Barriers to return

This chapter sets out what information will need to be confirmed when Part B of the template is completed. Part B involves identifying whether there is a legal barrier or practical obstacle that means the person cannot be reasonably expected to return to their country of origin. The person’s circumstances in their country of origin do not need to be considered at this stage of the assessment.

4.1 Legal barriers

The human rights assessment must identify any legal barriers to return. The following legal action will usually need to be treated as a barrier to return until the matter is concluded:

An outstanding human rights application.
An outstanding human rights appeal or procedural right to pursue a human rights claim.
Further submissions made by an ARE asylum seeker.
Other legal action, such as court proceedings involving a child.

4.1.1 Outstanding human rights application

An application made to the Home Office that raises human rights grounds must be treated as a legal barrier to return, unless the application is ‘obviously hopeless or abusive’.

Examples of human rights applications include:

An application made under the Immigration Rules on the basis of the person’s family life (Article 8 grounds).
An application made under the Immigration Rules on the basis of the person’s private life (Article 8 grounds).
An application made on the basis that the person cannot return to their country of origin due to medical reasons (raising Article 3 and/or Article 8 grounds).
An application for leave outside the rules.

In Birmingham City Council v Clue, the Court of Appeal held that where a family has a pending application for leave to remain on human rights grounds, the local authority could not refuse assistance under section 17 of the Children Act 1989 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 Court of Appeal was also clear that a local authority must not consider the merits of an immigration application, as it is for the Home Office to decide this. However, the Court found that the local authority is required to be satisfied that the application is not ‘obviously hopeless or abusive’, stating, at paragraph 66 of the judgment, that this would apply to an application ‘which is not an application at all or which is merely a repetition of an application which has already been rejected’.

An outstanding application will usually need to be treated as a legal barrier as it will be rare for a person to be making an immigration application that is ‘obviously hopeless or abusive’ due to the complexities of the Immigration Rules, difficulties accessing legal advice, barriers to the application process, and changing personal circumstances. However, even when the local authority suspects that an application is ‘obviously hopeless or abusive’, it can be very difficult to determine this and advice should be sought from the local authority’s legal department before drawing such a conclusion. Where a person has a history of failed immigration applications, an assumption should not immediately be made that any subsequent application will be repetitive, obviously hopeless, or abusive, as the following factors would need to be considered:

The type of application that has previously been made.
Whether there have been any changes to the person’s circumstances or country of origin situation since the last application was made.
Whether the person made their applications with the assistance of an immigration adviser.
Changes to the Immigration Rules, Home Office policy or immigration case law that did not previously apply and may affect the outcome of the application.

For family households, a pending human rights application that has been made by a child or other member of the household would also need to be treated as a legal barrier. As immigration application fees are very expensive, it can often be the case that a child may make an application separately from their parent(s), who may not be able to afford to apply for everyone in the household at the same time. There could also be instances where a legal representative advises that the parent may have a better chance of succeeding in their claim if their child obtains leave to remain first.

Where the outcome of an application made by a child may have a bearing on the parent’s immigration status, it should be treated as a legal barrier if it gives rise to new and different Article 8 considerations, unless the child’s application is hopeless or abusive (see: OA v London Borough of Camden & Anor [2019] EWHC 2537).

This could apply, for example, if a child makes a registration application to confirm their entitlement to British citizenship and once granted, their parent is able to meet the family life requirements of the Immigration Rules in order to be granted leave to remain.

4.1.2 Outstanding human rights appeals and procedural rights

In KA v Essex County Council [2013] EWHC 43, the Court found that an ongoing procedural right to pursue a human rights claim from within the UK must be treated as a legal barrier to return.

A person with an outstanding appeal will be treated as having a legal barrier until their appeal is finally determined by the courts, which could take several months or even years to reach a conclusion. As the Home Office has the ability to certify a human rights claim that is clearly unfounded, it is unlikely that a pending appeal could ever be said to be ‘obviously hopeless or abusive’. In the majority of cases the local authority would therefore need to wait for the courts to give judgement on an appeal before the human rights assessment can be progressed.

When a person has the right to lodge an in-country appeal following the refusal of a human rights application, they will need to be treated as having a legal barrier until the deadline to lodge the appeal has passed. An appeal to the First-Tier Tribunal (Immigration and Asylum Chamber) must be lodged within 14 days. More information about the appeal process is available on gov.uk.

If an appeal is lodged ‘out of time’, after the given deadline has passed, then it may still be accepted by the courts. In such cases, the appeal should be treated as a legal barrier. If a person has missed the deadline to lodge an appeal then it will be necessary to find out from their legal representative whether they intend to lodge an out of time appeal.

When a person is making a human rights claim, the local authority can only proceed with the human rights assessment when a person becomes ‘Appeal Rights Exhausted’ (ARE) and no further procedural right to pursue their claim. A person will become ARE when one of the following applies:

They do not lodge an appeal and the deadline by which they can do so has passed (either after their initial refusal or at a later stage in the appeal process).
Their asylum or immigration claim is certified so they are only able to pursue an out-of-country right of appeal. This should be specified on the Home Office refusal letter.

Changes since KA v Essex

In KA v Essex County Council, the Court considered the local authority’s obligation to provide support under section 17 of the Children Act 1989 to a family that had been refused leave to remain but had not yet issued with a decision to make removal directions. In this case, the Court found that the local authority was required to provide support whilst the family waited for the Home Office to issue a removal decision. However, KA v Essex cannot be followed to the letter because the Home Office has since made significant changes to appeals and removals processes. Instead, the principles established in Clue v Birmingham City Council and KA v Essex must be followed in line with the removal and appeal processes that are currently implemented by the Home Office.

Currently, a refused human rights claim (rather than a removal decision) will have an in-country right of appeal, unless it is certified as clearly unfounded.

Certification of a human rights claim and out-of-country appeals

The Home Office may certify any asylum or human rights claim on a case-by-case basis. Certified claims will only attract an out-of-country right of appeal, which can only be brought after the person has left the UK following their enforced removal or a voluntary return.

Asylum claims made by people from certain countries will almost certainly be certified, although it cannot be assumed that this will always be the case. It will be rare for a non-asylum human rights claim to be certified. The Home Office guidance on Rights of appeal: Certification of Protection and Human Rights claims under section 94 of the Nationality, Immigration and Asylum Act 2002 (clearly unfounded claims) sets out the current country list as well as giving examples of when asylum and non-protection human rights claims may be certified.

When a person’s claim is certified with an out-of-country right of appeal, they would need to obtain legal advice about whether there are grounds to judicially review the decision. A judicial review must be lodged within three months of the date of the decision. If judicial review action is pending then this would normally need to be treated as a legal barrier to return.

4.1.3 Asylum claims and further submissions

When further submissions are made by an ARE asylum seeker, these would need to be treated as a legal barrier to return, unless the submissions are obviously hopeless or abusive (see: AM v Secretary of State for the Home Department: AS/14/11/32141).

If a person claims asylum, or makes further submissions that are accepted as a fresh asylum application, the human rights assessment should be stopped as the person will no longer be in an excluded group. In such cases, the local authority would need to explore whether Home Office asylum support is available to meet the accommodation needs of a family or adult with care needs who does not require residential care.

4.1.4 Other legal action

A person may be treated as having a legal barrier to return if one of the following circumstances applies to them:

They are involved in criminal or civil proceedings.
They are involved in court proceedings involving a child.
There are difficulties obtaining consent for a child to leave the UK where this needs to be provided by another person with parental responsibility.
They are making an immigration application that does not involve human rights considerations.

When a person is a defendant in criminal proceedings or a party to civil proceedings it is likely that they will be required to remain in the UK whist the trial or legal action is ongoing.

In family cases, ongoing court proceedings regarding a child in the household, such as legal action regarding contact or a care order, would need to be considered as a legal barrier to return. If a parent is not able to participate in family law proceedings, then this is likely to give rise to a breach of Article 8 (the right to a family or private life).

When another person outside of the family household has parental responsibility for a child within the household, then it will be necessary to establish whether requiring the family to return to their country of origin could lead to a breach of child abduction legislation. This can be a complex area of law and guidance will need to be sought from the local authority’s legal department when it is unclear what consent would need to be obtained in order to enable a child to return to their parent’s country of origin.

When it appears that a person is unable to leave the UK because of ongoing legal action, or to remain compliant with child abduction laws, they may need signposting to an immigration adviser to find out whether they are able to apply for leave to remain on that basis.

The majority of people requesting social services’ support who are making immigration applications will be raising human rights grounds. Other types of immigration applications can usually be made from outside of the UK and therefore may not fall under the scope of Birmingham City Council v Clue and KA v Essex. However, for European Economic Area (EEA) nationals who are without lawful status but have an entitlement to apply to the EU Settlement Scheme, it is recommended that their EU Settlement Scheme application is treated as a legal barrier if a human rights assessment is completed. For more information about how Schedule 3 applies to EEA nationals, see chapter 6 of this guidance.

4.2 Practical obstacles

The human rights assessment must identify any practical obstacles that appear to prevent the person from being able to travel to their country of origin and, where possible, set out how these can be overcome.

The following practical obstacles will usually need to be treated as a potential barrier to return and considered within the assessment:

Medical or health needs affecting the person’s ability to travel.
Lack of travel documents where these cannot be obtained.
Lack of funds to arrange a return.
Other practical obstacles, such as Covid-19 related restrictions on international travel.

4.2.1 Medical/ health needs

If a person has a medical condition, disability, or mental health condition, then their ability to travel must be considered and documented in the human rights assessment.

A ‘fit to fly’ opinion from the person’s GP or specialist doctor may be required to confirm whether the person is able to travel and if so, what appropriate arrangements would need to be made to facilitate this. If the person is unable to travel or travel would be very difficult for them to undertake with assistance, then this should be treated as a practical obstacle to return.

The current government guidance (which may be different in England, Wales, Scotland and Northern Ireland) will need to be followed with regards to self-isolation requirements following a close contact or positive test. As the situation regarding Covid-19 remains fluid, the position would need to be regularly reviewed if no barriers are identified and return is being considered.

4.2.2 Travel documents

It is common for a person who is without immigration permission in the UK not to have a current passport or the identity documents they may need to obtain a new passport. In such cases, it will be necessary to establish how these can be obtained and record this in the human rights assessment.

Information about the process for obtaining an identity document or passport can be gathered by making general enquiries to an embassy, consulate, or the Home Office, without disclosing the person’s identity. Details of a person who has previously claimed asylum and is intending to lodge, or has made, further submissions should not be disclosed to their national authorities, unless their legal representative has confirmed that this would not adversely affect their claim.

When a person lacks identity or travel documents, this does not necessarily constitute a practical barrier to return as it will usually be reasonable to expect the person to follow the processes set out by their national authority in order to obtain a travel document. If a person is unable to obtain their own document, the Home Office should also be able to advise if a temporary travel document can be issued to enable return to a particular country.

However, there may be some cases where a person’s lack of travel documentation will need to be treated as an obstacle to return, such as where there is no functioning government in the country of origin, no presence of a national embassy/ consulate in the UK/Europe, or when the person’s nationality is disputed by their national authority. When a person has no means of acquiring a travel document, they would need to be signposted to a legal adviser to find out what their immigration options are.

4.2.3 Funding a return

As a person who qualifies for social services’ support is unlikely to have funds available to arrange their own return, the human rights assessment must document what assistance is available from the Home Office and/or local authority to cover the costs of a return.

Home Office Voluntary Returns Service

The Home Office can assist a person to return voluntarily if one of the following applies to them:

They are living in the UK without immigration permission, such as a person who has overstayed their visa.
They have withdrawn or want to withdraw a pending immigration application.
They have claimed asylum.
They are a confirmed victim of modern slavery.

A person will not be eligible for a voluntary return if one of the following applies:

They are currently being investigated by the police or detained by the Home Office.
They have been given a prison sentence which is 12 months or longer.
They have been convicted of an immigration offence and given a deportation order.
They have been granted humanitarian protection, indefinite leave to remain or refugee status.
They have a Service Providers from Switzerland visa, a Frontier Worker permit, or an S2 Healthcare Visitor visa.
They have been granted settled or pre-settled status under the EU Settlement Scheme or have applied to the EU Settlement Scheme.

When a person qualifies for a voluntary return, the Home Office can organise and fund the flight but will usually expect the person to arrange their own travel documentation if they do not have this. The Home Office may provide additional support in obtaining documentation when a person has a vulnerability and cannot get this by themselves without difficulty.

In some cases, the Home Office can provide up to £3,000 in financial support to help a person on their return. This is provided as a single payment on a card, which can only be used in the country of return. A person may qualify for financial support when one of the following applies:

They are returning to a ‘developing country’, as defined by the Organisation for Economic Co-operation and Development (OECD).
They have been refused asylum.
They are a confirmed victim of modern slavery.
They are returning as a family household that includes a child under 18.
They are under 18 and travelling alone.
They are under 21 and a care leaver.
They are sleeping rough.
They need more help with return due to a medical condition or other reason.

For more details, see the Home Office information about voluntary returns and how to apply.

Local authority return

When the Home Office is unable to arrange a return, this may be funded and organised by a local authority in England using its general power of competence (section 1 Localism Act 2011).

For a person who has refugee status granted by another EEA state, the Withholding and Withdrawal of Support (Travel Assistance and Temporary Accommodation) Regulations 2002 provide the local authority with a power to:

Purchase travel tickets to enable the person to return to their country of origin.
Provide time-bound interim accommodation pending the return to country of origin, but not cash payments.

Covid-19 entry requirements

Any national restrictions relating to Covid-19 that apply in the country of return will need to be identified and documented in the human rights assessment. The person may need to meet testing, vaccination, and/or quarantine requirements in order to be able to enter their country of return. Any costs arising from these requirements will need to be covered by the Home Office or local authority, depending on how return is facilitated. As the situation regarding Covid-19 remains fluid, the position would need to be regularly reviewed if a return is arranged.

Return and future residence rights

Undertaking a voluntary return is likely to affect the person’s ability to return to the UK at a future date. Therefore, any person who indicates a desire to return would need to be given an opportunity to get legal advice so that they are fully aware of the consequences of taking up a return before committing to this. Although the Home Office can answer questions about the voluntary returns process, it does not provide independent advice to people who are considering return.

The following examples demonstrate how a voluntary return or absences from the UK can affect a person’s immigration position:

A person who undertakes a voluntary return that is funded by the Home Office (with or without a reintegration package), 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.

EEA nationals will lose their pre-settled status if they remain outside of the UK for a period of two years or longer. If they intend to apply for settled status, they must not be absent for longer than six months in any 12 month period, although may be permitted to have a single absence of up to 12 months in certain limited circumstances.

4.2.4 Other practical obstacles

Any other practical obstacles must be identified and documented in the human rights assessments, with details of how these can be overcome, where this is possible.

For example, a person could not be expected to return whilst government restrictions were imposed on international travel during the Covid-19 pandemic. Currently, it is possible for people in the UK to undertake international travel but if restrictions are imposed at a future date then these may affect a person’s ability to return. Any government guidance would need to be followed and different rules may apply in England, Wales, Scotland and Northern Ireland.

4.3 Conclusion and next steps

At this stage of the human rights assessment the local authority will need to conclude whether the person can reasonably be expected to return. This decision will depend on whether a legal barrier, or practical obstacle that cannot be overcome, has been identified.

4.3.1 Possible outcomes

If a legal barrier, or practical obstacle that cannot be overcome, is identified, then the bar on providing support will be lifted because the person cannot be expected to avoid a breach of human rights by returning to their country of origin. In such cases, the human rights assessment can be concluded. Part C of the template will not need to be completed.

If no barrier to return is identified, the local authority can conclude at this stage that the person can be reasonably expected to return to their country of origin to avoid a human rights breach arising from their destitution in the UK. In order to consider the impact of return on the individual or family in more detail, Part C of the template will need to be completed.

4.3.2 Next steps when a barrier to return is identified

When a barrier to return is identified, then social services’ support can be provided if the person qualifies for this. The person will need to be advised on what basis social services’ support is being provided and when this could be reviewed.

As immigration claims can be ongoing for several months, or even years, social services’ support may need to be provided for a long time and any barriers to return must be regularly reviewed. It is therefore important to record when regular reviews will need to be undertaken and what will need to be checked during the review.

For example, when a person has a pending immigration application or appeal it will be necessary to regularly request updates from the Home Office about the status of the claim and, in some cases, additional action may be necessary. A person with an outstanding appeal who is unrepresented could be assisted to get legal advice to find out whether in fact they have an alternative option with better prospects of success, such as making a new immigration claim based on their current circumstances. Local authorities using the NRPF Connect database can use the system to request that the Home Office expedites a decision on a longstanding application.

Where a practical obstacle to return is identified that makes return unviable for the foreseeable future, steps will need to be taken to ensure that this insurmountable barrier is formally recognised by the Home Office, otherwise the long-term costs of meeting the person’s accommodation and subsistence needs will unjustifiably fall to the local authority. An example of when such as situation may arise would be where a consultant advises that an adult receiving care will be unable to travel indefinitely due to a serious long-term health condition, but the adult has not been granted leave to remain by the Home Office because they do not meet the high threshold to be granted leave on medical grounds. When social services’ support cannot be withheld or withdrawn on the basis that a person can return, the local authority should assist the person to access immigration advice and raise the case with the Home Office in order to explore the possibility of a grant of leave to remain outside the rules. A grant of leave to remain in such circumstances would be appropriate to avoid the local authority incurring ongoing support costs when a person cannot be expected to leave the UK, is eligible for care and support, but remains ineligible for benefits and mainstream housing assistance.