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:
- They have made a non-asylum application (of a kind specified in regulations) to the Home Office which has not been withdrawn or determined
- They are in time to lodge an in-country appeal against the refusal of a non-asylum application
- They have an appeal against the refusal of a non-asylum application pending
- They are appeal rights exhausted and have not failed to cooperate with arrangements that would enable them to leave the UK
- 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.