Question 14

What responsibilities do local authorities have towards families with children when the parent/s are desititute and have ‘no recourse to public funds’ (NRPF)? [1]

PLEASE NOTE: THIS INFORMATION DOES NOT COVER UNACCOMPANIED ASYLUM SEEKING CHILDREN, WHO SHOULD BE SUPPORTED UNDER THE CHILDREN ACT 2004 (see the information note on Care and Support for Unaccompanied Asylum Seeking Children).

FOR INFORMATION ON THE RESPONSIBILITIES OF LOCAL AUTHORITIES TO UNACCOMPANIED ASYLUM SEEKING CHILDREN WHO HAVE TURNED 18, see the information note on the Home Office position re: Schedule 3.

A range of people who are 'subject to immigration control' have NRPF including:

• refused asylum seekers
• people on sponsorship visas where the relationship with the sponsor has broken down
• people who have overstayed their visa
• people who originally arrived in the UK on a visa and have subsequently put in further representations to remain in the country

Local authorities have a statutory duty to provide care support, including accommodation and subsistence, to certain categories of people who have NRPF and are “destitute-plus”. Those who are destitute-plus can be defined as those who have been assessed under community care and children’s legislation as having a need for care and attention above “mere” lack of accommodation and subsistence. This is a complex area of work involving the interface of immigration, community care and human rights law.

What types of care needs mean people qualify for support from a local authority?

Care needs vary and include:

• people who have an assessed community care need, for example as a result of ill health, disability or age
• people who have an assessed mental health need
• pregnant women and nursing mothers
• adults with responsibility for children(consideration should be given to undertaking a Section 17 assessment to establish whether the child has needs over and above those that apply to the carer. If the child is found to be destitute then the local authority has a duty to provide services including accommodation to that child).

If a pregnant woman is destitute and requires support and assistance she is able to approach the local authority, who may exercise a power to provide interim support to an expectant and nursing mother under s21 (1) (aa) of the National Assistance Act 1948 [2]

In some circumstances, local authorities can provide interim support until the woman or child is able to travel and return home. It is recommended that women over 7 months pregnant or infants under 8 weeks old are unable to travel [3]

Is anyone excluded from local authority support?

Under immigration legislation there are four categories of people who are excluded from support by local authorities. The four categories are:

• nationals of the European Economic Area (EEA)
• people with refugee status granted by a country within the EEA
• people unlawfully present in the UK (including those whose visa has expired)
• refused asylum seekers who have refused to co-operate with removal directions [4]

However, there may still be a duty on a local authority to provide support where failure to do so would result in a breach of an individual’s human rights. The relevant articles of the European Convention on Human Rights (ECHR) are likely to be:

• Article 3 (prohibition on torture or inhuman or degrading treatment or punishment), and
• Article 8 (respect for private and family life).

In the case of children who have been resident in the UK for seven years but whose immigration status has not yet been determined, a local authority should have regard both to the '7 year concession' policy(see the FAQ Does the Home Office remove or deport families with children who have been living in the country for seven years or more? ) and the reasons underlying that policy, as well as whether Article 8 of the Convention would be breached if suitable support was not provided. [5]

Though the law governing this area of work is complex and interpretation of the law regularly changes as the result of case law, there is little guidance for local authorities. For a more detailed analysis of the steps that should be taken to establish eligibility; whether an individual is ‘desitute plus’; and the details of a human rights assessment, click here.

Revised 03/12/08

Notes

[1] No recourse to public funds is defined as:

• A person who is subject to immigration control; and
• Has no entitlement to welfare benefits, public housing or HO asylum support
• Most often does not have the right to work (people granted leave as spouses or civil partners are permitted to take up employment)

To see UK Border Agency Leaflet on 'No Recourse to Public Funds' click here