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1.5.5 Families with No Recourse to Public Funding

RELEVANT CHAPTER

Unaccompanied Asylum Seeking Children Procedure

RELEVANT GUIDANCE

No Recourse to Public Funds Network Practice Guidance for Local Authorities

Securing British Citizenship for Looked After Children – Project for the Registration of Children as British Citizens

AMENDMENT

In March 2018, a link was added to information from the Project for the Registration of Children as British Citizens in relation to the responsibilities that local authorities have to ensure that children in their care have effective access to specialist legal advice so their citizenship or any entitlement to citizenship is secured. See Relevant Guidance (above) for full details.


Contents

  1. Immigration Issues and the Role of the Local Authority
  2. Contact Made to the Duty and Advice Team when a Family may have No Recourse to Public Funds
  3. Procedures for Working with Families with No Recourse to Public Funds
  4. Documentation Checklist for the Assessment of People with No Recourse to Public Funds


1. Immigration Issues and the Role of the Local Authority

Who are Families with No Recourse to Public Funds?

People who have no legal entitlement to financial support or assistance from the state are known as people who have No Recourse to Public Funds (NRPF). They may self-refer to Kirklees Council for support or be referred from other agencies within and external to Kirklees.

The council may be approached by families with children, or, children or young people who are unaccompanied or Separated* from their families.

These families may be (this list is by no means exhaustive and is only an example of the categories of people who present to social services as destitute and have No Recourse to Public Funds): 

  1. People with refugee status from another European Economic Area (EEA) country other than the UK, or, are dependent's of people in the UK who have refugee status from a EEA country other than the UK;
  2. People who are citizens of an EEA country other than the UK, or, are dependent of people who are citizens of an EEA country other than the UK;
  3. Failed asylum seekers who have exhausted their appeal rights and who have failed to co-operate with removal directions;
  4. Persons who are unlawfully present in the UK who are not asylum-seekers. For example, people who have overstayed their leave to remain, people who have been trafficked into the country, people who entered the country illegally;
  5. People who have been granted limited leave to remain on the condition that they have No Recourse to Public Funds. For example, people who are spouses and unmarried partners of persons with British citizenship or indefinite leave to remain, who have been granted a two year probationary period on condition of No Recourse to Public Funds;
  6. People who have been granted discretionary leave to remain, for example, 'separated' children or young people from non-suspensive appeal countries whom the Home Office does not grant either refugee status or humanitarian protection, and are given 12 months leave to remain or until their 18th birthday, whichever is shorter;
  7. People on student visas who are unable to work and have No Recourse to Public Funds.

* Separated Children are children who are accompanied or unaccompanied outside their country of origin and separated from their parents or their legal or customary care giver.


2. Contact made to Duty & Advice Team when a Family may have No Recourse to Public Funds

When a contact is made to the Front Door and the reason is because a family or a parent carer have a child and may have No Recourse to Public Funds (NRPF), the first consideration should be to establish if they are a UK / European Economic Area (EEA) national. The EEA includes EU countries and also Iceland, Liechtenstein and Norway.

The following countries are in the European Economic Area:

Austria Greece The Netherlands
Belgium Hungary Norway
Bulgaria Iceland Poland
Cyprus Republic of Ireland Portugal
Czech Republic Italy Romania
Denmark Latvia Slovakia
Estonia Liechtenstein Slovenia
Finland Lithuania Spain
France Luxembourg Sweden
Germany Malta UK

Switzerland is neither an EU nor EEA member but is part of the single market - this means Swiss nationals have the same rights to live and work in the UK as other EEA nationals.

If the family are EEA nationals, they are usually not NRPF.

2.1 Habitual Residence Test

However, where people are not able to find work and may want to claim benefits, they may not be able to do so because they do not pass the Habitual Residence Test (HRT).

The HRT is carried out on most EEA nationals who apply for benefits. The habitual residence part of the test is also carried out on some UK nationals who have been living or working abroad. However, UK nationals automatically have the right to reside so don't have to satisfy the right to reside part of the HRT. To satisfy the test you must show:

  • You have a right to reside in the UK. This means you have a right to live here; and
  • You intend to settle in the UK, Isle of Man, Channel Islands or Ireland (the Common Travel Area) and make it your home for the time being. This is known as habitual residence.

Even if a claimant can show that they have a right to reside, they may still need to show that they are habitually resident.

They will be asked questions to find out if they satisfy the HRT. The Department for Work and Pensions (DWP) will then decide whether they have a right to reside and, if they decide that the person does, they will then decide whether they are habitually resident. If the person does not satisfy the test, most means-tested benefits will be refused.

Children’s social care will advise that they should return to their country of origin within the EEA. However, if they do not do so, and remain here without funding, they would be NRPF. As such children’s socoal care would have responsibility to a child as they would be a child in need under Section 17 Children Act 1989.

For more information on the Habitual Residence Test, please see the Citizen’s Advice Bureau Website.

2.2 Duty and Advice

Duty and Advice should carry out their usual enquiries and take any required action but also direct the family to the benefits agency to investigate if they have recourse to any welfare benefits and advise if they are able to seek work. Duty and Advice will make any  referrals as required to the relevant cluster social work team based on their early assessments. They may also decide that the child’s needs can be met though Early Help services

If the family are not EEA nationals, or do not pass the HRT and do not return to their country of origin, Duty and Advice will refer to the relevant cluster social work team for assessment under s17 Children Act 1989.

2.3 Role of the Local Authority

Kirklees Council is restricted by legislation in terms of what it can provide by way of assistance and support for all the categories of people outlined in the previous section.

Under Section 54 of the Nationality, Immigration and Asylum Act 2002, families who fall under categories a. to d. are not eligible for support from social services under Sections 17, 23C, 24A or 24B of the Children Act 1989. They are also not eligible for adult social care support under the Care Act 2014 or accommodation under homelessness legislation.

The Home Office allows for limited forms of assistance to be given by local authorities to some families and this could be in the form of:

  • Travel assistance to people with dependent's under 18 years  to leave the UK;
  • Temporary accommodation to people with dependent's under 18 years awaiting the implementation of their travel arrangements;
  • Temporary accommodation to people in category d. with dependent's under 18 who are awaiting instructions for removal.

However, Kirklees Safeguarding and Protection Service still has the following duties toward all children, young people and families regardless of their status:

  • Under the Children Act 1989, to carry out a Child in Need Assessment for all children under 18 years old who are in families, where there may be concerns about a child/children's welfare and/or safety;
  • To carry out a Child in Need Assessment for all 'separated' children under the age of 18 and to provide them with services in line with needs identified using Section 17 and Section 20 of the Children Act 1989 (including any issues that may indicate that the child is, or has been, trafficked or is a victim of compulsory labour, servitude or slavery);
  • To carry out an assessment of an adult for community care services under the Care Act 2014 where the adult’s need for such services have not arisen solely due to destitution and/or to avoid a breach of the adult’s human rights which would otherwise occur if no services were provided.

2.4 Asylum Seekers and the UK Visas and Immigration Support

All asylum seeking applicants newly arrived in the UK are managed by the UK Visas and Immigration Support (formerly known as the UK Border Agency) set up by the Home Office.

2.5 Failed Asylum Seekers and Section 9 of the Asylum and Immigration Act 2004

Failed asylum seekers who are facing destitution can be signposted to UK Visas and Immigration for support under Section 4 of the Immigration and Asylum Act 1999.

If the individual is a failed asylum seeker with an application for humanitarian protection still pending a decision, the duty officer should signpost them to UK Visas and Immigration Support as the application should be treated in the same manner as an asylum application and UK Visas and Immigration Support may have a responsibility to support.


3. Procedures for Working with Families with No Recourse to Public Funds

Introduction

This guidance is for Social Workers working with families with No Recourse to Public Funds.  For the purpose of this guidance, ‘families' are defined as 'families presenting with their own children'. 

For people presenting with children for whom they say they are the primary care givers or relations or friends, Social Workers should be aware that these children are essentially 'separated' children, i.e. children who are outside their country of origin without the care and protection of their parents or legal guardian. Social Workers should work with these children with a view to ensuring their safety and welfare. The following procedures will guide this work:

What is Involved when Deciding to Assess?

Families with No Recourse to Public Funds usually present in different ways:

  • Self-referral without an appointment;
  • Self-referral or referral by an external agency, by appointment.

Social workers need to consider if there is a possibility or evidence to suggest that there are Child in Need concerns or the potential for child in need concerns. This may include health needs affecting the parent/s or children, for example, chronic health conditions, physical disabilities, learning disabilities, or safeguarding and child protection issues, e.g. neglect, domestic violence and abuse.

If there is a strong possibility of such needs as outlined above, the relevant social work team should commence an assessment within statutory timescales. Social Workers should note that Kirklees may have a duty of care even if the person has local connections in another area.

When interviewing the client, Social Workers should explore as fully as possible, existing sources of help and support in the community, voluntary groups, social networks etc.

Because of the 'No Recourse' status of the applicant, Social Workers will also have to check the following alongside the Child in Need assessment:

  1. Key documents;
  2. Local Connection;
  3. Immigration status;
  4. Destitution.

Use the assessment form which will ask clients for information on local connection, immigration status and destitution. This form should be completed as fully as possible with the client.

1.

Key Documents

 

a. The applicant must have sufficient identification although this may not be possible if, for example, the person is fleeing domestic violence and abuse. In such cases evidence should be established at a later date via the assistance of a solicitor or the Police;

 

b. If potential clients do not bring the necessary documentation on first presentation, the assessment can still go ahead, but they should be informed that any decisions regarding provision of support can only be made when they have provided the appropriate documents, and they should have all the required documents before another interview is arranged;

 

c. If the client needs an interpreter, arrangements should be made with the interpreter to inform the client of the documentation required. The documentation checklist in Appendix A: Documentation Checklist for the Assessment of People with No Recourse to Public Funds can be used for such purposes;

 

d.

Applicants should be asked to verify their identity and immigration status with the production of the following forms of identification:

  • Passports and birth certificates for all members of the family;
  • If available, travel documents like return air tickets;
  • Home Officer papers (Application Registration Card (ARC), application letters or refusal letters) and solicitors' letters; and
  • If available, bank account statements (most recent 3 months).

 

e. All identification documents supplied must be original documents;

 

f. If the applicant or any dependent's have health needs, they must provide any documented evidence of ill health or disability for any member of the family, e.g. OT reports, mental health/psychiatric reports.

2.

Local Connection

 

a. It is important to establish where the person has a local connection as it may be another local authority, not Kirklees, which has responsibility for this person;

 

b. Local connection criteria need not always apply. For example, if the person is at risk of violence if they return to the local authority where they have a local connection. Similarly, if there is evidence to suggest that there is a health or child care concern, Kirklees may have a duty of care even if the client has a local connection in another local authority;

 

c. It should be stressed to all clients that Social Workers will follow up on the contact details given by clients to make enquiries into local connection;

 

d. If it is established that the person has a local connection with another local authority but not Kirklees, Social Workers should refer the person to that local authority.

3.

Immigration Status of the Client

 

a. Kirklees Children and Young Peoples Services has nominated social workers and administrative assistant placed on the Home Office LA COMMS list. This mean that the nominated persons will be able to ring Home Office to check if the client has a 'live' asylum application, been refused asylum, or has some other application pending;

 

b. Social workers should have the documentation outlined in Key Documentation to establish the status and identity of the applicant and his /her dependents and this should be cross-referenced with the Home Office as fully as possible;

 

c. Social workers need to tell overstayers they have a duty to inform the Home Office as they have approached the local authority for assistance.

4.

Destitution

 

a. It is important to build up a clear picture of the client's circumstances and Social Workers need to assess if the client is indeed destitute, i.e. they have no means of supporting him/herself nor family or friends whom they can rely on for support;

 

b. Social Workers must consider if the information given by the client both verbally and in documented form is credible. If they do not think it is credible, they must be confident that there is enough evidence to the contrary (taking care to record this in the client's case file) otherwise we will be open to legal challenge.

Completion of Assessment

When an assessment is completed, the Social Worker should discuss the outcome of the assessment with their Team Manager.

The Team Manager will present the case to the Service Manager.

If the client is in need of urgent/immediate support, the Social Worker should seek legal advice and discuss the case with the Team Manager. Authorisation must be sought by the Team Manager from the Service Manager before any provision of immediate support.

The Service Manager is likely to respond in the following manner:
  • Yes - Accept client's application for support or agreeing to continue support;
  • No - reject client's application for support or terminating existing support;
  • Decision deferred pending the presentation of documents or further evidence.

Terminating Support

The decision to terminate support for an ongoing case should be made by the Service Manager. This needs to be informed with an up-to-date CIN assessment.

The Social Worker will need to inform the client if their support is to be terminated. This should be done in an interview, with the use of an interpreter if necessary.

The Social Worker should liaise with the administrative assistant to have a letter issued to the client the 28 day notice period from when support will terminate and to advise that the client has the right to seek legal advice if they disagree with the decision. This letter should be translated into the client’s first language as appropriate. 

Arranging and Administering Support

The social work team will make the arrangement and administration of support to families with No Recourse to Public Funds. This will include arranging for subsistence and accommodation search.

Social workers will need to ensure that any assessment authorising support for the family and outlining the needs of the family covers:

  • If the family needs an interpreter;
  • Special accommodation needs;
  • Health needs;
  • Length of support;
  • The legislation under which the family is being supported, e.g. Section 17 of the Children Act.

Rates of Financial Support

There is no legislation or government guidance that sets out the rates at which financial support (subsistence) should be provided to a family when a local authority has a duty to meet the needs of a child under section 17 Children Act 1989.

The courts have held that a local authority is responsible for deciding what level of services are appropriate to be able to meet a child’s needs in order to safeguard and promote their welfare, in line with its duties under section 17 Children Act 1989. However, this decision may be challenged if it is irrational, or incompatible with the human rights, or rights under European law, of those affected by the policy.

When determining the amounts of subsistence that should be provided, local authorities need to be mindful of their legal duties, what destitution means, relevant case law and the current benefit and asylum support rates.

Kirklees Council has decided to provide financial support in line with the National Asylum Service.

Provision of Accommodation

For families with No Recourse to Public Funds who require accommodation the following steps should be taken:

  1. The client and worker should identify the specific needs of the family taking into account location, type of property required;
  2. The worker should identify appropriate properties using the Kirklees Council’s approved list of registered landlords;
  3. The worker and client should view suitable properties and identify a suitable property taking into account the needs of the family and the location;
  4. Accommodation must be fully furnished;
  5. The worker will negotiate with the landlord the payment of the bond, rent and acquire the relevant information to make payment;
  6. The worker will obtain copies of documents indicating that all safety checks have been completed in relation to the property;
  7. The tenancy agreement will only be in the client’s name as this will facilitate future claims for benefits if leave to remain is granted;
  8. Kirklees Council will ensure that the landlord is paid rent on a monthly basis directly to his/her bank account and that Council tax is also paid;
  9. Worker will ensure that prior to and after the family move into the tenancy everything is in place;
  10. If the family is granted leave to remain at a future date the worker will meet with the landlord and client to clarify payment of rent, council tax and tenancy agreement. This will be confirmed in writing to the landlord and the tenant;
  11. The landlord and family has a duty to notify the local authority that they are in receipt of benefits/housing benefit and any over payment of rent to the landlord will be reclaimed by the local authority.

Contacting the United Kingdom Border Agency

The Social Worker should liaise with the council legal services to make an early notification to UKBA to inform them that Kirklees is providing funding and request that their applications are fast tracked.

Enquiry of the Home Office

The Social Worker will ensure that an enquiry is made to the Home Office using the Evidence and Enquiry Request Pro forma which should be sent to: evidenceandenquiry@homeoffice.gsi.gov.uk.

Form of Authority

If the parent has a solicitor or other legal representation, the Social Worker must ask the parent carer to sign a consent form, Form of Authority. By signing the Form of Authority, the parent carer is authorising their solicitors to release to Kirklees council the following:

  • Information relating to the person’s Immigration Status;
  • Details of any application made to UKBA and any correspondence relating to it;
  • Details of any Judicial Review brought with regard to their application to UKBA;
  • Any other information as may be requested that is relevant to the Assessment of Needs.

Once the Form of Authority has been signed, the Social Worker should send it to, and make an enquiry to the parent carer’s solicitor. The Social Worker should advise the solicitor of the assessment completion date and request a response in time to inform the recommendations of the assessment.

If the parent carer has no legal representation, it is in everyone’s best interest that they do so. The Social Worker should provide advice on this.

Independent Family Returns Panel

Under s. 54A Borders, Citizenship and Immigration Act 2009 (inserted by s.3 Immigration Act 2014), the Secretary of State must consult the Independent Family Returns Panel in each family returns case, on how best to safeguard and promote the welfare of the children of the family, and in each case where the Secretary of State proposes to detain a family in pre-departure accommodation, on the suitability of so doing, having particular regard to the need to safeguard and promote the welfare of the children of the family.

A family returns case is a case where a child who is living in the United Kingdom is to be removed from or required to leave the United Kingdom, together with their parent/carer. 

Pre-departure accommodation is a secure facility designed to be used as a last resort where families fail to co-operate with other options to leave the UK, such as the offer of assisted voluntary return.

The Panel may request information in order that any return plan for a particular family has taken into account any information held by other agencies that relates to safeguarding, welfare or child protection. In particular a Social Worker or Manager from the Children and Young Peoples Service may be invited to contribute to the Panel.


4. Documentation Checklist for the Assessment of People with No Recourse to Public Funds

DOCUMENTATION CHECKLIST FOR THE ASSESSMENT OF PEOPLE WITH NO RECOURSE TO PUBLIC FUNDS

All identification documents supplied must be original documents.

Social workers should:

  • View the original documents;
  • Take photocopies; and
  • File them in the client's folder.

If the applicant or any dependent's have health needs, they must provide any documented evidence of ill health or disability for any member of the family, e.g. OT reports, mental health/psychiatric reports.

Checklist:

  • Passports and birth certificates for all members of the family;
  • Home Officer papers (application letters, refusal letters, Application Registration Card (ARC)) and solicitors' letters;
  • Any official letters, utility bills, tenancy agreements which will proof address;
  • If available, travel documents like return air tickets;
  • If available, medical reports; and
  • If available, bank account statements (most recent 3 months).

End