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Families with No Recourse to Public Funds

SCOPE OF THIS CHAPTER

This sets out how Birmingham will support families with children who have no recourse to public funds (NRPF). It applies to situations in which a family has no legal entitlement to financial support or assistance from the state. If the family includes one or more children, they are likely to be children in need, and the Local Authority/Trust has a statutory duty under Section 17, Children Act 1989.

RELEVANT CHAPTER

Unaccompanied Asylum Seeking Children Policy

RELEVANT GUIDANCE

No Recourse to Public Funds Network Practice Guidance

Securing British Citizenship for Looked After Children (NRPF Network)

AMENDMENT

In April 2018, a link to Securing British Citizenship for Looked After Children (NRPF Network) was added to this chapter (above).


Contents

Abbreviations Used in this Chapter

  1. Who has No Recourse to Public Funds?
  2. Referral
  3. Screening
  4. Assessment
  5. Support and Refusal of Support
  6. Children with Needs Over and Above Destitution
  7. Partnership Interagency Issues
  8. Law
  9. Resources

    Appendix 1: Human Rights Assessment Tool


Abbreviations Used in this Chapter

CA1989 - The Children Act 1989. Section 17 of this Act gives the Local Authority/Trust a duty to safeguard and promote the welfare of children in need and to promote their upbringing by their own families by providing appropriate services.

EEA - The European Economic Area

IAA 1999 - Immigration and Asylum Act 1999. Section 115 of this Act defines which persons have no recourse to public funds, and which public funds this applies to.

NIAA 2002 - The Nationality, Immigration and Asylum Act 2002. Section 54 and Schedule 3 identify certain classes of persons who are ineligible to receive support from the Local Authority/Trust.


1. Who has No Recourse to Public Funds?

“No Recourse to Public Funds” applies to a person who is subject to immigration control in the UK and has no entitlement to welfare benefits or public housing. These restrictions are set out in s115, IAA 1999.

‘No recourse to public funds’ may be stamped on the visa of a foreign national living in the UK. If this is not stamped on the visa, it should be assumed that the person does have access to public funds.

Other groups of migrants who have no recourse to public funds include:

  • Asylum seekers;
  • Refused asylum seekers; and
  • Visa overstayers.

EEA nationals are not defined as ‘persons subject to immigration control’ under s115(9) IAA 1999 and so are not excluded from entitlement to welfare benefits. However, in order to be eligible for public funds, EEA nationals must have a ‘right to reside’ and satisfy the ‘habitual residence test’. In situations where EEA nationals fail to meet these requirements, the Local Authority/Trust may need to undertake an assessment of eligibility for accommodation and financial support under the Children Act 1989.

The Children's Trust’s responsibilities in such cases come from s17 CA 1989. The Local Authority/Trust has a duty to safeguard and promote the welfare of children in need in their area, and to promote their upbringing by their families, by providing appropriate services. The services may be provided to the family in general or to any member of the family, as long as they are provided with a view to safeguarding and promoting the child’s welfare. They may include providing accommodation and giving assistance in kind or in cash.

The Children's Trust aims to use its position as a commissioner and provider of services to ensure that children, young people and families with no recourse to public funds can achieve improved outcomes through the least intrusive intervention as set out in Right Services Right Time

The Children's Trust aims to ensure that families with no recourse to public funds have access to good quality accommodation and that this will be linked to help with welfare, health and advocacy that will contribute towards resolving their situation as quickly as is practicable.


2. Referral

Referrals may come through various routes, such as:

  • A charity/third Sector/voluntary organisation;
  • Local Authority/Trust services, e.g. Youth Offending Service;
  • A GP Practice or Health Visitor;
  • Housing (Local Authority/Trust or housing association);
  • Adult Social Care;
  • The Police;
  • A legal agency – Court, CAFCASS, Prison etc.;
  • An MP;
  • A school.

Referrals are made through the Children’s Information and Advice Service (Tel: 303 1888).

Referrers should complete a Multi-Agency Referral Form (MARF) and email this to cass@birminghamchildrenstrust.co.uk.


3. Screening

There is a two stage assessment process to determine whether Birmingham Children's Trust has a duty to support the family:

  • An eligibility test; and
  • An assessment of need (family assessment).

Eligibility Test

To satisfy the eligibility test it is necessary to establish three conditions:

  • The need arose in Birmingham; and
  • The family are destitute; and
  • The Children's Trust is not prohibited from providing support under s54 and Schedule 3 NIAA 2002.

To establish the first condition ask:

  • Do the family have a link with another Local Authority/Trust currently providing them with assistance? If so the family should be referred to them;
  • Can the family provide evidence of living in Birmingham? For example a child who attends a Birmingham school, their address on utility bills.

To establish the second condition ask:

  • Do the family have income or savings? Ask to be shown bank statements for the last 6 months and discuss how they have supported themselves financially to date;
  • Could others provide the family with help? Ask about their family, friends and acquaintances;
  • Do the family have any items of value they could sell?
  • Can the family be supported by other organisations?

Families with no recourse to public funds presenting as destitute will commonly seek provision of accommodation costs and subsistence under s17 CA 1989.

In establishing the third condition:

  • Schedule 3 of NIAA 2002 sets out several classes of persons who are ineligible for assistance under the Children Act 1989. In particular, the Local Authority/Trust cannot provide support to a family with an existing claim for asylum. In this situation the Home Office has a duty to provide support (s95 IAA 1999). Guidance about accessing support from the Home Office is available on Tel: 0808800630 (Mon-Fri 8.30 am – 7.00 pm; Multiple languages available);
  • If a family with children have failed in their asylum claim then support may be provided under s17 CA1989 – See Assessment of Need below;
  • To determine whether the restrictions on providing support under s17 CA1989 apply, it will be necessary to establish the family’s immigration status. It may be necessary to check with UK Visas and Immigration (previously the UK Border Agency):
As far as is practicable the email should include the applicant’s full name, date of birth, nationality and address in the UK. It is also useful to include the applicant’s passport number, biometric residence permit number, any aliases and/or their address in their country of origin.


4. Assessment

Assessment of Need

The assessment of need will take the form of a Family Assessment. This should establish whether any child of the family is a child in need and what support networks are available to the family as an alternative to support under s17, CA1989. The assessing worker should consider whether each child’s identified needs could be met by means such as:

  • Public funds for EEA nationals;
  • Home Office support to asylum seekers; or
  • Voluntary return for visa overstayers – provided that the child would not become a child in need in their country of origin and no breach of their human rights would result.

The family assessment should be completed, discussed and shared with the family. The assessment should come to a clear view, agreed by the team manager, about whether the children require provision as children in need. If the area resource panel agree, a child in need plan setting out what is to be provided will be produced and shared with parents.

The findings from that assessment should be incorporated into the Human Rights Assessment (see below).

Human Rights Assessment

The format for recording a human rights assessment is in the Practice Guidance.

A human rights assessment will consider whether there are any legal or practical obstacles to the family returning to their country of origin. If there are no such obstacles, the denial of support by the Local Authority/Trust does not constitute a breach of human rights.

There are substantial restrictions on the support that can be provided under s17, CA1989 to families that are unlawfully in the UK and to families granted asylum by another state in the EEA. Consequently provision of support to families is dependent on a Human Rights Assessment.

The Human Rights Assessment provides an opportunity to explore all of the options of a family who have requested support under s17 CA1989 but are excluded by Schedule 3 NIAA 2002. The relevant questions are:

  • Whether there are any legal or practical barriers to the family returning to the parent’s country of origin; and, if not:
  • Whether returning the family to the parent’s country of origin would constitute a breach of Article 3, 8, or 6 of the Convention on Human Rights; and
  • In the case of nationals of EEA countries, whether returning the family to the parent’s country of origin would constitute a breach of Community Treaty rights (right of free movement across the EEA).

The worker will consider the family’s rights under Articles 3, 8, and 6 of the Convention on Human Rights.

  • Article 3: “No one shall be subjected to torture or inhumane or degrading treatment or punishment”;

    The family may apply for asylum to the Home Office. If they are granted the status of asylum seekers they are entitled to support from the Home Office. If their application is refused, or their status as asylum seekers is revoked, the worker should seek advice from the NRPF lead (Tel: 0121 303 1888) and/or legal advice from jarteam@birminghamchildrenstrust.co.uk. The provision of services will normally cease immediately;
  • Article 8: “Everyone has the right to respect for his private and family life, his home and his correspondence

    The worker should establish how long the family have been in the UK and consider the network of relationships with family and friends – will it be disrupted if the child/parent is returned to their country of origin? The Home Office may have already considered Article 8 in responding to an application for asylum;
  • Article 6: “Right to a fair and public hearing

    While there are care proceedings in relation to a child, the parents will normally need to remain in the UK until the final hearing of those proceedings.

The worker must reach a conclusion as to whether the child would cease to be a child in need on returning to the parent’s country of origin. The assessment must also balance the views expressed by the parent and the information that is known to the Local Authority/Trust about the parent’s country of origin. This information can be obtained from a number of sources, including the Home Office country of origin information reports at GOV.UK.

The human rights assessment must conclude with the options that the Local Authority/Trust will offer the family in order to prevent a breach of human rights/community treaty rights. The options are:

  • To provide short term support in the UK under s17 CA 1989 and advise the family to seek advice from an immigration solicitor; or
  • To offer assistance to the family in returning to the parent’s country of origin

Domestic violence and access to public funds

If the family is fleeing domestic violence there is an exemption allowing recourse to public funds, providing the following criteria are met:

  • The person entered the UK or was given leave to remain in the UK as a spouse, civil partner, unmarried or same sex partner of a British Citizen or someone such as an EEA national who is present and settled in the UK; and
  • Their relationship has broken down due to domestic violence; and
  • The breakdown occurred before their leave to remain expired; and
  • They do not have the means to access accommodation or to support themselves and need financial help; and
  • They are going to make a claim to stay permanently in the UK under the Domestic Violence Immigration Rule.

The parent can make an application to UK Visas and Immigration for a change in status. A list of agencies able to assist in making this application is at the end of this Chapter.

If UK Visas and Immigration are satisfied that all the criteria apply they may grant the parent 3 month’s limited leave to remain, which will also allow access to women’s refuges and to apply for benefits. During this period the parent may make an application to remain permanently in the UK.


5. Support and Refusal of Support

Where the decision is that the family is entitled to the provision of financial subsistence from Birmingham Children's Trust, the Trust will pay to meet the essential living needs of families with NRPF. These rates are in addition to support provided for accommodation The rates below include payments for utilities.

The Rates (as at March 2016)
  Weekly Rate
Single Parent £35.39
Couple £68
1st Child £40
Each child thereafter £30
Nursing money £5 (expectant mother/child under 1 year)
Maternity grant £150 (first child), £100 (each subsequent child)

The overall level of financial support per family will be considered in line with the government’s cap on receipt of mainstream benefits, for example subsistence payments will not exceed the following:

£500 a week (for couples with child living with them)
£500 a week (for single parents whose children live with them)

This may mean the amount a family gets paid for subsistence will go down to make sure the total amount is not above the cap level. The subsistence and monies paid for rent and utilities cannot exceed the current benefit cap.

Why have we set these rates?

Birmingham Children's Trust pay subsistence payments to families who have no recourse to public funds and these financial circumstances place the children of the family ‘in need’ as defined by section 17(10) Children Act 1989.

Birmingham Children's Trust’s subsistence rates are in line with rates defined by the Secretary of State for the Home Office for those seeking asylum, under Section 95 of the Immigration and Asylum Act (1999). This legislation requires that provision for asylum seekers meets essential living need.

These rates ensure there is parity between families who require financial support to meet essential living needs.

Departing from the rates

The needs of each child/ family will be considered on a case by case basis when the Local Authority/Trust exercises its duty pursuant to section 17 Children Act 1989.

The amount of financial support may vary, for example:

  • Subsistence payments may be higher to meet the health and wellbeing needs of the child;
  • Subsistence payments may be higher if the child has specific additional needs;
  • Subsistence payments may be lower if the family are residing in accommodation which provides for essential living needs;
  • Subsistence payments may be lower if the family are in receipt of any other income.

Any proposal to fund families above the agreed rates above, needs to be agreed at Area Resource Panel where a clear rationale should be presented, based upon the child’s assessed needs. If there is any change in the circumstances of the family, the subsistence payments will be reviewed and recalculated if appropriate.

This policy will be made available to all families at the start of their service with the NRPF team or upon request. It is available on the Birmingham City Council website.

How payments will be made

Giro payments on a fortnightly basis. There is a current review of this to move to charge cards, loaded at the bank.

Where the family are not entitled to support from Birmingham Children's Trust, and have friends or family willing to support them, they should be advised to seek their support. The same applies when support is withdrawn following review of a child in need plan.

Where the family is not eligible and wishes to return to their own country; or where they are unlawfully present, the social worker should refer them to the International Organisation for Migration Tel: 020 7233 0001 or Freephone 0800 783 2332. The family’s travel costs may be provided. The Home Office, also offer Assisted Voluntary Returns.

Leaflets or posters, in any language, are available by contacting the Home Office local partnership manager on I&SDreferrals@homeoffice.gov.uk.

If the person is suspected of being unlawfully present in the UK or is a failed asylum seeker there is a duty to inform the Home Office. The social worker should do this by email to I&SDreferrals@homeoffice.gov.uk and send a copy to Legal Services.

If it becomes clear that s54 NIAA 2002 applies (the family is not eligible to receive services from Birmingham Children's Trust and refusal does not breach their human rights), the assessment should conclude with advice and support to return to the country of origin.

  • This decision should be communicated to them in writing with the report of the needs assessment and human rights assessment; and
  • Any services previously provided can continue for up to 28 days.

NRPF Connect

NRPF Connect will be a national database for Local Authorities/Trusts to record and manage their NRPF services and share information about cases with UK Visas and Immigration.

NRPF Connect will allow Local Authorities/Trusts and UK Visas and Immigration to share certain information regarding cases supported, identify any potential fraud and allow for joint resolution of cases. Resolution of cases includes granting leave to remain to those who cannot be reasonably be expected to leave the UK, and removing individuals who should not be in the UK but cannot be left homeless by the Local Authority/Trust.

The database will provide the necessary structure for Local Authorities/Trusts to accurately account for the NRPF cases they support under social services legislation and to share information with UK Visas and Immigration over a secure intranet system by making use of the Government Connect Secure eXtranet (GCSX). It will provide UK Visas and Immigration with the information required to track and monitor those families and individuals that have not left the country and remain in receipt of services through Local Authority/Trust assistance.

All families accepted by Birmingham as having NRPF status must be entered on NRPF Connect without delay, and NRPF direct must be regularly checked and updated to progress issues around families immigration status.


6. Children with Needs Over and Above Destitution

Care Leavers

Former unaccompanied asylum seeking children (UASC) whose asylum claims have been refused and whose appeal rights are exhausted have no recourse to public funds. However a young person who has been a looked after child for a period of more than 13 weeks is a “former relevant child” entitled to assistance from the Local Authority/Trust under Sections 23C -- 24B CA 1989.

The Hillingdon judgement in 2003 determined that a UASC would almost always be provided with accommodation under s20 CA1989. This means that most UASCs will be ‘looked after children’ and will become entitled to leaving care services when they reach the age of 18.

Leaving care duties continue to the age of 21, or until age 25 if the care leaver is in full-time education.

Families with a child that has a disability

Where a child has a disability, the Local Authority/Trust must assess the needs of the child and of the carer, and the carer’s ability to continue to care for the child. Asylum seeking families with a disabled child should be supported by UK Visas and Immigration, who should ensure that their accommodation meets the child’s needs. However any additional support that is required should be provided by the Local Authority/Trust where the child is living.

Safeguarding children

The refusal of support may raise safeguarding concerns for the child. This is particularly acute in regards to families affected by Schedule 3 NIAA 2002, who are barred from receiving Local Authority/Trust support. Local Authorities/Trusts have a general duty under s17 CA1989 to enable children to live with their families. Human rights issues under Article 8 HRA may also be raised.

It is good practice to find solutions to the destitution faced by the family. This may involve exploring options for families to return to their countries of origin, subject to a human rights assessment and a child in need assessment. It may also involve exploring opportunities to apply for leave to remain with the assistance of an immigration solicitor.

Children subject to orders under Section 8 of the Children Act 1989

When undertaking child in need assessments, workers should make enquiries about any court orders that apply to the child. Orders under s8 CA 1989 (Child Arrangements Orders, Prohibited Steps Orders and Specific Issue Orders) may affect the provision that can be offered to a family. For example a Child Arrangements Order may require a child to remain in the UK, or prohibit the child being taken out of the country for more than a stated period. However where such orders are in place it is open to a parent or other party (but not normally the Local Authority/Trust) to seek a variation of the order in the courts. Therefore if, for example, a child arrangements order directs that the child will live with one parent it may be appropriate for that parent to seek the permission of the court to remove the child from the UK.

Children subject to Care Proceedings

It would generally not be appropriate to expect a parent to leave the UK during the course of care proceedings as this could hamper assessments and fetter the court in making decisions in relation to a child. This would raise human rights issues, and normally UK Visas and Immigration will allow the parent limited leave to remain in the UK for the duration of the proceedings.

In PB v Haringey (2006), the court considered that there had not been a consideration of whether Article 8 HRA would be breached if the mother who was party to the Care Proceedings returned to her country of origin, as it would prohibit participation in assessments to inform the family proceedings court of who should care for the child.

The Local Authority/Trust may need to consider the provision of support to a family while assessments are underway.

Families who are ineligible for support after assessment

Families who are ineligible for Local Authority/Trust support after assessment should be referred to organisations that can help them return to their country of origin or travel arrangements should be made by the Local Authority/Trust. The Local Immigration Team in the Local Authority/Trust’s area should be notified that a Human Rights Assessment has concluded that there is no duty to support the family and what actions are planned as a result.

Non-EEA families should be referred to Refugee Action, which manages the assisted voluntary return programmes. The most relevant programme for families with NRPF is likely to be the Assisted Voluntary Return for Families and Children (AVRFC) Programme. The AVRFC Programme does not fund return for EEA national families.

Support provided to families as part of the AVRFC programme includes:

  • Planning for return - for example the journey from the airport to their home town / village, where they will live, what they would like to do, contacting family;
  • Applying for travel documents and booking flights;
  • Assistance at the airports, both in the UK and overseas if required;
  • Financial support with the flight, and in some cases for temporary help with reintegration;
  • Information on packages of support that may be available in the country of return including education, employment, training and business.

The family returns process

The family returns process was introduced by the Government in 2011 to meet its commitment to end the detention of children. The process is designed to facilitate the return of families with dignity, ensuring the welfare of children at all times.

The family returns process is facilitated through the Independent Family Returns Panel, consisting of a range of professionals, to ensure return plans take full account of the welfare of children involved. Families outside the asylum process, such as visa overstaying families, are included in this process. However Local Authorities/Trusts cannot refer into the project, as it is managed centrally by UK Visas and Immigration.

Parents who refuse to return to their country of origin after assessment

If a parent refuses the offer of assistance in returning home and intends to remain in the UK unlawfully, considerable concerns arise with regards to the wellbeing and safety of the child/children. However, if:

  • The Local Authority/Trust has carried out the necessary assessments in line with their legal duties; and
  • It has concluded that the family can freely return to the country of origin without a breach of Human Rights or Community Treaty Rights; and
  • The applicant then refuses an offer of assistance in returning home,

Then any degradation caused will not result from a human rights breach by the Local Authority/Trust, but from the applicant’s own decision to refuse the offer of assistance. This was confirmed by the judgement in R (Kimani) v Lambeth.

In such circumstances, it is good practice to undertake the following steps:

  • Liaise with the Local Immigration Team so that the case is given priority by UK Visas and Immigration;
  • Confirm with the relevant embassy and/or UK Visas and Immigration whether the family have valid travel documents in order to facilitate the family’s removal from the UK;
  • Work with UK Visas and Immigration to ensure that the children are not left in the UK homeless and destitute and in breach of Immigration Rules.

If the parent informs the Local Authority/Trust that they have found friends or family who will support them, enquiries should be made as to the nature of the support that will be provided and whether this will be adequate to meet the children’s needs.

If the family move to stay with friends or family in a different Local Authority/Trust area, the following steps should be taken:

  • Make a referral to Children’s Services in the new Local Authority/Trust, providing a copy of the completed child in need assessment, the findings of the Human Rights Assessment and the decision to withhold/withdraw support under Schedule 3 NIAA 2002;
  • Ensure that all safeguarding issues are fully addressed (links established with GP, schools informed, etc.);
  • Inform other agencies involved in the family’s support of the outcome of the assessments and of the new address.

At all stages in this process, the offer of voluntary return and a re-settlement package should be kept open to the family, allowing maximum time for enforced removal to be avoided.

Families who are granted indefinite leave to remain in the UK

When families supported under CA 1989 are granted leave to remain in the UK, they no longer have no recourse to public funds and are entitled to work and/or access mainstream benefits. Families may require support in making the transition from social services support and it is good practice to make referrals to the agencies listed below. Reasonable flexibility may be required in this transition period to allow for potential delays in documents being issued and support provided.

Adults requiring National Insurance numbers should call 0845 600 0643. This is the first step in accessing benefits or employment. In order to apply for benefits, families should be referred to Jobcentre Plus. Families may wish to seek advice from Citizens Advice Bureau or welfare rights services to discuss their options and entitlements.

In order to access housing support, families should be referred to Local Authority/Trust housing departments. If the family would like to stay in their current accommodation, options to transfer existing license agreements into tenancies using Housing Benefit should be explored with the landlord.

Adults with social care needs should be referred to the relevant Local Authority/Trust department for an assessment under community care legislation and consideration for a personal budget.

It is good practice on terminating support under s17 CA 1989 to write to the family explaining why this support is finishing and what the implications of this will be. Any organisations involved in the care of the family should also be informed of their changing circumstances.


7. Partnership Interagency Issues

Children's Social Care work with third sector agencies in assisting children and families. Bi-Annual events of the partnership are held.

Housing

Currently the provision for housing is under review and we are moving towards commissioning and procuring accommodation to ensure there is a consistent approach to offering good quality accommodation to children and families with NRPF.

Access to education

The “No Recourse to Public Funds” condition does not apply to a child’s access to education as this is not a “public fund”. Primary and secondary education remains free of charge to children under the age of 18, irrespective of immigration status. These children may also be entitled to free school meals as they are also not a public fund.

Click here for information about support for post-secondary education.

Access to healthcare

There are separate eligibility processes for people subject to immigration control accessing healthcare provided by the NHS. Click here for more information.


8. Law

The following legislation is relevant to this area of work:

Please see:

Key case law for families and children leaving care with NRPF:

  • Ruiz Zambrano (European citizenship) [2011] EUECJ C-34/09;
  • ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4;
  • R (SO) v London Borough of Barking & Dagenham [2010] EWCA Civ 1101;
  • Teixera v Lambeth London Borough Council [2010] EUECJ C-480/08;
  • Birmingham Children's Trust v Clue [2010] EWCA Civ 460;
  • Blackburn-Smith v Lambeth London Borough Council, Court of Appeal [2007] EWHC 767 (Admin);
  • PB v Haringey London Borough Council [2006] EWHC 2255 (Admin);
  • The Queen (on the application of AW) v London Borough of Croydon and The Queen (on the application of A, D, and Y) v London Borough of Hackney & Secretary State (interested party) [2005] EWHC 2950 QB;
  • R (Limbuela) V Secretary of State for the Home Department [2004] EWCA Civ 540;
  • M v London Borough of Islington and another [2004] EWCA Civ 235;
  • R (on the application of Kimani) v Lambeth London Borough Council [2003] EWCA Civ 1150.


9. Resources

National Domestic Violence Helpline
www.nationaldomesticviolencehelpline.org.uk

Phone: 0808 2000 247

BAWSO
www.bawso.org.uk
Phone: 0800 731 8147

Men’s Advice Helpline
www.mensadviceline.org.uk
Phone: 0808 801 0327

Refuge
www.refuge.org.uk
Phone: 0808 2000 247

Rights of Women
www.rightsofwomen.org.uk
Phone: 0207 251 6577

Southall Black sisters
www.southallblacksisters.org.uk
Phone 0208 571 0800

Women’s Aid
www.womensaid.org.uk
Phone 0808 2000 247


Appendix 1: Human Rights Assessment Tool

Click here to view Appendix 1: Human Rights Assessment Tool.

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