A decision to refuse or withdraw support under section 17 of the Children Act 1989 may be made following a child in need and/or human rights assessment. It is good practice for conversations with the family to have already taken place to prepare them for such an outcome and what their options will be, confirming the decision in writing. Any other organisations assisting the family should also be informed of the decision.
In this chapter we suggest good practice that may be followed when ending support for families who:
- Can be referred to mainstream benefits and housing
- May need some advice about steps that can be taking to avoid future re-presentations for support from social services
- Are excluded from support and can return to the parent’s country of origin
10.1 Referring a family onto welfare benefits and housing
When section 17 support is being terminated because there has been a change of circumstances that means that a family can now claim welfare benefits and homelessness assistance, they will need to be given a notice period and support making these claims. Flexibility regarding the notice period may be required to allow for support to continue if there are delays in benefits being issued.
In order to access housing support, families should be referred to local authority housing departments. Where families are being accommodated in private tenancies, the possibility of transferring the existing license agreement to a tenancy could be explored with landlords. This will often be dependent on the landlord’s willingness to take tenants who receive housing benefit, and if the property is in England, the landlord will need to comply with the right to rent requirements.
Note that regulations 3 and 5 of the Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006 were amended on 30 October 2016 to allow for people who have been granted limited leave to remain under the family and private life routes when they have recourse to public funds to be eligible for homelessness assistance and an allocation of social housing in England. Such families can therefore be referred to local authority housing departments for assistance once such leave is granted, and any families previously refused assistance should be re-referred for new eligibility assessments for housing assistance.
10.2 Preventing re-presentations
Local authorities often see families re-present asking for assistance when they had previously received support from social services under section 17 of the Children Act 1989. Re-presentations may occur when a family fails to make a valid application when they apply for further leave, or if they extend their leave and have the NRPF condition imposed when they cannot in fact self-support with income from employment alone. Families on 10-year settlement routes need to renew their leave every 30 months.
When support is terminated on the basis that the parents have been granted leave to remain with recourse to public funds it is important that the family are given advice with a view to preventing such problems:
- The family should seek advice from an immigration adviser in good time before they need to apply to the Home Office to extend their leave.
- If the family 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, families 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.
- Legal representatives should make appropriate representations within their application if a person has grounds to be granted leave to remain with recourse when they extend their leave, otherwise the Home Office is likely to impose the NRPF condition; if this happens, families that are reliant on benefits, whether wholly or partly due to low income from employment, will find that their benefits could stop and may risk losing their accommodation.
- If a family are receiving benefits and are granted further leave to remain with the NRPF condition, they should seek advice immediately from a benefits adviser and from a housing adviser if they are subject to eviction proceedings. They may seek immigration advice to find out if they can request a reconsideration of the NRPF condition or submit a change of conditions application.
For further information see sections:
- 9.1 Making an immigration application
- 9.3 Leave to remain with NRPF
- 12.4 How to find an immigration or asylum legal adviser
10.3 Families excluded from support
When the provision of accommodation and financial support is being refused following a human rights assessment, which has determined that the family can return to the parent’s country of origin, then assistance with return must be offered to the family. This could be provided by the Home Office or local authority.
It will normally be appropriate for the local authority to provide accommodation and financial support to the family whilst return is being arranged. In the case of R (O) v London Borough of Lambeth (2016), the Judge found that the local authority had made ‘sensible, humane and appropriate undertakings’ in agreeing that if the parent signs a formal undertaking in which she accepts that she and her child can be returned to Nigeria, and takes steps to co-operate with the local authority in arranging a facilitated return, her interim accommodation may be provided for a reasonable period pending the return.
Should a parent refuse the offer of assistance with return to their country of origin and remain in the UK when they have no current immigration permission and no legal barrier preventing them from leaving the UK, they would need to be advised of the risks and difficulties of living in the UK unlawfully:
- They will be liable to be removed from the UK by the Home Office.
- They will not have permission to work; working when a person has no immigration permission to do so is now a criminal offence.
- Private landlords will not be able to rent, sub-let to or set up a paying lodging arrangement with a person who has no immigration permission.
It is therefore likely that significant concerns will arise regarding the wellbeing and safety of a child left in this situation. As soon as the local authority is aware that support is likely to be refused or terminated on the basis that the family can return to the parent’s country of origin, it will be important to liaise with the Home Office to ensure that the case is allocated to the family returns team, with a view to further engagement with the family being carried out with regards to voluntary return before enforcement action is progressed.
When the local authority has lawfully determined that the family are free to return to the parent’s country of origin, but the family refuses to do so, the courts have found that any hardship or degradation suffered will be a result of their decision to stay in the country and not as a result of any breach of human rights by the local authority.
If the local authority learns that such a family has moved to another area following the termination of support, it will be necessary to make a referral to Children’s Services in that area, share information about the decision that has been made and inform other agencies involved in supporting the family.
For further information see section:
10.3.1 Home Office funded return
The Home Office offers two options to people who wish to return to their country of origin:
- Voluntary return
- Assisted return
Any person who is living in the UK without immigration permission or has been refused permission to enter or stay in the UK can to undertake a voluntary return. This includes EEA nationals who are not exercising a right to reside. As non-EEA national families should normally qualify for an assisted return (where a financial integration package is provided), this scheme is likely to only be appropriate to use when the local authority is refusing or withdrawing support from an EEA family.
The Home Office will organise and fund the flight, but will expect the family to arrange their own documentation if they do not already have this. The Home Office can normally only provide additional support in obtaining documentation when a person has a vulnerability which means that it would be difficult for them to do this by themselves.
An assisted return involves the Home Office arranging and funding flights, a financial reintegration package and additional support on a case by case basis.
Families will be eligible for an assisted return unless the parent:
- is currently being investigated by the police or detained by the Home Office,
- has been convicted of an immigration offence and given a deportation order,
- has already been given humanitarian protection, indefinite leave to remain or refugee status,
- has been informed that they are a ‘third country case’, or
- is a European Economic Area (EEA) or Swiss national (unless they have been confirmed to be a victim of trafficking).
A financial reintegration package of up to £2000 per eligible person in the family group may be available (for up to two adults and each child under 18; children over 18 returning with the family may be eligible for up to £1500 depending on their circumstances).
The method by which this is provided depends on whether the country of return is part of the European Reintegration Network (ERIN), which currently includes: Afghanistan, Democratic Republic of Congo, Guinea, Iran, Iraq, Morocco, Nigeria, Pakistan, Russian Federation, Somalia and Sri Lanka. More countries will join the ERIN in 2017. Families returning to an ERIN country will receive the first £500 on a card which can be withdrawn as cash in the country of return, and then will receive payments for a specific items/purpose directly from a partner agency administering the programme on return.
Families returning to a country which is not part of the ERIN will receive the full amount on a card which can be withdrawn as cash in the country of return.
The Home Office administers voluntary and assisted returns and although will be able to answer questions about the returns process, does not provide a service that will independent and confidential advice to people who are considering return.
Families will usually only have one opportunity to apply for assisted return and the government website states:
“You can be forced to return to your home country if you withdraw your application or don’t follow the application process.”
Any non-EEA national adult in the family group who undertakes a return (assisted or voluntary) which is funded by the Home Office will be subject to a re-entry ban of two or five years, depending on how long they were in the UK after being issued with a liability to removal notice or becoming appeal rights exhausted. Legal advice should be sought to establish how long the re-entry ban will apply.
Contacting the Home Office
- Home Office returns helpline: 0300 004 0202.
- Email: email@example.com
- EEA nationals should contact their local Immigration Compliance and Enforcement Team
For further information see the government website:
10.3.2 Local authority funded return
Local authorities are provided with a power to fund a family’s return to country of origin where the parents are:
- EEA nationals or have refugee status granted by another EEA state
- Non-EEA nationals and have no current immigration permission
EEA nationals or parents with refugee status granted by another EEA state
The Withholding and Withdrawal of Support (Travel Assistance and Temporary Accommodation) Regulations 2002 provide a power to:
- purchase travel tickets to enable the family to return to their country of origin; and
- provide time-bound interim accommodation pending the return to country of origin, but not cash payments.
Alternatively, national embassies may be able to assist with arranging return for EEA nationals.
Non-EEA nationals and parents with no current immigration permission
Providing travel to enable a family to return to the parent’s country of origin would be an effective response to resolving the family’s destitution when there is no duty to provide support in the UK, and local authorities may use the general power of competence or wellbeing in order to do so.
In England, section 1 of the Localism Act 2011 provides a general power of competence that allows a local authority to do ‘anything that individuals generally may do’. This replaced section 2 of the Local Government Act 2000, in February 2012, which provides a general power to undertake anything that is likely to achieve the promotion or improvement of the economic, social or environmental well-being of their area, unless the authority is prohibited from doing so by other legislation, and is still in force in Wales.