensure that:
- the parent has sought advice about applying for a fee waiver when they are making their application for leave to remain;
- the parent 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.
For more information please refer to the following Home Office documents:
9.4 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.
Such a person will always need to be signposted for immigration advice as a matter of urgency, as they will need to find out what their options are, and if the Home Office is informed or otherwise find out about the relationship breakdown, the person’s leave to remain could be curtailed to expire within a short time period.
A person 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 application.
As leave to remain under the partner routes is subject to the NRPF condition, if the person is destitute and is intending 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 time they must submit their ILR application, and their leave will continue to be valid 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, so legal advice should be sought. If the person is not intending to apply for ILR under the domestic violence rule, they will need to seek legal advice to find out what their options are.
There are many people who have permission to stay in the UK based on their relationship to a partner but cannot apply for the Destitution Domestic Violence Concession should their relationship break down due to domestic violence, for example, the spouse or partner of a student, points based system worker, or EEA national. Such a person must be signposted for advice from an immigration adviser about what other immigration options they might have following a relationship breakdown.
9.5 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.
|Registration by entitlement||Born in UK and resident here until age 10.||Must apply for registration to the Home Office.
|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.
|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.