This chapter provides information for practitioners to assist families with no recourse to public funds to identify and achieve an appropriate pathway off support when they are supported under section 17 of the Children Act 1989.

9.1 Introduction

When a family is provided with accommodation and financial support under section 17 of the Children Act, it will be necessary to help the family to identify an appropriate pathway off support and assist them to achieve this.

Proactively assisting families in this way will promote the well-being of children, empower parents, and ultimately can help the family to achieve a long-term solution to their situation of destitution.

For the majority of families, section 17 support will end following a grant of leave to remain which allows them to access benefits and homelessness assistance: our data shows that in 2023-24, 70% of families that had their section 17 support ended were granted leave to remain.

Our data also shows that families were provided with accommodation and financial support under section 17 for an average period of just over 1.5 years, so it is important for local authorities to ensure that:

• Families are able to access good quality immigration advice as early as possible
• Staff can signpost families to immigration information and specialist legal advice
• Staff work in partnership with the Home Office using NRPF Connect to request that the Home Office expedites outstanding immigration applications

When a family is encountered before they need accommodation and financial support, signposting them to immigration advice and general immigration information might mean the family can take early action and resolve their immigration situation before they become homeless or reach crisis point. For more information about early intervention, see section 4.1.

9.2 Immigration advice

Access to good quality immigration advice is essential to enable families to make the right application to the Home Office and to present their case as effectively as possible. It is important that families are only signposted to regulated immigration advisers. However, accessing good-quality free legal advice is very challenging for families, particularly in certain parts of England and Wales, as there is no legal aid for most immigration matters.

In some cases, the local authority will need to consider commissioning immigration advice. There will be a clear cost-benefit in doing so where access to good-quality and free immigration advice would otherwise be non-existent or limited, so that families can establish whether they have grounds to apply for leave to remain and, if so, be assisted with making an application.

It is also important that local authority staff are aware of the difference between providing general information and giving immigration advice. However, it will still be necessary to engage with a family’s immigration matter proactively in order to signpost families to information and legal advice, as required.

9.2.1 Who can provide immigration advice

‘Immigration advice’ is advice that relates to an individual and is given in connection with a relevant immigration matter. ‘Immigration services’ means making representations on behalf of a particular individual in civil proceedings before a court, tribunal or immigration judge, or in correspondence with a Minister of the Crown or a government department.

Immigration advice and services can only be provided directly to individuals by properly regulated legal practitioners. It is a criminal offence for a person to provide immigration advice or immigration services to an individual when they are not permitted to do so.

The following people can provide immigration advice:

• An immigration adviser who is registered with the Office of the Immigration Services Commissioner (OISC) or is exempt from registration
• A solicitor who is registered with the Solicitors Regulation Authority (England and Wales), Law Society of Scotland or Law Society of Northern Ireland
• A barrister who is regulated by the Bar Standards Board (England and Wales), Faculty of Advocates (Scotland), or the Bar Council of Northern Ireland

OISC advisers will be registered to give advice at a particular level of competency in asylum or immigration law. They must not provide advice that falls under a higher competency level than that which they are registered at. For example, human rights applications and immigration applications made by people who have overstayed their visa must be made by a level 2 or 3 adviser. Therefore, families supported under section 17, who are likely to be making applications on family or private life grounds or who do not have lawful status, will need to be signposted to a level 2 adviser. For full details about what type of work is permitted at each level, see the Guidance on Competence 2021 (OISC, July 2021).

9.2.2 Signposting to an immigration adviser

It will be necessary to establish a list of local immigration advisers that can be provided to a person who is receiving support.

In England and Wales, legal aid is only available for a very limited number of immigration (non-asylum) matters, although in some cases, a family may be able to apply for exceptional case funding. In some parts of England there are no legal aid providers. For more information about exceptional case funding, see the NRPF Network website.

Law centres and voluntary sector organisations with OISC-registered advisers may be able to provide free advice for certain groups or for particular types of cases. Such services are usually heavily over-subscribed and case workers can often spend significant amounts of time helping families to unsuccessfully access different providers.

For more information about how to find local immigration advisers, see the NRPF Network website.

Where the availability of free and good quality immigration advice is limited, the local authority may need to commission advice. There are various ways in which this can be done, such as through providing a grant to a voluntary and community sector organistion or paying an adviser on a case-by-case basis. Different models of funding immigration advice used by local authorities across the UK are set out the report, ‘It’s a No-brainer’: Local Authority Funding for Immigration Legal Advice in the UK (Justice Together, May 2023).

9.2.3 What you can do if you are not an OISC adviser

Providing general information and signposting a person to a legal representative is not classed as providing immigration advice.

Things that local authority staff can do in order to assist families to progress their immigration matters include:

• Identify when a family may require legal advice about their immigration matter
• Signpost families to a regulated immigration adviser
• Signposting families to sources of general information, such as gov.uk or the NRPF Network website
• Help a family to obtain documents to support their immigration application, as advised by their immigration adviser
• Provide a letter to confirm details of the local authority’s involvement with the family, including whether accommodation and/or financial support is being provided

Families should be advised to inform their legal representative that they are receiving local authority support and what information has been shared with the Home Office. This will enable the legal representative to advise their client appropriately and update any pending applications, where this is necessary.

When an immigration claim has been submitted by a family, the local authority will need to proactively chase this up with the Home Office. Local authorities that subscribe to NRPF Connect can use the system to obtain immigration status information, chase up outstanding applications, and request that applications are treated with priority when a person is provided with accommodation and financial support.

9.3 Immigration routes

UK immigration rules are complex and can regularly be amended by government. A person’s current immigration status, their individual circumstances, and their residence history will usually determine what type of application they can make. This section includes information about possible options that might be available to some families supported under section 17, based on the parent’s current immigration status. In all cases, families will need to be signposted to an immigration adviser so that they can receive advice about any options available to them and for assistance with submitting an application.

9.3.1 Leave to remain with NRPF

A person who has leave to remain with NRPF may be able to gain access to public funds (benefits and local authority housing assistance) by making a change of conditions application to request that the NRPF condition is lifted when they have leave to remain on one of the following routes:

• Parent or partner on the family life route
• Private life route
• Hong Kong BN(O) route

In exceptional circumstances, the Home Office will also consider lifting the NRPF condition for people with other types of visas, such as student or work visa holders. However, a person with a student or work visa will usually be expected to leave the UK if they are unable to support themselves and their families. Such an application will only be successful in exceptional circumstances and for some families there will be risks relating to their immigration status by making an application. Therefore, even though it might appear that this route is available to a family supported under section 17, they could receive legal advice that it is not in their best interests to apply for it.

For more information about the change of conditions application, see the NRPF Network website.

When a Hong Kong BN(O) visa holder makes a change of conditions application, the local authority can apply for funding of up to £2,720 per household to contribute to the costs of providing any advice or destitution support. More information about the Destitution Fund is available on gov.uk.

There will be some instances where parents who have leave to remain with NRPF are unable to apply for change of conditions or switch to other immigration routes that would give them access to public funds. Even where parents are working, if they do not have access to benefits they are unlikely to have sufficient income to be able to afford suitable accommodation and to meet the costs of their child’s basic needs.

In such cases, there are no easy solutions for the families concerned and section 17 support may need to be provided on a long-term basis. The local authority would need to ensure it has done as much as possible to help the parent to access relevant advice and boost their income, such as by accessing free school meals, childcare, and employment advice. Recording the family’s details on NRPF Connect provides evidence the local authority’s involvement and any costs incurred supporting such families, which the NRPF Network will raise with government to press for funding and policy change.

9.3.2 Victims of domestic abuse

When a parent has separated from a partner due to domestic abuse they will need to get legal advice from an immigration adviser to find out what their options are. This is particularly important if they have (or last had) leave as the dependant of their partner, such as a spouse visa or student dependant.

Some people with a partner visa who have separated from their partner due to domestic abuse may be able to apply for the Migrant Victim of Domestic Abuse Concession (MVDAC), which gives them three months leave to remain with access to public funds (benefits and local authority housing assistance) whilst they either make a new application for leave to remain or leave the UK.

Some groups that can apply for the concession will not be eligible to apply for indefinite leave to remain (ILR) on the basis that they are a victim of domestic abuse, so may not have an onward immigration route open to them. Therefore, even though the MVDAC may be available to a family supported under section 17, they could receive legal advice that it is not in their best interests to apply for it.

For more information about who can apply for a MVDAC and potential difficulties that people with certain types of visas will need to be aware of, see the NRPF Network website.

9.3.3 Pre-settled status

A person with pre-settled status will have been granted five years’ leave to remain and can apply to the EU Settlement Scheme for settled status after they have completed five years’ continuous residence in the UK. They do not need to have held pre-settled status for the five-year period.

When a person obtains settled status, they will have indefinite leave to remain and full entitlement to benefits and local authority homelessness assistance. Therefore, it will be necessary to establish when a parent with pre-settled status will be able to apply for settled status and help them to access immigration advice if it appears that they may qualify soon. For more information about applying for settled status, see the NRPF Network website.

The Home Office has automatically extended the pre-settled status expiry date by five years in order to protect a person’s lawful status, in case they do not apply for settled status before their initial leave expires.

When a parent is still some time away from being able to apply for settled status, they will usually need to continue to be supported under section 17 until they are able to qualify for universal credit. For EEA nationals with pre-settled status, entering employment or self-employment may be a route to qualifying for benefits, but for family members of EEA nationals, their entitlement to benefits will be more complex.

Depending on their circumstances, a parent with pre-settled status may need to be:

• Signposted to a welfare rights/benefits adviser for advice about whether they may qualify for universal credit and other benefits
• Assisted to access ESOL courses, training, or employment services where appropriate
• Advised and assisted to access free childcare hours, where appropriate
• Signposted to an immigration adviser when they are able to apply for settled status or if there are any complexities regarding their future entitlement to settled status, such as lengthy absences from the UK

9.3.4 Families without lawful status

When a parent has no lawful status in the UK, they will be subject to 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 to a family where the family can return to their country of origin to avoid destitution in the UK. This bar will be lifted when there is a legal barrier or practical obstacle preventing a family from returning to their country of origin. In addition to the child in need assessment, the local authority will undertake a human rights assessment in order to establish whether there are any barriers to return, such as a pending immigration application or appeal. For more information about human rights assessments, see section 4.3.

Providing families with an opportunity to access immigration advice will be essential to enable the local authority to correctly implement schedule 3 and to establish the family’s pathway off support. For the majority, this will be achieved by being granted leave to remain. In 2023-24, 70% of families transitioned off local authority support following a grant of leave to remain by the Home Office, whereas only 5% of families left the UK. For a small number of families who make unsuccessful immigration claims, their situation of destitution in the UK may only be resolved by returning to their country of origin where they are able to access employment and other services.

An immigration adviser will identify what options a family may have and, when an application is pursued, assist them to make their claim.

The following immigration options are useful to be aware of:

• Parents that have lived in the UK for 20 years or longer, or have a British child or a child that has lived in the UK for 7 years, may be able to make an application for leave to remain under the Immigration Rules. However, parents with different circumstances might still be able to make an application on human rights grounds under the family or private life rules
• When a family need to make an application for leave to remain under the family or private life rules, they may be able to obtain a fee waiver if they cannot afford to pay the application fee
• A child who was born in the UK and has lived here for 10 years will be entitled to register as a British citizen – a fee waiver is available for families that cannot afford the fee
• When a person states that they believe they would be at risk of persecution or ill treatment in their country of origin, they would need to be signposted to an immigration adviser to find out whether they can claim asylum. Legal aid is available for asylum cases
• When a person expresses a wish to return to their country of origin, they can be signposted to information about the Home Office voluntary returns service and may also wish to get immigration advice to find out what the long-term implications of taking up voluntary return would be

More information about fee waivers, child registration applications and Home Office voluntary return is available on the NRPF Network website.

When a family’s application for leave to remain (and any subsequent appeals) has not been successful or a family has been advised by an immigration adviser that they do not have grounds for any further applications, the local authority will need to review its human rights assessment. For more information about supporting a family to return, see section 10.7.