Since 1996, immigration rules have largely required individuals subject to immigration control (other than asylum seekers) to be financially self-sufficient as a condition of their stay in the UK.1, 2 This means that they must be able to support themselves or be wholly supported by their family or sponsor in the UK without having “recourse to public funds”.
Permission to enter or remain in the UK may be subject to the condition that
the person concerned has “no recourse to public funds”. That means that they
will not be eligible for most benefits, tax credits or housing assistance that
are paid by the state.
This condition does not apply to British citizens, Commonwealth citizens, people who have been allowed to stay permanently, people with refugee status and humanitarian protection, or to people granted exceptional or discretionary leave to remain if there is no
condition attached with regard to recourse to public funds. EEA nationals and
their families are entitled to the same benefits and housing assistance as UK
nationals, subject to certain conditions, depending on which country they come
from, and whether or not they are, or have been, working in the UK.i
Undocumented migrants and people with outstanding
applications for leave also have no recourse to public funds. While asylum
seekers are excluded from housing and most benefits, they may be entitled to
help from the separate system of asylum support (see Asylum support, accommodation and dispersal).
For the purpose of the immigration rules, public funds
comprise housing support
and a range of benefits available to people on low incomes. Excluded public funds are: Universal Credit, income-based
Jobseeker's Allowance, Income Support, Child Tax Credit, Working Tax Credit, Social
Fund payments, Child Benefit, Housing Benefit, Council Tax Benefit, State Pension
Credit, Attendance Allowance, Severe Disablement Allowance, Carer's Allowance, Disability
Living Allowance, Personal independence allowance, Social Fund payments, allocation of local authority housing, local authority
homelessness assistance, Health in Pregnancy Grant, and income-related Employment
and Support Allowance.1,3
Benefits
which are dependent on National Insurance contributions are not considered
public funds. Moreover, neither is health care nor local authority education schooling, although other
rules may restrict their availability to migrants.
However,
in some circumstances, usually where there is no other assistance available,
local authority social services departments may provide accommodation,
financial support and support services to children in need and their families,
and to adults who require such support because of physical or mental illness,
disability or old age.
These services are primarily provided under the Children Act 1989 (CA 1989) section 17
and the National Assistance Act 1948 (NAA
1948) section 21 and will be provided to people who are ‘ordinarily resident’
within an authority. Ordinary residence has no statutory definition but usually
means where the person is actually living or present, even if this is only for
a very short period.
Many migrants are also excluded from some of these accommodation
and support provisions. The Nationality
Immigration and Asylum Act 2002 section 54 and schedule 3 specifically
restricts access to services under these acts to a range of migrants who are:
- citizens of other EEA countries
- people granted refugee status in other EEA countries
- ‘failed’ asylum seekers who
have failed to co-operate with removal directions
- ‘failed’ asylum seekers with a dependent child (or children)
certified by the Secretary of State as having failed to take reasonable steps
to leave the UK
- people who are in the UK in breach of the immigration
laws. This applies to overstayers or illegal entrants, but not to people who
claimed asylum on arrival in the UK.
There
are some exceptions to the above exclusions. Anyone, whatever their immigration
status, who has been compulsorily detained under the Mental Health Act 1983, is entitled to aftercare support, which
could include accommodation, under section 117 of the Act.4
Families
with dependent children who are subject to a removal order can receive
accommodation and support until they fail to co-operate with removal directions.
Local authorities can also offer such support to destitute EEA nationals and EEA
refugees with dependent children while the local authority makes arrangements
for them to travel to the relevant state or until they fail to co-operate with
such arrangements.
Accommodation and support under the CA 1989 or NAA 1948 can
be provided to those people otherwise excluded by Schedule 3 where it would be
a breach of a person’s human rights under the European Convention on Human
Rights (ECHR) to refuse to provide them. Such grounds are most likely under
Articles 3 or 8 of the ECHR (see Humanitarian protection, discretionary leave and other protection for an explanation of these
Articles) but it is not
always clear what would constitute a breach of human rights.
There is considerable case law
relating to local authorities’ duties for support and accommodation in relation
to the ECHR.
Local authorities need to carry out a human-rights assessment to
establish whether there is an obligation on the authority to provide support in
order to prevent a breach of a person’s human rights.5 For example, the courts have
decided that a ‘failed’ asylum seeker excluded by Schedule 3, but who had made
fresh representations to the Home Office and who needed looking
after, should be supported by Social Services under s21 National Assistance Act
1948 (NAA 1948).6
In another case, the Court of Appeal also
decided that families who had outstanding applications for leave under Article
8, who were not ‘obviously hopeless or abusive’, could be supported under s17 Children Act 1989 (CA 1989).7 The law in this area is
extremely complex and where a migrant is seeking support in these circumstances
legal advice should be sought as a matter of course.
The
provisions under the NAA 1948 do not entitle someone to support from social
services if their claim is based solely
on destitution. In 2008, a ruling by the House of Lords in M v.
Slough Borough Council decided that destitute adults with a medical
condition, or who were disabled, frail or old, could only be accommodated by social
services if they needed ‘looking after’.
This case involved a person with HIV
who had no need for ‘care and attention’ beyond medical treatment provided by
the NHS. This judgment removed the right of many HIV-positive asylum seekers to
receive housing support from social services under Section 21 of the National Assistance Act.2 The judgment did not clearly define care and
attention, but stated that it involved an individual needing some help in looking after him or
herself ‘even to a relatively small degree.’ Such help can include needs such
as help with domestic tasks, nursing care, counselling, mental-health support, personal care, etc.8
In
a 2012 case, the local authority’s refusal of support was deemed unlawful. The
Royal Borough of Kensington and Chelsea had refused to provide the person
support under the National Assistance Act 1948 or to carry out an assessment
under the National Health Service and Community Care Act 1990. Mr De Almeida, a
terminally ill Portuguese national living with HIV, filed a judicial review. The High
Court decided that the decisions to deny the man care and assistance, and to
deport him, amounted to a breach of his right to freedom from ill-treatment and
his right to respect for his private life protected by articles 3 and 8 of the
European Convention on Human Rights.9
In
another judgement known as Zambrano, the European Court of Justice
held that the parents of a child who is a national of a Member State must be
granted the right to work and the right of residence in that Member State in
order to protect the right of the child to live in Europe.10
The
UK subsequently amended its rules so that non-EEA nationals who are a primary carer of
a dependent British citizen, such as a child, have the right to reside and to
work in the UK – provided the British citizen would otherwise be forced to
leave the EEA and be deprived of exercising their rights as an EU citizen.
Those with a Zambrano right who meet the entitlement criteria will be
entitled to claim contributory benefits in the UK (e.g. contribution-based Jobseekers
Allowance), but not income-related benefits. The relevant regulations for applicable
benefits will be amended.11
Social services’ duty under NAA
s21 exists even towards asylum
seekers who are eligible for support from the Home Office under section 95 or section
4 of the Immigration
and Asylum Act 1999 (IAA1999) (see below Asylum support, accommodation and dispersal) if they need ‘looking
after’.
Moreover, if the asylum seeker has children then social services will
support the adult with the Home Office contributing to the accommodation and support
costs of the children. However, because of the ‘need for looking after’
threshold set by the Slough judgment, fewer asylum seekers with HIV are now
eligible for this support.
Other destitute
people subject to immigration control may be eligible to NAA 1948 s21 support
if they need ‘looking after’. These include adults who have made an application
for leave to remain under Article 8 of the ECHR or other immigration rules. Adult overstayers in need of ‘looking after’ may be assisted with
accommodation and support under s21, pending their return to their country of
origin, and may be assisted with basic travel costs.
Social services departments also have the power to provide
residential accommodation for destitute pregnant women and nursing mothers who
are in need of care and attention not otherwise available to them. However, this is a power and not a duty. If the pregnant woman is an asylum seeker,
social services will refer her to the Home Office. In other cases she would have to
meet the ‘looking after’ test outlined above, though criteria for this in
relation to pregnancy have not yet been tested in court.12 There is evidence of migrant pregnant women sleeping
rough and relying on homeless services for meals.13, 14
It is very difficult for women with no recourse to public
funds who are destitute as a result of domestic violence to obtain support
unless they can also demonstrate a need to prevent harm to themselves or their
children in addition to destitution.15 The case of Khan v. Oxfordshire indicated
that there may be instances where a
victim of domestic violence has a need for care and attention which arises from domestic violence itself and not
solely because of destitution, for example if she was in need of medical
treatment and needed ‘looking after’. This will depend on the individual
circumstances of each case.16,17ii
However, it has been argued that “for a
significant number of women, the existence of the 'no recourse to public funds'
requirement in immigration and welfare law, prevents them from making use of
the domestic violence rule because they cannot access safe housing or benefits
to escape domestic violence. The result is that they are faced with a stark
choice, leave and face destitution or stay and risk their lives.”
In certain
circumstances, a victim of domestic violence who came to the UK to join a
partner, may be able to apply for indefinite leave to remain. Moreover while preparing this application, the
individual may be eligible for short-term leave to remain, lasting three months
and with recourse to public funds. The
UKBA call this route ‘Destitute Domestic Violence’ (DDV).18
To establish whether they have a duty to support an
individual or a family under the CA 1989 and the NAA 1948, local authorities
need to conduct both an assessment of need and a test of eligibility. A
community care or community mental health needs assessment must be carried out
to establish an adult’s need to be ‘looked after’, or, in the case of a child,
a CA 1989 s17 assessment.15
Local authorities have a statutory duty to carry out such an assessment if they
are aware that a person may be in need of community care or Children Act
services. To test eligibility the authority must establish a person’s ordinary
residence, whether they are destitute, and whether they are excluded for
support under immigration legislation. If they are ineligible on the grounds of
immigration status, the authority must nevertheless carry out a human-rights
assessment to establish their obligation to support them under the ECHR.12
i. This
section does not discuss the entitlements to social assistance of EEA
nationals
who are not economically active.
ii. Following the judgment in R[Clue] v. Birmingham City Council such women may now be entitled to support under Section 17
of the Children Act if they are making a claim for leave following
domestic violence.