Immigration Act 2016 changes to asylum and local authority support

1.  Overview of changes and impacts

The UK government intends to reduce the availability of Home Office support for people seeking asylum who become appeal rights exhausted (ARE) and change the legislative basis under which councils in England can provide support to families and care leavers without lawful status, including those who become ARE after an unsuccessful asylum claim.

The changes to Home Office and local authority support are already legislated for in schedules 11 and 12 of the Immigration Act 2016 (IA 2016), respectively. Further detail as to how the government intends to implement these provisions is set out in the consultation: Family Returns: Reforming Asylum Support and Enforcing Family Returns (pdf).

These provisions are not yet in force and it is unclear exactly when they will be implemented, as some operational details are subject to consultation.

This guidance provides councils with information about the changes as we understand them, what aspects are being consulted on, and the likely implications for local government. We will keep this guidance updated to reflect ongoing developments.

1.1 Summary of changes

1.1.1 Overview of IA 2016 measures

The changes to asylum support are likely to result in:

• Reduced availability of Home Office support for appeal rights exhausted (ARE) asylum-seekers (adults and families)
• The transfer of responsibility for supporting some ARE asylum-seeking families from the Home Office to local government (and health and social care trusts in Northern Ireland)

The changes to local authority support for families and care leavers will require councils in England to:

• Operate a two-tier system by providing accommodation and financial support to families without lawful status under a new legislative framework set by the Home Office, rather than under child welfare legislation
• Provide some care leavers (aged 18+) who become ARE without lawful status with ongoing support under existing leaving care legislation and others with more limited support under a new legislative framework set by the Home Office
• Withdraw all leaving care assistance and support from care leavers (aged 18+) at the point they become ARE where the young person can access Home Office support on the basis of having a ‘genuine obstacle to leaving the UK’

Councils in England will also be prohibited from funding higher education course fees for some care leavers.

1.1.2 Home Office asylum support (UK wide)

Asylum-seeking families with a child under 18 will have their section 95 support withdrawn 90 days after becoming appeal rights exhausted.

Section 4 asylum support will be abolished and replaced by section 95A support.

Section 95A asylum support will only be available when a person or family can establish that they have a genuine obstacle to leaving the UK within 21 days (for adults) or 90 days (for families) of becoming appeal rights exhausted.

A person who makes further submissions for a fresh asylum claim that are still pending after a set period, or who has been granted permission to apply for a judicial review of a decision to refuse their further submissions, will be able to access section 95 support any time after becoming appeal rights exhausted.

For more information about the asylum support changes, see chapter 2.

1.1.3 Local authority support for families (England)

Councils will be required to provide accommodation and financial support to families without lawful status when they meet criteria under a new legal framework set by the Home Office, rather than under section 17 of the Children Act 1989 (‘section 17’): paragraph 10A of schedule 3 of the Nationality, Immigration and Asylum Act 2002 (‘paragraph 10A’).

Paragraph 10A support can be provided when a family is destitute and:

• Has an outstanding article 8 (family or private life) application or appeal
• Is cooperating with arrangements to leave the UK, or
• When it is necessary to safeguard and promote the welfare of a child (as determined in line with regulations and Home Office guidance

Under section 17, councils can meet a child’s additional welfare needs that are not related to destitution and can continue to provide accommodation and financial support to families with leave to remain.

For more information about the changes to local authority support, see chapter 3.

1.1.4 Local authority support for care leavers (England)

When a care leaver (aged 18+) becomes ARE, or is otherwise without lawful status, councils can only provide ongoing leaving care support under the Children Act if the young person has:

• Made further submissions for a fresh asylum claim that are still pending after a set period
• Been granted permission to apply for a judicial review of a decision to refuse their further submissions
• A pending first article 8 application or appeal against the refusal of a first article 8 application

If the young person does not qualify for ongoing leaving care support and assistance, they may be able to access accommodation and financial support from:

• The Home Office if they meet the criteria for section 95A asylum support
• The local authority when they meet criteria specified under a new legislative framework set by the Home Office: paragraph 10B of Schedule 3 of the Nationality, Immigration and Asylum Act 2002 (‘paragraph 10B’)

Paragraph 10B support can be provided when the young person is destitute and:

• Has an outstanding article 8 (family or private life) application or appeal, or
• The local authority is ‘satisfied that that support needs to be provided’ (as determined in line with regulations and Home Office guidance)

The local authority will also be required to ‘keep in touch’ with a young person who is supported under paragraph 10B with a view to supporting the young person’s return.

Councils will be prevented from funding tuition fees for a young person who is receiving leaving care support and assistance under the Children Act when they have:

• Limited leave to enter or remain
• A pending application for leave to remain
• A pending asylum claim or appeal
• Pending further submissions that have not been determined within a set period, or a pending judicial review against the refusal of further submissions

For more information about the changes to local authority support, see chapter 4.

1.2 What will not change

1.2.1 UK wide

Section 95 support will continue to be provided by the Home Office to destitute adults and families whilst their initial asylum claim or appeal is pending.

Adults with care needs who are without lawful status in the UK will continue to be supported under relevant social care legislation, subject to there being a barrier to return, as established through a human rights assessment.

1.2.2 England

Councils can continue to provide accommodation and financial support under section 17 of the Children Act to other families with no recourse to public funds, including families with leave to remain.

Councils will be able to meet any additional welfare needs of a child, such as needs relating to a disability, under section 17, regardless of the family’s immigration status.

Children who have been looked after by the council for at least 13 weeks before turning 18 can continue to receive full support under the leaving care provisions of the Children Act if their asylum claim is still pending when they turn 18 or they have obtained refugee status or another type of leave.

1.2.3 Scotland, Wales, and Northern Ireland

The legislative basis for providing support to families or care leavers without lawful status will not change, although the IA 2016 provides the UK government with a power to extend the changes that apply to England to the devolved nations.

Social workers in Scotland, Wales and Northern Ireland will continue to undertake human rights assessments to determine whether a family or former looked after child (aged 18+) can be provided with support under child welfare legislation after becoming appeal rights exhausted.

Practitioners in Scotland, Wales and Northern Ireland should note that the UK government has not yet clarified when a young person can access section 95A support if they are ARE at the time their leaving care or aftercare support ends.

1.3 Why the changes are being implemented now

In the family returns consultation, the government has provided some indication as to why it is now proceeding to implement schedules 11 and 12 of the IA 2016:

The current support framework has allowed families with no lawful basis to remain in the UK with continued access to publicly funded support, sometimes indefinitely. This has contributed to a system where the expectation to depart is often undermined, presenting unreasonable cost and complexities for both Government and local authorities to bear.

As of February 2026, around a third of all failed asylum seekers receiving support were part of a family group. The reforms set out in this consultation document aim to bring consistency and clarity to this system and to incentivise families to engage with the returns process. The UK will continue to take its international obligations and statutory duties seriously which includes not pushing families without lawful status into hardship or destitution. It is right that those families who are destitute and face genuine barriers to leaving will continue to receive support while those who have no such barriers will be expected to actively engage with the returns process and take steps toward departure from the UK.

With regards to the local authority support changes, the government states:

The intention is not to remove all forms of support, but to introduce a new and simplified form of support that may be made available by local authorities in England to certain migrants who have no legal status, including families, for the purposes of meeting their needs.

1.4 Implications for councils

Over the last decade, the NRPF Network has worked with councils across the UK to evidence the costs and challenges of supporting residents with no recourse to public funds. This evidence has informed our asks of the UK government to provide funding and to clearly define these important ‘safety-net’ duties, which are considered broadly workable, within social care statutory guidance. Instead, the implementation of significant legislative changes will create further cost and practice challenges for councils.

1.4.1 Asylum support changes

Reducing the availability of Home Office support for adults and families who become ARE following an unsuccessful asylum claim is likely to lead to increased homelessness and destitution. This may lead to more people who are ARE engaging with adult social care and homelessness services across the UK, but, most significantly, will transfer the responsibility for supporting some ARE asylum-seeking families from central to local government without any accompanying funding.

The full impact of supporting asylum-seeking families who become ARE is currently unclear, but could be significant as:

• The government has indicated that asylum-seeking families who are already ARE at the time the changes are implemented will have their section 95 Home Office support terminated but will need to amend primary legislation to remove the transitional protections set out in the IA 2016
• We do not know what the circumstances are of the asylum-seeking families who are ARE and currently supported by the Home Office in terms of how long they have been supported for already, how many have further applications pending, or what work the Home Office has already done to engage with families about their return options or help them to access legal advice
• It is unclear whether late applications for section 95A Home Office support will be permitted for certain groups, and which groups would be able to apply outside of the 90-day grace period, as the government is consulting on these questions
• It is unclear what level of engagement the Home Office intends to undertake with families to address their options during the 90-day grace period and how effective this will be in encouraging take-up of voluntary return, particularly where support is being withdrawn from families that have been accommodated by the Home Office for several years

1.4.2 Local authority support changes

The transfer of support from central to local government for supporting asylum-seeking families who are ARE comes at a time when councils already incur significant costs as a result of supporting families, care leavers, and adults with care needs who have no recourse to public funds – a spend of at least £94 million in 2024-25.

Introducing new legislative frameworks based on Home Office-set criteria for supporting families and care leavers without lawful status in England, will add further complexity to established areas of practice that are centred on safeguarding the welfare of children, keeping families together, and providing effective transitions to adulthood for care leavers.

The changes create practical challenges for councils, may give rise to additional safeguarding risks that will need to be managed, and increase local government’s dependency on timely information and prompt decision-making from the Home Office.

Supporting families and care leavers with no recourse to public funds under two different legislative schemes is likely to create practical challenges in terms of:

• Understanding a new system involving different eligibility criteria and assessment process
• Duplication where families are supported under paragraph 10A but child welfare needs must also be met through social care assessment and intervention, or where child welfare needs must be identified when considering condition E
• Maintaining continuity for families and young people who move in and out of the different support systems as their immigration status changes

The shift from a child-centred approach to primarily immigration-focused eligibility criteria may give rise to safeguarding risks if:

• Child welfare needs are not identified in assessments under the new framework, particularly where families may have been living in the UK without legal status for a number of years
• Families, children in care, and care leavers go missing or disengage with their local authority
• Children are left homeless because families do not meet the criteria for support from the Home Office or local authority but remain in the UK – a reality that is not addressed by implementing a new legislative scheme

Councils will have limited scope for applying their own discretion when implementing the new legislative frameworks and must follow guidance set by the Home Office to decide whether a family or care leaver qualifies for support, yet will hold all of the risk in terms of owning this decision and meeting support costs.

Although councils will no longer need to undertake human rights assessments, similar considerations regarding a family or care leaver’s ability to return will need to be made to establish whether the criteria under the new frameworks are met, with councils becoming even more reliant on the Home Office to provide timely information to inform their decisions.

With families currently supported under section 17 for an average period of 1.5 years, it is likely that families and care leavers will need to be supported under the new legislative frameworks for similarly lengthy periods, unless the Home Office takes steps to prevent claims from being held up in casework backlogs. Challenges accessing good quality, free legal advice also remain unaddressed.

Councils will need to ensure that oversight is provided to effectively implement the new legislation and manage support costs, which may be particularly challenging for councils that currently do not have a dedicated response to supporting families with no recourse to public funds.

1.5 What happens next

The family returns consultation runs from 5 March to 28 May 2026. It has been sent to a range of stakeholders, and we understand that responses will be accepted from individual councils.

Part one of the consultation sets out the government’s plans for implementing the IA 2016 changes, with consultation questions intended to finalise some details in the regulations and guidance.

Part two of the consultation focuses on the use of force on children when removing families from the UK.

The NRPF Network will be responding to part one of the consultation and will be working with local government partners to address some of the issues that are likely to arise as a result of the changes.

After the government publishes its response to the consultation, regulations will need to be made that set out further detail of the new asylum and local authority support schemes. Government guidance will also be produced for Home Office and local authority staff. The government will also need to amend primary legislation if it removes existing transitional protections.

2.  Home Office support for ARE asylum-seekers

The government intends to change the support that is available from the Home Office for single adults, families with a child under 18, and adult families who become appeal rights exhausted (ARE) following an unsuccessful asylum claim.

The changes to Home Office asylum support are set out in schedule 11 of the the Immigration Act 2016 (‘IA 2016’), with further details provided by the government in the family returns consultation (pdf).

These changes are not yet in force and some operational details are currently under consultation. We will keep this information updated to reflect further developments.

Councils can also refer to the comprehensive overview of the asylum support changes (pdf) provided by the Asylum Support Appeals Project.

2.1 Current support arrangements

2.1.1 Support for people with a pending asylum claim

The Home Office provides support under section 95 of the Immigration and Asylum Act 1999 (‘section 95’) to destitute adults and families when their initial asylum application or appeal against a refused is pending.

Temporary support under section 98 of the Immigration and Asylum Act 1999 (‘section 98’) is available whilst an application for section 95 support is being considered by the Home Office.

When the IA 2016 is implemented, there will be no change to the support provided to people with a pending asylum claim or appeal, although the government is tightening access to section 95 support.

2.1.2 Support for ARE asylum-seekers

Adults who become appeal rights exhausted (ARE) following an unsuccessful asylum claim currently have their section 95 support terminated 21 days after receiving their decision or final appeal determination.

Asylum-seeking families continue to receive section 95 support if there is a child under 18 in the household at the time they became ARE.

Support is available under section 4 of the Immigration and Asylum Act 1999 (‘section 4’) to any ARE asylum-seeker who is destitute when one of the following criteria applies:

• They are taking all reasonable steps to leave the UK
• They are unable to leave the UK due to physical impediment or other medical reason
• They have no safe route of return
• They have been granted permission for a judicial review of a decision in relation to their asylum claim
• They require support to avoid a breach of their human rights (this will usually apply if they have made further submissions to the Home Office for a fresh asylum claim)

Families can access section 4 support (rather than section 95 support) if their child was born after the parent(s) became appeal rights exhausted. Section 4 support can be applied for at any time after a person has become appeal rights exhausted.

When section 4 support is refused or withdrawn, there is a right of appeal.

2.2 What will change

2.2.1 When section 95 support will end (grace period)

Once a person becomes ARE, their section 95 support will continue for a ‘grace period’, during which time they are expected to arrange to leave the UK or to make an application for section 95A support.

The grace period will be:

• 21 days for adults and adult family groups
• 90 days for families with a child under 18

In the consultation, the government states:

During this time, we plan to work with failed asylum-seeker families to help them understand their options and identify any obstacle preventing their departure from the UK. If the Home Office has evidence that a family is unable to leave the UK within the 90 day “grace period” because of a genuine obstacle, they will be placed on section 95A support.

The government is consulting on what actions a Home Office caseworker should take ‘to ensure children’s welfare when considering discontinuation of support for ARE asylum-seeking families’, including whether a referral to children’s services and/or safeguarding assessment should be undertaken.

The government has not clarified:

• What the grace period will be for families who are already ARE and receiving section 95 support when the IA 2016 is implemented (see ‘transitional arrangements’)
• The period in which a former unaccompanied asylum-seeking child will be able to apply for section 95A support if they become ARE whilst they are supported by their local authority as a care leaver (aged 18+)

Any grace period implemented for former unaccompanied asylum-seeking children (aged 18+) who were looked after by children’s social care may need to be different across the four nations, as changes are being made to leaving care support in England, which will not apply in Scotland, Wales, and Northern Ireland.

2.2.2 Section 95A Support for people who have a ‘genuine obstacle to return’

Section 4 will be repealed and will be replaced with section 95A of the Immigration and Asylum Act 1999 (‘section 95A’).

Section 95A support will be available to all ARE asylum-seekers, including families and young people (aged 18+) leaving local authority care.

However, an application for section 95A support can only be made during the grace period. The government is consulting on whether, and on what basis, late applications should be accepted. It suggests that reasons for late applications could be health reasons, being detained by the police, and not being notified about applying for section 95A support.

Interim support under section 98A may be provided by the Home Office to ARE asylum-seekers who are waiting for a decision on their application for section 95A support.

There will be no right of appeal to challenge a refusal of section 95A support.

Support can be provided under section 95A when a person who is ARE is destitute and faces a ‘genuine obstacle to leaving the UK’.

A genuine obstacle to return will be defined in regulations, which are being consulted on. In the consultation, the government has set out its proposed definition of a genuine obstacle, and what conditions must be met for section 95A support to continue.

It defines a genuine obstacle as existing where an individual is:

• Unable to leave the UK by reason of a physical impediment to travel or for some other medical reason (which must be supported by such medical evidence as is reasonably required)

• Unable to obtain a travel document to facilitate departure from the UK despite having taken all reasonable steps to do so

• Unable to leave the UK because, in the opinion of the Secretary of State, there is currently no viable route of return available

• Unable to leave the UK for some other reason which, in the opinion of the Secretary of State, means the person should be allowed exceptionally to remain for the time being in the UK

It also stats that the following factors will not amount to a genuine obstacle to leaving the UK:

• The fact that the individual may be receiving ongoing medical treatment in the UK

• The unavailability, or possible unavailability, of medical treatment in the country to which the person is to return

• The undesirability or inadvisability of leaving the UK for medical reasons

The continued provision of section 95A support will be subject to the person taking all reasonable steps to leave the UK or place themselves in a position where they are able to leave the UK – this may include complying with attempts to obtain a travel document to facilitate their departure.

2.2.3 Section 95 Support for people who make further submissions or apply for judicial review

Eligibility for section 95 support will be extended to a person (aged 18+) who is ARE and has:

• Made further submissions relating to their asylum claim that have been recorded but not determined within a set time period
• Been granted permission to apply for a judicial review of the rejection of their further submissions

Section 95 support can be applied for on this basis at any time after a person becomes ARE. Interim support under section 98 will also be available to people applying for section 95 on this basis.

2.2.4 Transitional arrangements

The government states:

We intend to introduce legislation to enable this new system to be applied to failed asylum seekers already in the system.

Transitional arrangements currently set out in the IA 2016 enable section 4 support, or section 95 support for ARE families, to continue for people that are already accommodated or have a pending support application or appeal at the time schedule 11 is implemented. It appears that the government is intending to remove these protections and is consulting on measures to manage the transition for people currently receiving section 4 or ARE families receiving section 95 support. However, the transitional measures can only be removed through an amendment to primary legislation, which would need to be passed by parliament.

The government has not provided any information about the number of individuals and families currently receiving Home Office support who would may have their Home Office support withdrawn, should the transitional protections be removed.

2.2.5 Gaps in Home Office support for ARE asylum-seekers

It appears that there may be people who will not qualify for support from the Home Office when they are ARE and have a barrier to return in place. This is primarily because section 95A support will only be available during a short ‘grace period’ of 21 days (for adults) or 90 days (for families) after becoming ARE, although the Home Office may decide to accept late applications from some groups outside of the grace period.

For those who establish a barrier to return during the grace period, it is unclear what the Home Office will consider to be exceptional circumstances for the purpose of awarding section 95A support when other criteria are not met.

When Home Office support is unavailable to a person or family who becomes ARE:

• Some adults may be able to access Home Office support for people on immigration bail (schedule 10 support)
• Families in England may qualify for support from their local council under a new legislative framework (paragraph 10A)
• Families in Scotland, Wales and Northern Ireland may qualify for support from their  local council or health and social care trust under child welfare legislation, subject to having a barrier to return, as established through a human rights assessment
• Pregnant women may be able to access support from adult social care, where a duty or power under relevant social care legislation is engaged 

The reduction in availability of Home Office support could result in responsibility for supporting asylum-seeking families who become ARE transferring from the Home Office to councils (and health and social care trusts in Northern Ireland) in a significant number of cases.

3.  Local authority support for families (England)

The government intends to change the legislative framework under which councils in England can provide accommodation and financial support to families who are without lawful status in the UK, including those who have become appeal rights exhausted (ARE) following an unsuccessful asylum claim.

The changes to local authority support are set out in schedule 12 of the Immigration Act 2016 (‘IA 2016’), with further details provided by the government in the  family returns consultation (pdf).

These changes are not yet in force and some operational details are currently under consultation. We will keep this information updated to reflect further developments.

The changes only apply to councils in England. The legislative framework for supporting families without lawful status who are living in Scotland, Wales, or Northern Ireland will stay the same. However, the IA 2016 includes a power to extend the measures set out in schedule 12 to Scotland, Wales, and Northern Ireland.

3.1 Current support arrangements

3.1.1 Supporting families under section 17

Councils in England can provide accommodation and financial support under section 17 of the Children Act 1989 (‘section 17’) to families with no recourse to public funds, including those without lawful status in the UK, where there is a child in need. For example, a child will be a ‘child in need’ if the child is disabled, is homeless or living in unsuitable accommodation, or the parent has insufficient income to meet the child’s basic needs. Eligibility for support is determined through a holistic child in need assessment undertaken in line with statutory guidance.

3.1.2 Support for asylum-seeking families

The Home Office is responsible for supporting asylum-seeking families under section 95 of the Immigration and Asylum Act 1999 (‘section 95’) whilst the family’s initial asylum claim, or appeal, is pending.

Section 122 of the Immigration and Asylum Act 1999 prevents councils from providing accommodation and financial support under section 17 of the Children Act to asylum-seeking families who qualify for support under section 95.

However, section 17 support can be provided to asylum-seeking families where this is required on a short-term basis to safeguard a child from destitution, such as whilst a transfer to Home Office support is being arranged.

3.1.3 Supporting families who are without lawful status

Section 17 support can be provided when a parent is ‘in breach of immigration laws’, but this will be conditional on the outcome of a human rights assessment that establishes whether the family can reasonably be expected to avoid destitution by returning to their country of origin.

The provision of section 17 support will be subject to a human rights assessment when a parent has:

• Overstayed their visa
• Become appeal rights exhausted (ARE) following an unsuccessful in-country asylum or immigration claim
• Entered illegally and never regularised their immigration status

When a parent is ‘in breach of immigration laws’, schedule 3 of the Nationality, Immigration and Asylum Act 2002 (‘schedule 3’) places a bar on the provision of accommodation and financial support under section 17, unless support is necessary to prevent a breach of human rights. In practice this means that support under section 17 can be withheld when there are no legal or practical barrier preventing a family from returning to their country of origin to avoid destitution in the UK.

Therefore, schedule 3 requires the council to undertake a human rights assessment that specifically considers the family’s ability to return by identifying whether there are any legal barriers or practical obstacles preventing them from leaving the UK and whether there are any outstanding matters that need to be put before the Home Office.

Examples of a barrier to return include:

• A pending article 8 (family or private life) immigration application or appeal, which is not ‘obviously hopeless or abusive’
• Pending judicial review action against a Home Office decision
• Other pending legal action, such as involvement in a family or criminal court case
• Being unfit to travel due to pregnancy or other health-related reasons

When a barrier to return is identified, the human rights assessment will usually be straightforward and brief. For example, confirming that a family has a pending family life application through NRPF Connect would enable the council to conclude the human rights assessment on the basis that there is a barrier to return. When a barrier to return is identified, support under section 17 can be provided to the family, subject to review.

When no barrier to return is identified, the council can withhold or withdraw support on the basis that the family can reasonably be expected to return to their country of origin to avoid a breach of human rights that may arise from their destitution in the UK.

In such cases, local authority practitioners are not required to undertake a complex analysis to determine whether a family would be at risk of a potential human rights breach on return. Instead, the council must have regard to findings made by the Home Office or appeal courts regarding risk on return or other potential human rights breaches.

If no such findings have been made, the council would usually need to pause the human rights assessment and assist the family to access legal advice to establish whether they can make an immigration or asylum claim, so that any outstanding issues can be properly determined by the Home Office. Support under section 17 can continue whilst any further application is being considered. If the family do not have grounds to remain in the UK, they can be supported to return to their country of origin.

3.2 Changes to support for families who are without lawful status

The IA 2016 introduces a new statutory framework for providing accommodation and financial support to families without lawful status: paragraph 10A of schedule 3 of the Nationality Immigration and Asylum Act 2002 (‘paragraph 10A’).

Paragraph 10A will apply to families who overstay their visa or are otherwise without lawful status, as well as asylum-seeking families who become ARE and do not qualify for Home Office support.

Councils will be prohibited from providing accommodation and financial support under section 17 to a family without lawful status when:

• The family is supported under paragraph 10A or
• There are reasonable grounds for believing that such support can be provided under paragraph 10A

However, councils can still provide assistance under section 17 to meet any additional child welfare needs that are unrelated to destitution.

Families who have leave to remain that is subject to a ‘no recourse to public funds’ condition will continue to be able to access accommodation and financial support under section 17.

3.2.1 Eligibility for paragraph 10A support

A family can be provided with support under paragraph 10A when they:

• Are destitute
• Have a dependent child
• Are not receiving, have applied for, or potentially be eligible for section 95A Home Office support for ARE asylum seekers, and
• Meet one of conditions A to E

Conditions A-E:

1. They have made a non-asylum application (of a kind specified in regulations) to the Home Office which has not been withdrawn or determined
2. They are in time to lodge an in-country appeal against the refusal of a non-asylum application
3. They have an appeal against the refusal of a non-asylum application pending
4. They are appeal rights exhausted and have not failed to cooperate with arrangements that would enable them to leave the UK
5. The provision of support is necessary to safeguard and promote the welfare of a dependent child

Destitution will be assessed in line with the definition used by the Home Office in asylum support applications.

Regulations will specify that a ‘non-asylum application’ is an application for leave to remain based on article 8 of the European Convention on Human Rights (family or private life grounds) and is not, in the opinion of the Home Office, made on a vexatious basis or wholly without merit. The government is consulting on whether only applications made on article 8 grounds should enable ARE asylum-seeking families to qualify for support under paragraph 10A (although note that paragraph 10A also applies to families that have overstayed their visa or are otherwise without lawful status). 

Councils will need to refer to regulations and any guidance issued by the Home Office to establish whether condition E applies. The government has provided more information about how councils should apply condition E in the consultation. When deciding whether condition E applies, it states:

[Councils] must take into account:

• The fact that there is no general obligation on a local authority to provide accommodation for individuals without immigration status who intentionally make themselves destitute by refusing to leave the UK when there is no obstacle to their departure
• Whether, in the opinion of the Secretary of State, there is a genuine obstacle to leaving the UK [in line with how this is considered for section 95A applications]

[Councils] must not take into account:

• Whether a child would be in need in the country they are returning to, if a family has no genuine obstacle to leaving the UK

• The receipt of ongoing medical treatment in the UK

• The unavailability, or possibly unavailability, of medical treatment in the country to which the person is required to return

• The undesirability or inadvisability of leaving the UK for medical reasons

The factors that must or must not be taken into account when deciding whether condition E is met are under consultation.

Although condition E refers to the provision of support being ‘necessary to safeguard and promote the welfare of a dependent child’, the considerations set by the Home Office are focused on whether or not the family has an obstacle to return. Therefore, it is unclear whether an assessment of the child’s welfare needs will also be required and it appears that there will be little scope for councils to apply their own expertise and discretion in deciding whether condition E applies.

The council will not be required to undertake a human rights assessment in order to determine whether support can be provided under paragraph 10A.

3.2.2 Supporting ARE asylum-seeking families under paragraph 10A

When an ARE asylum-seeking family has their Home Office support terminated or requests assistance at a later date, the council will need to consider whether they qualify for support under paragraph 10A.

Table outlining which condition(s) the local authority will need to consider when assessing an ARE asylum-seeking family for paragraph 10A support

ARE asylum-seeking family’s circumstances	Paragraph 10A condition
A pending Article 8 (family or private life) application or appeal which the Home Office determines is not ‘made on a vexatious basis or wholly without merit’	A, B or C depending on the status of their application or appeal
A ‘genuine obstacle to leaving the UK’ that is established after section 95 Home Office support ends (90 days after becoming ARE)	D – if ‘has not failed to cooperate with arrangements that would enable them to leave the UK’ or E – support is necessary to safeguard and promote the welfare of a child dependant
Made further submissions for a fresh asylum claim and the set period has not passed	E – support is necessary to safeguard and promote the welfare of a child dependant
Undertaking Judicial Review action with regards to their asylum claim but have not yet been granted permission	E – support is necessary to safeguard and promote the welfare of a child dependant
None of the above apply	E – support is necessary to safeguard and promote the welfare of a dependant child

3.2.3 Interim support

A council will be able to provide support to a family on an interim basis whilst it is deciding whether support can be provided under paragraph 10A.

3.2.4 What support can be provided

When a family qualifies for support under paragraph 10A, the council can only provide:

• Accommodation
• Subsistence in kind, cash or vouchers

Any other services required to meet a child’s welfare needs, such as those relating to a disability, would need to be provided under section 17 of the Children Act.

In some cases, the council would need to make an eligibility decision under paragraph 10A as well as undertaking a child in need assessment to determine whether any services under section 17 are required.

3.2.5 Transitional arrangements for families already receiving section 17 support

The government does not state anything in the consultation about any transitional provisions for families without lawful status who are already receiving section 17 support when the IA 2016 changes are brought into force.

However, during the passage of the IA 2016 through parliament, the government at the time confirmed that the provisions would only apply to new applicants for support.

3.3 What will not change

The Home Office will continue to be responsible for supporting asylum-seeking families under section 95, and will also support families who become ARE and have pending further submissions that have not been decided within a set period or a pending judicial review of a refusal of further submissions.

Councils will continue to be able to provide accommodation and financial support under section 17 of the Children Act to families who are at risk of homelessness or destitution when the parent:

• Has leave to remain, including pre-settled status
• Is seeking asylum (for a temporary period whilst Home Office support is accessed)
• Is otherwise lawfully present

Councils will also be able to assess and provide services under section 17 to meet the needs of any child with a disability, or needs in addition to requiring accommodation and financial support, regardless of the immigration status of the child or their parents.

Therefore, children who are accommodated with their families under paragraph 10A can be provided with any additional services or assistance under section 17 to meet any needs that are not related to destitution.

3.4 A two-tier system

Since the IA 2016 became law, there has been an increase in the proportion of families with leave to remain being supported by local authorities. Families with leave to remain will continue to be supported under section 17 of the Children Act when schedule 12 is implemented. In 2024-25, 40% of families receiving local authority support (just over 1,100) had leave to remain with NRPF or pre-settled status.

However, it is likely that a significant number of families with no recourse to public funds will fall to be considered for support under paragraph 10A, rather than section 17, as:

• In 2024-25, 39% of families receiving local authority support (just under 1,100) were without lawful status and had no asylum claim
• A substantial number of asylum-seeking families who become ARE may qualify for under paragraph 10A when they are not eligible for support from the Home Office

Therefore, the introduction of paragraph 10A creates a two-tier support system, which gives rise to practice and safeguarding challenges that councils will need to manage.

4.  Local authority support for care leavers (England)

The government intends to change the legislative framework under which councils in England can provide accommodation and financial support to some care leavers who have turned 18 and are without lawful status in the UK, including those who have become appeal rights exhausted (ARE) following an unsuccessful asylum claim. Councils in England will also be limited in the assistance they can provide to some care leavers who want to pursue higher education.

The changes to local authority support are set out in schedule 12 of the Immigration Act 2016 (‘IA 2016’), with further details provided by the government in the  family returns consultation (pdf).

These changes are not yet in force and some operational details are currently under consultation. We will keep this information updated to reflect further developments.

The changes only apply to councils in England. The legislative framework for supporting care leavers without lawful status who are living in Scotland, Wales, or Northern Ireland will stay the same. However, the IA 2016 includes a power to extend the measures set out in schedule 12 to Scotland, Wales, and Northern Ireland.

4.1 Current support arrangements

4.1.1 Leaving care provisions of the Children Act 1989

‘Full’ leaving care support

A child who has been looked after by a council under section 20 of the Children Act 1989 for at least 13 weeks from the age of 14 can be provided with support and assistance under the leaving care provisions of the Children Act after they turn 18 and until they are aged 21 or 25, in order to support their transition to adulthood.

The leaving care provisions of the Children Act include:

• Keeping in touch and the provision of a personal adviser, pathway plan and assistance to meet any welfare needs until age 21 (section 23C)
• Assistance to pursue further education and training until age 25 (section 23CA)
• Staying put with foster carers until age 21 (section 23CZA)
• Personal adviser assistance & pathway plan from age 21 to 25 (section 23CZB)

When a young person has no recourse to public funds at the time they turn 18, the council will be required to provide them with accommodation and financial support until they turn 21 or 25 if they are on a course of education or training.

The council cannot refer a young person to the Home Office for accommodation and financial support whilst leaving care duties apply, even if the criteria for asylum support as an adult is met. For example, accommodation and financial support will need to continue to be provided by the council to a young person whose asylum claim is still pending after they turn 18.

Leaving care support for qualifying care leavers

A child who has been looked after for less than 13 weeks before they turn 18 (a ‘qualifying care leaver’) can be provided with:

• Advice and assistance (section 24A)
• Assistance to pursue further education and training until age 25 (section 24B)

Leaving care assistance for qualifying care leavers does not usually include the provision of accommodation and financial support, although this can be provided in exceptional circumstances or where it is connected to being on a course of education or training.

Tuition fee grants

A council will be required to meet a care leaver’s expenses connected with education or training up until the young person turns 25, where educational needs have been identified in their pathway plan. This can include providing a grant to cover tuition fees, which are often charged to non-UK nationals at the higher overseas student rate.

The council can consider the impact of the young person’s immigration status on their ability to complete a course when determining whether assistance to meet educational needs is to be provided.

4.1.2 Support for care leavers without lawful status

Support and assistance under the leaving care provisions of the Children Act can be provided when a young person is without lawful status, but this will be conditional on the outcome of a human rights assessment that establishes whether the care leaver can reasonably be expected to avoid destitution by returning to their country of origin.

The provision of leaving care support and assistance will be subject to a human rights assessment when a young person is aged 18+ and:

• Becomes appeal rights exhausted (ARE) after an unsuccessful asylum claim
• Become appeal rights exhausted (ARE) following an unsuccessful immigration claim
• Entered the UK as a child and has not obtained further leave to remain
• Was born in the UK but has not obtained leave to remain or British citizenship

When a young person is without lawful status in the UK, schedule 3 of the Nationality, Immigration and Asylum Act 2002 (‘schedule 3’) places a bar on the provision of support and assistance under the leaving care provisions of the Children Act where there is no legal or practical barrier preventing the young person from returning to their country of origin to avoid destitution in the UK.

Schedule 3 requires the council to undertake a human rights assessment that specifically considers the young person’s ability to return. The human rights assessment involves identifying whether there are any legal barriers or practical obstacles preventing return, and whether there are any outstanding matters that need to be put before the Home Office.

Examples of a barrier to return include:

• A pending article 8 (family or private life) immigration application or appeal that is not ‘obviously hopeless or abusive’
• Pending judicial review action against a Home Office decision
• Other pending legal action, such as involvement in a family or criminal court case
• Being unfit to travel due to pregnancy or other health-related reasons

When a barrier to return is identified, the human rights assessment will usually be straightforward and brief. For example, confirming that a young person has a pending article 8 private life application through NRPF Connect would enable the council to conclude the human rights assessment on the basis that there is a barrier to return. When a barrier to return is identified, support under the leaving care provisions of the Children Act can be provided in the usual way, subject to review.

When no barrier to return is identified, local authority practitioners are not required to undertake a complex analysis to determine whether a care leaver would be at risk of a potential human rights breach on return. Instead, the council must have regard to findings made by the Home Office or appeal courts regarding risk on return or other potential human rights breaches.

If no such findings have been made, the council would usually need to pause the human rights assessment and assist the young person to access legal advice to establish whether they can make a further application, so that any outstanding issues can be properly determined by the Home Office. Support under the leaving care provisions of the Children Act can continue whilst any further application is being considered.

The council can only withhold or withdraw leaving care support before the young person turns 21 (or 25) when it has determined, through a human rights assessment that has regard for any Home Office decisions, that the young person can avoid a breach of human rights by returning to their country of origin. In such cases, the young person can be supported to return. They can also continue to have a personal adviser and their pathway plan reviewed until they turn 21, although this may be difficult to administer in practice once financial support is withdrawn. They can also stay put in a foster placement until age 21.

4.1.3 When a care leaver can be supported by the Home Office

A young person (aged 18+) who has previously claimed asylum can only be referred to the Home Office for accommodation and financial support when:

• The duty to accommodate under the leaving care provisions ends due to the young person’s age (21 or 25 if on a course of education or training), or
• The council withdraws accommodation and financial support on the basis that the young person is ARE and there are no barriers preventing return to country of origin, as established through a human rights assessment

4.2 Changes to support for ARE care leavers

4.2.1 Summary of changes

The IA 2016 changes the legislative basis under which some care leavers (aged 18+) can be supported by their local authority once they become ARE or are otherwise without lawful status. This will leave many care leavers unable to access the full support and assistance they would otherwise have been entitled to under the Children Act 1989.

When a care leaver (aged 18+) becomes ARE, or is otherwise without lawful status, support and assistance under the leaving care provisions of the Children Act will only continue if the young person has:

• Lodged further submissions in relation to their asylum claim that have not been determined within a specified period
• Been granted permission to apply for a judicial review in relation to a refusal of their further submissions in relation to their asylum claim
• Made a first article 8 human rights application, which is pending or they are appealing a refusal of such an application

If none of these scenarios apply, the young person can be supported by the Home Office if they meet the criteria for section 95A support. 

If the young person does not qualify for section 95A support from the Home Office, the local authority can provide accommodation and financial support, as well as limited welfare assistance, under a new legislative framework: paragraph 10B of schedule 3 of the Nationality Immigration and Asylum Act 2002 (‘paragraph 10B’).

The young person will not be able to access any support or assistance provided under the  leaving care provisions of the Children Act when:

• Support is provided by the Home Office under section 95A or a council under paragraph 10B, or
• There are reasonable grounds to believe that support under section 95A or paragraph 10B can be provided

In such cases, the council will no longer have a duty as a corporate parent to safeguard the young person’s welfare and the young person will be excluded from accessing:

• Keeping in touch and the provision of a personal adviser, pathway plan reviews and assistance to meet any welfare needs until age 21 (section 23C)
• Assistance to pursue further education and training until age 25 (section 23CA)
• Staying put with foster carers until age 21 (section 23CZA)
• Personal adviser assistance & pathway plan from age 21 to 25 (section 23CZB)
• Personal adviser – regulations made under section 23D
• Advice and assistance (section 24A)
• Assistance to pursue further education and training until age 25 (section 24B)

The council will not be required to undertake a human rights assessment in order to withdraw support under the Children Act when a young person becomes ARE. 

4.2.2 Continuing leaving care support: first Article 8 application

Leaving care support under the Children Act can continue when a young person without lawful status is making a first article 8 application to the Home Office.

The young person must meet conditions A and B, plus one of conditions C, D, and E:

1. They have made an application for leave to remain based on article 8 (family or private life) grounds, and the application is not, in the opinion of the Secretary of State, made on a vexatious basis or wholly without merit
2. The application is the first application of that kind for leave to enter or remain in the UK that the young person has made
3. The application has not been determined or withdrawn
4. The application has been refused with an in-country right of appeal and the person is within the time to lodge the appeal
5. The application has been refused with an in-country right of appeal and the appeal is pending

When a care leaver meets conditions A and B, plus condition C, D or E, they will be able to continue to receive all forms of leaving care support available to them under the Children Act.

Young people will be unable to benefit from this provision if erroneous or poorly prepared article 8 applications were made on their behalf when they were under 18.

4.2.3 Section 95A Home Office support

An ARE asylum-seeking young person (aged 18+) will be able to access support from the Home Office under section 95A of the Immigration and Asylum Act 1999 (‘section 95A’) when they are destitute and face a ‘genuine obstacle to leaving the UK’.

There are a couple of issues that have not been confirmed in the consultation:

• When a care leaver can apply for section 95A support
• Whether the Home Office or council will provide accommodation when a young person qualifies for section 95A support

When a care leaver can apply for section 95A support

Adults and families who are supported by the Home Office when they become ARE will only be able to apply for section 95A support within a short ‘grace period‘ of 21 days (for adults) and 90 days (for families). A former unaccompanied asylum-seeking child may become ARE whilst they are being supported by the local authority under the leaving care provisions of the Children Act, but the government has not specified when they will be able to apply for section 95A support.

During the passage of the IA 2016 through parliament, the NRPF Network was advised that a grace period for care leavers would be addressed in regulations and that a time period may be set, with a suggestion that this could be 90 days from the point that the young person becomes appeal rights exhausted. However, this has not been confirmed by the current government.

Accommodation under section 95A

When an adult asylum-seeker becomes ARE and qualifies for section 95A support, accommodation and financial support will be provided by the Home Office, which may result in the person being placed in a different area to that where they are currently living.

During the passage of the IA 2016 through parliament, the government at the time suggested that there may be some circumstances in which the local authority could continue to provide accommodation to an ARE care leaver who qualifies for section 95A support, and that this would be funded by the Home Office. However, no reference to this is made in the consultation, so it is unclear whether the current government intends for such an arrangement to be made or whether all young people who qualify for section 95A support will be accommodated by the Home Office.

4.2.4 Paragraph 10B local authority support

When a care leaver who becomes ARE cannot be provided with ongoing support under the leaving care provisions of the Children Act and does not qualify for section 95A Home Office support, the local authority must consider whether there is any duty to provide support under paragraph 10B

Paragraph 10B is a new statutory framework introduced by the IA 2016 , which will apply to  adult care leavers who have not obtained leave to remain, as well as former unaccompanied asylum-seeking children who become ARE.

Eligibility for paragraph 10B support

A care leaver (aged 18+) can be provided with support under paragraph 10B when they:

• Are not receiving, have applied for, or potentially be eligible for section 95A Home Office support for ARE asylum seekers, and
• Meet one of conditions A to D

Conditions A to D:

1. They have made a non-asylum application (of a kind specified in regulations) to the Home Office which has not been withdrawn or determined
2. They are destitute and in time to lodge an in-country non-asylum appeal
3. They are destitute and have an in-country non-asylum appeal pending
4. They are appeal rights exhausted and the local authority is ‘satisfied that that support needs to be provided’

Destitution will be assessed in line with the definition used by the Home Office in asylum support applications.

Regulations will specify that the application for leave to remain must be based on Article 8 of the European Convention on Human Rights (family or private life grounds) and is not, in the opinion of the Home Office, made on a vexatious basis or wholly without merit. The government is consulting on whether only applications made on article 8 grounds should enable ARE asylum-seeking care leavers to qualify for support under paragraph 10B (although note that paragraph 10B also applies to young people that have overstayed their visa or are otherwise without lawful status).

Although condition D applies when the local authority is ‘satisfied that that support needs to be provided’, it appears that there will be little scope for councils to apply their own expertise and discretion in deciding whether condition D applies. Instead, councils will need to apply  regulations and take into account any guidance issued by the Home Office. The government has provided more information about how councils should apply condition D in the consultation.

When deciding whether condition D applies, it states:

[Councils] must take into account:

• The fact that there is no general obligation on a local authority to provide accommodation for individuals without immigration status who intentionally make themselves destitute by refusing to leave the UK when there is no obstacle to their departure

• Whether, in the opinion of the Secretary of State, there is a genuine obstacle to leaving the UK [in line with how this is considered for section 95A applications]

[Councils] must not take into account:

• The receipt of ongoing medical treatment in the UK

• The unavailability, or possibly unavailability, of medical treatment in the country to which the person is required to return

• The undesirability or inadvisability of leaving the UK for medical reasons

The factors that must or must not be taken into account when deciding whether condition D is met are under consultation.

Interim support

A council will be able to provide support to a care leaver on an interim basis whilst it is deciding whether support can be provided under paragraph 10B.

What support can be provided

When a care leaver qualifies for support under paragraph 10B, the council can only provide:

• Accommodation
• Subsistence in kind, cash or vouchers

However, some additional assistance that is similar to what is provided under the leaving care provisions of the Children Act can continue to be given to a young person supported under paragraph 10B on a case-by-case basis.

The government states that regulations will require the local authority to make arrangements in accordance with the following principles:

• The local authority must be satisfied that the arrangements are needed to support the individual through to their departure from the UK

• The arrangements must recognise the value of the local authority keeping in contact with the individual through to their departure from the UK and continuity of contact, and,

• The arrangements must take account of arrangements made by or on behalf of the Secretary of State or the local authority for the individual’s departure from the UK

The government does not explain these arrangements in any more detail, but it appears that the local authority will be required to ‘keep in touch’ with the young person whilst they are supported under paragraph 10B and that continuity of contact with the local authority will be required with a view to supporting the young person’s return.

During the passage of the IA 2016 through parliament, the government at the time suggested that similar assistance would also be available to care leavers receiving Home Office support under section 95A. However, no mention of this is made in the current consultation.

4.2.5 Transitional arrangements

The government does not state anything about any transitional provisions for care leavers without lawful status who are already receiving support under the leaving care provisions of the Children Act when the IA 2016 changes are brought into force.

However, during the passage of the IA 2016 through parliament, the government at the time confirmed that the provisions would not apply to young people receiving leaving care support when schedule 12 is implemented.

4.2.6 Higher education funding

Councils will be prevented from fully or part-funding a care leaver’s tuition fees when the young person has:

• Limited leave to enter or remain
• A pending application for leave to remain
• A pending asylum claim or appeal
• Pending further submissions that have not been determined within a set period, or has a pending judicial review against the refusal of further submissions

Councils will not be able to pay tuition fees in full or partially if the young person is undertaking one of the following courses:

• First degree
• Post-graduate or higher degree
• Diploma of Higher Education
• Higher National Diploma or Higher National Certificate of the Business & Technician Education Council, or the Diploma in Management Studies
• Certificate in Education
• Education at a higher level (whether or not in preparation for an examination)
• Preparation for a professional examination at higher level
• Further training of teachers or youth and community workers

Young people with refugee status, humanitarian protection or leave to remain granted under certain long residence rules can usually qualify for ‘home’ fees, a student loan, and student support.

Care leavers who are without lawful status, are seeking asylum, or have a different type of limited leave to remain are unlikely to be able to pursue higher education, as they will not qualify for student finance and the council will no longer be able to fund their tuition fees, should this need be identified in their pathway plan.

4.3 What will not change

Local authority duties to looked after children who are under 18 will continue to apply, regardless of the child’s immigration status. Therefore, there will be no change to the support available to unaccompanied asylum-seeking children and other migrant children who are in local authority care.

When a young person reaches 18, they can be provided with ‘full’ leaving care support and assistance, or assistance as a qualifying care leaver, under the Children Act if they have:

• Refugee status or humanitarian protection
• Pre-settled status or settled status
• Any other type of leave to remain
• An outstanding initial asylum application or appeal against the refusal of their asylum claim
• A pending ‘in-time’ application or appeal to extend a previous grant of leave to remain, such as UASC leave, which remains outstanding

However, if the young person’s immigration status changes before they reach 21 or 25, and they become ARE, the council would need to establish if the young person qualifies for:

• Ongoing leaving care support (on the basis of meeting the further submissions or judicial review criteria, or making a first article 8 application)
• Section 95A Home Office support
• Local authority support under paragraph 10B