• contents
• keywords and contacts
• quick guide
• values
• alerts and suggestions
• search
• minimum standards

Contents

1. Responsibility for Financial Support
2. Process
3. The Legal Background
   
   Who is Entitled to What: Glossary

1. Responsibility for Financial Support

The glossary sets out the details of support arrangements for different categories of families from overseas. The following is a summary.

Where a family is seeking to establish their legal right to remain in the UK by making:

• An application for asylum or
• An appeal against an asylum determination or
• An application to the Home Office on human rights grounds or
• An application to the Home Office for settlement on medical or compassionate grounds then:
  
  The responsibility for financial support of the family lies with the National Asylum Support Service (NASS) unless a family member has a community care need that is classified as the need of being looked after. In this case, it will be the responsibility of Wandsworth Council to meet all of their needs.

Where a family has been granted leave to remain in the UK, the responsibility for financial support falls to the benefit agencies.

Where a family falls within one of the categories of those to whom service provision by a local authority is restricted, the local authority’s powers to provide a service under S17 of the Children Act 1989 or under community care legislation are limited to the provision of temporary assistance and accommodation pending the family being granted leave to remain or their removal from the UK, or, in some cases, assistance with the costs of a voluntary return.

2. Process

In Wandsworth the first point of contact for a family with NRPF requesting a service is usually with an Initial Contact Worker at Wandsworth Children’s Services OR a case worker at The Ineligible Team in the Wandsworth Housing Department. The information gathered for discussion should include:

1. Immigration Status
2. Children’s Services Duties
3. Destitution
4. Enquiries to determine the above.

Copies of the following documents, if available, should be taken:

• Passports and birth certificates for all family members, marriage certificate,
• Home Office documents,
• Solicitor’s letter,
• Proof of address since arriving in the UK,
• Child benefit, child tax credit statement ,
• Child Health Record, bank statement (most recent – 3 months),
• Payslips (most recent – 3 months),
• National Insurance Card.

Local Authorities have a duty to inform the Home Office of any such person who they suspect or know is unlawfully present in the UK or is a failed asylum seeker (Para 14; Schedule 3; NIA Act 2002). The Wandsworth Ineligible Team will carry out an immigration status enquiry with UKBA for any family with NRPF requesting a service. Clients should be advised at their first point of contact that the Local Authority has a duty to notify the Home Office about their presence in the UK.

If a family is found to be eligible for Services under the Children’s Act, the Wandsworth Ineligible Team will, on behalf of Wandsworth Children’s Services, identify temporary accommodation for the family and set up financial assistance. Financial support to families with NRPF is paid in Wandsworth at a set rate of 80% of mainstream benefit rates. Services are provided pending further assessments by the NRPF Social Worker. The Ineligible Team Manager will make a referral to the Initial Response Team (IRT) Manager and NRPF Social Worker for a Child in Need Assessment and a Human Rights Assessment. The NRPF Social Worker needs to be notified of all cases of families with NRPF within Wandsworth Children’s Services.

• On receipt of a referral, the IRT based NRPF Social Worker must follow the usual processes for a Child and Family Assessment and enquiries under Sections 17/ 47 to determine the need of families for social work support, assistance and services under the Children Act 1989
• On the basis of the Child in Need Assessment the NRPF Social Worker will complete a Human Rights Assessment for the family. The Human Rights assessment will take into consideration the support needs of the family, determine whether withdrawal of support renders a family destitute and to determine if withdrawal of support is likely to breach a family’s Human Rights. The NRPF Social Worker must make a recommendation about continuation or cessation of support. The IRT Team Manager is responsible for confirming recommendations made by the NRPF Social Worker or making alternative recommendations.
• Once a Human Rights Assessment is completed, the case will be presented at the next internal Wandsworth Other Destitute's Panel which is comprised of representatives from Legal, Housing and Children’s Services. Based on the findings and recommendations made in the Human Rights Assessment the Panel will make a decision to either continue, to limit or to cease support to the family.
• If it is determined that a family can be expected to return to their country of origin and there are no legal or actual impediments preventing the family from doing so, Wandsworth Council can assist the family with travel costs or continue assisting the family until they return voluntarily to their home country with assistance of the International Organisation for Migration – IOM.
• The family will be issued with a withdrawal letter notifying the family when support is due to be withdrawn. The notice period has to be realistic to enable the family to make necessary travel arrangements or to access alternative support. The Wandsworth Ineligible Team Manager is responsible for drafting the withdrawal letter which needs to be approved by Legal Services before being sent out to the family.
• If a family does not wish to accept travel assistance offered and decides to remain in the UK under precarious circumstances, it will not constitute a breach of their Human Rights if Wandsworth Council withdraws support. However, a duty under the Children’s Act remains to any child facing destitution in such a situation and Wandsworth Children’s Services can look into accommodating a child under S20 in this case.
• Where the recommendation is, that the only service to be offered is accommodation under S20, or that only assistance should be offered to enable the family to return to their country of origin (e.g. EEA Nationals), the NRPF Social Worker and IRT Team Manager must make a decision based on legal advice.

3. The Legal Background

Asylum and immigration legislation has changed considerably over the past decade, and its interpretation has frequently been modified by case law. The following paragraphs are guidance to the law and not a statement of it. This guidance should not be used as the basis for decision-making on an individual case. Staff should seek legal advice whenever refusal or withdrawal of support to a family is being considered.

The relevant statutes are the British Nationality Act 1981, s54 and Schedule 3 of the Nationality, Immigration and Asylum Act 2002, which came into force on 8 January 2003, and s9 of the Asylum and Immigration (Treatment of Claimants) Act 2004 which came into force on 22 September 2004.

The 1981 Act provides that children take on the immigration status of their parents, whether they are born in the UK or elsewhere.

The combined impact of the 2002 and 2004 Acts is to restrict the local authority’s previously existing powers under either s17 of the Children Act 1989 or community care legislation to assist families who are deemed to be ineligible for support.

In the case of nationals of other European Economic Area states, and those with refugee status in those states, the assistance is limited to:

• Temporary financial assistance and accommodation pending the family’s return to their country of origin
• Assistance with the costs of return

Any such assistance must be made at the lowest practicable cost to the local authority. The Courts have held that “temporary” merely means “non-permanent”. There is no requirement that, for assistance to be treated as temporary, it must be short-term only. Where travel arrangements are made by the local authority, they must be made so that the person returns to his country of origin as soon as is practicable.

Assistance with support and accommodation may not be offered where a family unreasonably refuses to accept or does not make use of the assistance to return. Any such assistance must in any event be made at the lowest practicable cost to the local authority.

In the case of persons unlawfully in the UK, the assistance had been limited to temporary financial assistance while arrangements are made (by the Home Office or voluntarily) for their removal from the UK. Recent case law also suggests that local authorities may assist such persons with the costs of their return.

Where a person has unreasonably refused to leave the UK voluntarily following a failed asylum application, the family may only be supported for 14 days.

The 2002 Act confers a new duty on the authority to provide information to the Home Office on request about the whereabouts of individuals who the Home Office suspects to be unlawfully in the UK.

The objective of this recent legislation is to limit the power and discretion of local authorities to provide financial support to families who have no legal right to be in the UK.

In order to avoid legal challenge, when assessing and discharging its responsibilities the authority has to follow due process. The duty to assess need remains. Decisions should be communicated in a timely manner, in a way that families will understand, and be confirmed in writing.

Legal challenges to local authorities have been founded either on the basis of failure to follow due process or under articles 3 or 8 of the European Convention on Human Rights.

Article 3 provides that no person shall be subject to torture, or inhuman or degrading treatment or punishment. The trend of recent case law has been to confirm that, provided due process is followed:

• Requiring a person to live in another country is not inhuman or degrading treatment
• Neither is requiring someone to return or live in a country where standards of living, health care, education etc are far lower than the UK
• Provided that assistance is offered to enable a family to leave the UK, withdrawal of financial support when a family refuse to take up that assistance is not in itself inhuman or degrading treatment

Actions to withdraw support on the basis that a family may live in another country have, however, successfully been challenged on the following basis:

• Where a person is suffering from an HIV related illness, and the standard of medical care in their country of origin is such as to render their survival unlikely should they return (so called “HIV unwell” cases)
• Where a family have been in the UK for many years

Article 8 provides that persons have the right to respect for their private and family life, and their home and correspondence. Case law has tended to confirm that, provided due process is followed:

• This Article does not confer a right to carry on family life in the UK as opposed to elsewhere (for example, where one parent is unlawfully present but the other is not it has been held that it is open to the entire family to live elsewhere)
• The Article does not confer a right of entry to a person by virtue of a previously existing family relationship

Who is Entitled to What: Glossary

The definitions in the following glossary are based on a number of sources.

Term	Definition	Who Supports the Family
Accession countries	The 10 accession countries which joined the European Union (EU) on the 1st May 2004. These are: the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, the Slovak Republic, Slovenia, Cyprus and Malta.
Asylum seeker	A person who has applied to the government of a country other than their own for protection or refuge ('asylum') because they are unable or unwilling to seek the protection of their own government.	A family which has been accepted as asylum seekers are entitled to support from NASS and may not be supported financially by the local authority.
Asylum appellant	A person whose application for asylum has been turned down but who has an appeal pending against the decision to refuse.	Family is supported by NASS. May not be supported by the local authority.
Certified “clearly unfounded”	Certification under s94 Nationality, Immigration and Asylum Act 2002 prevents an asylum seeker whose claim is so certified from appealing against the refusal of asylum on either Refugee Convention or human rights grounds from within the UK. There is a presumption that certification will be issued to citizens of Republic of Albania; Bulgaria; Serbia & Montenegro (including Kosovo); Jamaica; Macedonia; Moldova; Romania; Bangladesh; Bolivia; Brazil; Ecuador; Sri Lanka; South Africa; and Ukraine. This list changes with time.	Local authority may offer temporary support pending removal only.
Destitution assessment	An assessment of whether a family has any means of support, and of whether the withdrawal of financial support would lead to genuine destitution.
Discretionary leave (DL or DLR)	Time limited permission to stay, granted where the Home Office does not accept that either refugee status or humanitarian protection is appropriate.	Entitled to assistance from public funds.
Exceptional leave (ELR)	Permission given to remain by the Home Office 'outside of the Immigration Rules', that is, for a reason not covered by the Immigration Rules. Asylum seekers who did not meet all the Refugee Convention criteria but whom the Home Office recognised could still not be returned used to be given ELR.	Abolished on 1 April 2003: replaced by DL or humanitarian protection. Was commonly given to unaccompanied asylum seekers from conflict areas.
European Economic Area	Countries that are members of the European Union together with Iceland, Liechtenstein and Norway
Failed asylum seeker	Someone who has applied for asylum, been refused and has no appeal pending.	Local authority may only assist for 14 days following refusal to co-operate with travel or removal arrangements.
Humanitarian protection	Leave to remain granted to asylum seekers who do not meet all the criteria to enable them to receive refugee status but whom the Home Office cannot return because there is a serious risk that their rights under Article 3 ECHR would be breached, they would be unlawfully killed or they would face the death penalty.	Entitled to assistance from public funds.
Human rights assessment	An assessment of whether a person or family’s human rights would be breached by withdrawal of support and/or return to their country of origin.
Illegal immigrant	A person who has entered the UK unlawfully.	Local authority may offer temporary support pending removal only.
Indefinite leave	This is leave to enter or remain in the United Kingdom without time restrictions. A person with indefinite leave can be said to be settled in the United Kingdom.	Entitled to assistance from public funds.
Limited leave	This is leave to enter or remain in the United Kingdom for a specified period of time. Conditions may be attached. Examples of such conditions are: restrictions on employment, requirement that persons maintain themselves without recourse to public funds or a requirement to register with the police.	Varies dependent on conditions attached.
Naturalisation	The process whereby adults who are not British may apply for British citizenship.
Ordinary residence	The country in which a person is normally living for the time being. If a person is not legally in a country that period does not count as ordinary residence.
Overstayer	Someone who remains in the United Kingdom beyond the period of the leave they have been granted.	Local authority may offer temporary support pending removal only.
Political asylum	The status granted to people in the United Kingdom who are recognised as refugees.	Entitled to assistance from public funds.
Right of abode	Right to enter the United Kingdom freely and without being subject to immigration control.	Entitled to assistance from public funds.
Refugee	A person who is unwilling or unable to return to the country of their nationality or former habitual residence because of a well founded fear of persecution on Convention grounds.	Entitled to assistance from public funds if their claim for asylum is accepted.
Registration	A further process for obtaining British citizenship, used for example by children, as well as persons who hold other kinds of British nationality (such as British Overseas citizens).
Settlement	A person is settled in the United Kingdom if they are ordinarily resident here without any restriction on the period for which they may remain.	Entitled to assistance from public funds.
Schengen group	All European Union countries except the United Kingdom, Ireland and Denmark. It is a group which established common immigration policy and common border controls, with no internal border checks. A Schengen visa entitles a person to travel to any of those countries.
Temporary admission	Method of admission given as an alternative to detention while the Immigration Officers are considering whether to allow someone in at a port of entry, or after refusal of entry and before removal, or when a person is treated as an illegal entrant, he or she may either be detained or released on temporary admission.	NASS support: may not be assisted by the local authority.
Temporary protection	A particular status that has been granted when large numbers of asylum seekers arrive from a particular region or country. Determination of refugee status is temporarily suspended.	NASS support: may not be assisted by the local authority.
Work permit	A work permit is issued to an employer by the Department for Education and Employment, Overseas Labour Service. The work permit enables an employer to employ a named worker in a specific job. There are several categories of work permit. Some may lead to indefinite leave, others do not (e.g. key worker permits). In some cases (TWES permits) an applicant undertakes to leave the United Kingdom at the end of the period granted, and may not normally return on a work permit for two years.	Not usually entitled to assistance from public funds.

End