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