Families with No Recourse to Public Funds

Abbreviations Used in this Chapter

CA1989 - The Children Act 1989. Section 17 of this Act gives the 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?

The NRPF immigration condition applies to a person who is subject to immigration control in the UK and has no entitlement to welfare benefits or public housing. The definition of "subject to immigration control" is set out in section 115 of the Immigration and Asylum Act 1999.

A person subject to immigration control cannot claim public funds (benefits and housing) unless an exception applies.

A person will be subject to immigration control when they have one of the following types of immigration status:

• Leave to enter or remain in the UK, which is subject to the 'no recourse to public funds' (NRPF) condition, such as:
  • Leave to enter as a visitor;
  • Leave to remain as a spouse;
  • Leave to remain as a student;
  • Leave to remain granted under family or private life rules.
• Leave to enter or remain which is subject to a maintenance undertaking, such as:
  • Indefinite leave to remain as the adult dependent relative of a person with settled status (five-year prohibition on claiming public funds).
• Leave to enter or remain because of a pending immigration appeal:
  • This can apply when a person has section 3C leave whilst an appeal against a refusal of leave to remain is pending.
• No leave to enter or remain when they are required to have this, such as:
  • A visa overstayer;
  • An asylum seeker;
  • An appeal rights exhausted (ARE) asylum seeker.

When a person has leave to enter or remain that is subject to the NRPF condition, the term 'no public funds' will be stated on their residence permit, entry clearance vignette, biometric residence permit (BRP), or digital status.

'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. Although sometimes there are no visas or stamps on passports but the person may still effectively be NRPF.

The position in respect of EEA nationals and their family members is complex. EEA nationals are now subject to the same immigration laws and entry requirements as non-EEA nationals. However, the residence rights and entitlements of EEA nationals and their family members who were living in the UK before the end of the transition period are protected by the Withdrawal Agreement. The NRPF network have provided fact sheet guidance for Local Authorities which can be found on the NRPF Network website.

See further below at Section 6, EEA Nationals and Family Members and Appendix 1: EEA Nationals and Family Members.

EEA nationals are now in different immigration status groups.

• Granted settled or pre-settled status under the EU Settlement Scheme;
• Pending 'in-time' EU Settlement Scheme application (made before the deadline of 30 June 2021);
• Pending late EU Settlement Scheme application;
• Granted leave to enter on/ after 1 January 2021 to visit, work, or study etc;
• Family members with an EU Settlement Scheme Family Permit;
• Unlawfully present - a person will be in this position if one of the following scenarios apply:
  • They have an entitlement to apply to the EU Settlement Scheme but missed the deadline to apply;
  • They are refused status under the EU Settlement Scheme (and any subsequent appeal is unsuccessful);
  • They have overstayed a grant of leave to enter or remain.

Rules on eligibility for benefits and homelessness assistance are complex and an EEA national may require specialist advice.

Where a person has pre settled status, to be eligible for public funds, EEA nationals must have a 'right to reside' as a worker, self-employed person or a family member of such a person and satisfy the 'habitual residence test'. In situations where EEA nationals fail to meet these requirements they are often referred to as having no recourse to public funds. the Local Authority/Trust may need to undertake an assessment of eligibility for accommodation and financial support under the CA 1989.

An EEA national who is unlawfully present will be subject to immigration control (section 115 Immigration and Asylum Act 1999) and will be excluded from claiming public funds. In these circumstances where a family is destitute and seeking support Schedule 3 of the NIAA Act 2002 bars the provision of support under Section 17 and a human rights assessment is required.

These details in respect of EEA nationals are expanded further at Section 6, EEA Nationals and Family Members and Appendix 1: EEA Nationals and Family Members.

The Trust's duties and powers in such cases derive from section 17. The 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, if 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 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 Help, Right Time.

The 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.

1b. Who has Recourse to Public Funds?

People with the following types of immigration status WILL have recourse to public funds:

• Indefinite leave to enter or remain, or no time limit (apart from adult dependent relative);
• Right of abode;
• Exempt from immigration control;
• Refugee status;
• Humanitarian protection;
• Leave to remain granted under the family or private life rules, where they are accepted by the Home Office as being destitute or at risk of imminent destitution;
• Hong Kong BN (0) leave, where they are accepted by the Home Office as being destitute or at risk of imminent destitution;
• EEA national or family member with settled status;
• Pre-settled status granted under the EU Settlement Scheme, although they will need to satisfy a right to reside test to qualify for benefits and housing assistance;
• Discretionary leave to remain, for example:
  • Leave granted to a person who has received a conclusive grounds decision that they are a victim of trafficking or modern slavery;
  • Destitution domestic violence concession;
  • UASC leave.
• Limited leave to remain granted under family and private life rules where the person is accepted by the Home Office as being destitute or at risk of imminent destitution. The High Court in ST (a child, by his Litigation Friend VW) & VW v Secretary of State for the Home Department [2021] EWHC 1085 (Admin) held that immigration caseworkers, when deciding whether to accept that the applicant is 'destitute or at risk of imminent destitution' are required to 'have regard to the need to safeguard and promote the welfare' of any children involved in the application, in accordance with section 55 Borders, Citizenship and Immigration Act 2009.

There may be instances when a person does not have a document to confirm their immigration status. A person in this position should not automatically be refused a service without further investigation into their circumstances to ensure that they are not wrongly denied a service they may be entitled to.

2. Referral

Referrals may come through various routes, such as:

• Self-referral by the family;
• A charity/third Sector/voluntary organization;
• Local Authority/Trust services, e.g., Youth Offending Service;
• A GP Practice or Health Visitor;
• Housing (services or housing association);
• Adult Social Care;
• The Police;
• A legal agency - Court, CAFCASS, Prison etc;
• A Member of Parliament or Councillors;
• A school.

Referrals are made through the Children's Information and Advice Service ('CASS') - (Tel: 0121 303 1888)

Referrers should complete a Request For Support Form.

CASS will consider the following criteria before referring all no recourse to public funds families through to the specialist NRPF Team:

• Did the need arise in the Trust geographical area?
• Are the family destitute?
• Whether the family is subject to immigration control and consequently the Trust is prohibited from providing support under s54 and Schedule 3 NIAA 2002; and
• Whether the referral concerns a Zambrano carer or EEA national who has no recourse to public funds.

To establish whether the need arose in Birmingham the Trust will ask:

• Do the family have a link with another Local Authority currently providing them with assistance? If so, the family should be referred to that Local Authority;
• Can the family provide evidence of living in Birmingham or being present in the city in some other way? For example, evidence of a child who attends a Birmingham school, their address on utility bills etc.

To establish whether the family are destitute the Trust will ask:

• Does the family have income, savings, or assets? Evidence will be required of bank statements for a minimum of 6 months if available and they have a bank account and there will be an investigation of how they have supported themselves financially to date;
• Could others provide the family with help? For example family and friends;
• 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. The Trust's duties and powers to make this provision is under section 17.

To establish whether the Trust is prohibited from providing support under s54 and Schedule 3 NIAA 2002 an inquiry will need to be made of the immigration status of the family.

In establishing the legal condition:

• Schedule 3 of NIAA 2002 sets out several classes of persons who are ineligible for assistance under the Children Act 1989. These are known as excluded groups. Before assistance can be provided to someone in an excluded group the Trust must carry out a human rights assessment to consider whether their human rights will be interfered with as a result of destitution if support is not provided and whether that person's human rights may be preserved through a return to their country of origin. The law and guidance is complex however if the result of the assessment is that a family cannot reasonably be expected to leave the UK and a child is assessed as being in need support should be provided under Section 17;
• The 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 are available);
• If a family with children has failed in their asylum claim then support may be provided under section 17 - See Assessment of Need;
• To determine whether the restrictions on providing support under section 17 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):
  • In urgent cases contact must be made with the West Midlands Immigration Compliance and Enforcement Team for advice;
  • For non-emergency and subsequent checks staff should use the official gateway to obtain an immigration status check by email to: EvidenceandEnquiry@homeoffice.gov.uk.

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.

3. No Recourse to Public Funds (NRPF) Team - Service Offer

The Children and Families No Recourse to Public Funds (NRPF) Team is a specialist city-wide team that offers a service to children in need who are destitute when they are:

1. Currently within the Trust geographical area;
2. Their parents have no recourse to public funds due to their immigration status including Zambrano Carers and EEA nationals;
3. Their parents have no capital resources or other sources of basic income or support.

When a child's parents have no recourse to public funds, they may also be restricted from engaging in employment and/or accessing welfare benefits and other provision such as social housing. Families subject to immigration control have no right to reside in the UK. EEA nationals may have a right to reside depending on their status.

If the family is destitute and does not seek to return to their country of origin and is subject to immigration control, the NRPF Team will undertake a Human Rights Assessment and a Family Assessment and a Child in Need Plan may be put in place.

Assessed interim subsistence and accommodation through section 17 will be provided to avoid destitution and homelessness. Child in Need Plans are reviewed on a three monthly basis and remain in place until the parent's immigration status changes. The team is connected to the NRPF Connect Home Office database to track changes in families and communicate with the Home Office.

Where other Trust Social Work teams are working with NRPF children, it is important that close liaison with the NRPF Team is maintained, although all families subject to immigration control, Zambrano carers and EEA nationals with no recourse to public funds will be referred to and will be assessed and supported by the NRPF Team.

The NRPF Team will work with other agencies and parts of the Council to check if each family is genuinely destitute. The team also conducts human rights assessments to inform judgments about ending financial support where families can safely return to their home country.

Similarly, if a child supported in the NRPF Teams comes into care for over four weeks, the child's case will transfer to the local Children in Care Team. NRPF Team will continue to be available to advise and maintain NRPF Connect etc where children are subject to a Child Protection Plan or in care in another team.

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 section 17. The assessing social 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 proceeding to Child in Need then a Child in Need Plan setting out what is to be provided will be produced and shared with parents and professionals.

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

Human Rights Assessment

The format for recording a human rights assessment is in the NRPF, HRA template.

A human rights assessment is carried out when the exclusion under Schedule 3 NIAA 2002 applies and will consider:

1. Whether a failure to provide support in circumstances where the child or family is destitute will amount to a breach of their human rights; and
2. 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 Trust does not constitute a breach of human rights and obligations to the family can be met through offering to assist a return home. Legal advice must always be sought before reaching such a conclusion as the law in this area is complex.

There are substantial restrictions on the support that can be provided under section 17 to families that are unlawfully in the UK and to families granted asylum by another state in the EEA.

When an EEA national is lawfully present a human rights assessment should not be undertaken. A human rights assessment should only be undertaken where an EEA national is "in breach of immigration laws".

Consequently, provision of support to families subject to immigration control and fall within an excluded group under Schedule 3 of NIAA 2022 is dependent on a Human Rights Assessment.

The Human Rights Assessment provides an opportunity to explore all the options of a family who have requested support under section 17 but are excluded by Schedule 3 of NIAA 2002. The relevant questions are:

• Whether a failure to provide support in circumstances where the child or family is destitute will amount to a breach of their human rights;
• 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 and 8 of the European Convention on Human Rights; and
• In the case of nationals of EEA countries unlawfully present, 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 social worker will consider the family's rights under Articles 3 and 8 of the European Convention on Human Rights.

• Article 3: "No one shall be subjected to torture or inhuman 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. 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.

In addition if there are ongoing care proceedings in relation to a child, the parents will normally need to remain in the UK until the final hearing in order to ensure there is no interference with Article 6 rights.

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 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 Trust will offer the family to prevent a breach of human rights/community treaty rights. The options are:

• To provide short term support in the UK under section 17 and advise the family to seek advice from an immigration solicitor; or
• To aid 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
• Their relationship has broken down due to domestic violence
• The breakdown occurred before their leave to remain expired
• 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 OSIC solicitors / immigration advisors is available via the Office of the Immigration Services Commissioner website.

If UK Visas and Immigration are satisfied that all the criteria apply, they may grant the parent 3 months 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 accommodation and financial support from the Trust, it will provide support. Further details can be found in a separate policy:

• Financial Support Policy.

Where the family is not eligible and wishes to return to their own country; or where they are unlawfully present and a human rights assessment has concluded that their rights would not be breached by a return to their country of origin, the assessing 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 many languages, 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.

If it becomes clear that s54 NIAA 2002 applies (the family is not eligible to receive services from the 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 the family 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 - Checking Immigration Status

When a family requests accommodation and/or financial support from the NRPF Team, the team will need to establish nationality and immigration status of the parents and children during the assessment.

NRPF Connect is 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 allows 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 provides the necessary structure for Local Authorities/Trusts to accurately account for the NRPF families they support under social services legislation and to share information with UK Visas and Immigration over a secure intranet system. It provides 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 Authorities/Trusts' assistance.

All families supported by the NRPF Team will be entered onto NRPF Connect and NRPF Connect will be regularly checked and updated to progress issues around family's immigration status. The exception are EEA nationals who are lawfully present and not subject to immigration control.

6. EEA Nationals and Family Members

The EEA is made up of all the European Union (EU) member states, plus Iceland, Lichtenstein, Switzerland and Norway.

EEA nationals are required to obtain leave to enter or remain to visit or live in the UK. Unless a person is coming to the UK for a short visit, they will need to apply for a visa in advance of their arrival. For example, if a person intends to work in the UK, they must apply for a visa under a specific category of the Immigration Rules and meet the corresponding requirements.

E-visas or a digital status will be issued to EEA nationals rather than physical status documents.

An EEA's national's immigration status will determine their entitlements to benefits, housing assistance and other services.

An EEA national or their family member could have one of the following types of immigration status:

• Settled status (indefinite leave to remain) granted under the EU Settlement Scheme;
• Pre-settled status granted under the EU Settlement Scheme (5 years' limited leave to remain);
• A pending EU Settlement Scheme application;
• Leave to enter for a specific purpose, such as to visit, work, or study (granted after 1 January 2021);
• No lawful status (the person may still be entitled to apply to the EU Settlement Scheme.

EU Settlement Scheme

The residence rights of the EEA nationals and their family members are protected by the Withdrawal Agreement.

The following people must apply to the EU Settlement Scheme to evidence their residence rights:

• EEA nationals and their family members (EEA or non-EEA nationals) who were living in the UK by 11pm on 31st December 2020;
• Non-EEA nationals with derivative rights (e.g. Zambrano carers) who were living in the UK by 11pm on 31st December 2020;
• Close family members and future children of EEA nationals with settled or pre-settled status (who may not yet be in the UK).

The deadline to apply to the EU Settlement Scheme was 30th June 2021 but the Home Office will accept a late application from a person who can demonstrate that they have a reasonable excuse for missing the deadline. A late application can also be made by joining a family member who has an EU Settlement Scheme family permit and has not applied within three (3) months of entering.

Visitors (entering on/after 1st January 2020)

EEA nationals entering the UK without valid leave to remain, or a prior entry clearance will be treated as standard visitors. They will not be issued with any physical or digital evidence of their immigration status, so a person who enters as a visitor will need to be aware of the date that their leave to enter expires. They will also need to be aware of the conditions that apply to them whilst they are in the UK.

EEA nationals without lawful status

There are several different circumstances that could apply to an EEA who has no lawful status in the UK. For example, the person could:

• Be a visa overstayer, such as a person who entered as a visitor and remained in the UK beyond six months without making an application to the Home Office to extend their leave;
• Have been living in the UK by 11pm on 31st December 2020 but have not made an application to the EU Settlement Scheme;
• Have applied to the EU Settlement Scheme and been refused settled and pre-settled status (following an unsuccessful administrative review or appeal).

When an EEA national does not have any documentation, further questions may need to be asked about their residence history to establish whether the person has:

• An entitlement to apply to the EU Settlement Scheme;
• Valid visitor leave.

Settled status

A person with settled status will be eligible for recourse to public funds.

Pre-settled status

A person with pre-settled status (five years' limited leave to remain) granted under the EU Settlement Scheme will need to be exercising a qualifying right to reside to be eligible. For example, a person will have a qualifying right to reside if they can show that they:

• Are working or have retained their workers status, such as during a pregnancy;
• Are self-employed or have retained their self-employed status;
• Have a permanent right to reside;
• Are a family member of an EEA national who is exercising a qualifying right to reside;
• Are a family member who has retained right to reside, which may be possible following a divorce or the death of their EEA family member;
• Are the primary carer of a child, who is in education and whose parent is an EEA national who has worked in the UK.

If the person is a worker or self-employed person, they will need to show that they meet a minimum earnings threshold for at least three (3) months (the level of which National Insurance contributions start to be paid), or that their work is 'genuine and effective'.

A person with pre- settled status will be ineligible for means-tested benefits if one of the following applies to them:

• They are not exercising a right to reside;
• Their only right to reside is as a jobseeker or initial right of residence.

A person who has the right to reside as a jobseeker, a self-sufficient person, a student of a family member, or as the primary carer of a self-sufficient child, will only be able to claim Child Benefit and Child Tax Credit (which is now only available in limited circumstances).

In December 2021, the Supreme Court in Fratila v the Secretary of State for Work and Pensions found that it is lawful on discrimination grounds to exclude pre-settled status from being a qualifying right to reside for the purpose of claiming Universal Credit. This means that people with pre- settled status who do not have a qualifying right to reside will continue to be unable to access means- tested benefits. Anyone with pre-settled status who is refused benefits should seek advice from a benefits advisor.

A person can rely on their pre-settled status to meet the residence requirement for Personal Independence Payment, Disability Living Allowance, Attendance Allowance and Carer's Allowance. However, these benefits are not intended to cover person's basic living or housing costs.

A person with pre-settled status may not qualify for benefits or homelessness assistance if they are unable to work due to a disability, health issue, or caring responsibilities.

Zambrano carers

Until 30th June 2021, a non-EEA national primary carer of a British citizen, usually a child, had a derivative right to reside under European law as a Zambrano carer. The EU Settlement Scheme has been open to Zambrano carers but a Home Office policy prevented Zambrano carers from being able to obtain pre-settled or settled status if they had already been granted a different form of leave to remain under the Immigration Rules as a sole carer of a British child.

Following a Court of Appeal judgment, the Home Office published updated guidance on 13th June 2022 which gave current Zambrano carers a window of 6 weeks to apply for settled status and to be deemed to have reasonable grounds for having missed the 30th June 2021 deadline to apply. Any application made after 25th July 2022 would have to show that there were reasonable grounds for missing the 30th June 2021 deadline.

7. 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 as they will be in an excluded group as defined in Schedule 3 of NIAA 2001.

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 Trust under Sections 23C -- 24B CA 1989 provided they are not a member of an excluded group.

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.

NRPF Families with a child that has a disability or additional needs

Where a NRPF carer has a child with a disability or additional needs, the Trust will 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 Trust if they reside within the geographical boundaries of the Trust.

A child may be "in Need" because they are disabled. Alternatively, a child may have a disabled parent. The Trust recognises that persons with disability sometimes have higher support needs than others. Accordingly, if an assessment identifies a need for extra Section 17 support, consideration will be given to this with the final decision on its implementation being that of the Manager.

Safeguarding children

The refusal of support may raise safeguarding concerns for the child. This is particularly acute for families affected by Schedule 3 of NIAA 2002, who are barred from receiving the Trust's support unless the bar is lifted following a human rights assessment. The Trust has 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 and will be considered within the context of a Human Rights assessment.

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 of 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 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 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 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 the Trust's support after an assessment should be referred to organisations that can help them return to their country of origin, or travel arrangements should be made by the Trust. The Trust's legal team 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 hometown / 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, always ensuring the welfare of children.

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. The Secretary of State must consult the Panel in each case. Families outside the asylum process, such as visa overstaying families, are included in this process. However, the Trust 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 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 their Human Rights; and
• The applicant then refuses an offer of assistance in returning home.

Then any concerns that arise will not result from a Human Rights breach by the 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 Trust's Legal 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 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 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 area, the following steps should be taken:

• Make a referral to Children's Services in the new Local Authority, 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 of 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 will be able to access 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 apply online or call the Helpline on 0800 141 2079 for assistance. This is the first step in accessing benefits or employment. To apply for benefits, families should be referred to Job Centre Plus. Families may wish to seek advice from Citizens Advice Bureau or welfare rights services to discuss their options and entitlements.

To access housing support, families should be referred to Birmingham City Council housing directorate. If the family seek to stay in their current accommodation, options to transfer existing license agreements into tenancies using Housing Benefit should be explored with the landlord/ Housing taking into consideration housing availability for presenting NRPF families.

Adults with social care needs should be referred to the relevant Birmingham City Council Adults Team for an assessment under community care legislation and consideration for a personal budget.

It is good practice on terminating support under section 17 to write to the family explaining why this support is being withdrawn 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.

8. Partnership Interagency Issues

The Trust works with third sector agencies in assisting children and families.

Housing

The provision of Housing to the NRPF Team is commissioned and reviewed at the end of each contract cycle 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". All children, regardless of their immigration status, can receive free education at a primary or secondary school from the age of 4 to 16 years old, continuing to age 18 if they are attending sixth-form or college.

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

Free school meals

Eligibility for free school meals has now been permanently extended to children from all families with no recourse to public funds.

See also: GOV.UK, Providing free school meals to families with no recourse to public funds (NRPF).

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.

9. Resources

RMC offices:

Wolverhampton/Head Office
info@rmcentre.org.uk
Phone 01902 311 554

Birmingham Branch
info@rmcentre.org.uk
Phone 0121 374 0140

Walsall Branch
info@rmcentre.org.uk
Phone 01922 614 221

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

Baobab Women's Project
baobabwomensadvocate@gmail.com
Phone 07847271022

Black Country Women's Aid
Home - Black Country Womens Aid
Phone: 0121 553 0090

Brushstrokes Project
Phone: 0121 565 2234
Facebook: www.facebook.com/BrushstrokesProject
Website: www.brushstrokessandwell.org.uk

Find an immigration Adviser within West Midlands
The Adviser Finder, lists advisers who are regulated by the OISC. Other advisers who provide immigration advice and services, such as practising solicitors, barristers, and legal executives, are not found on this list.

Citizens Advice Bureau:
Birmingham City Centre Citizens Advice

Birmingham CAB Telephone Advice Service
Telephone Advice Line:
0808 278 7990
Lines are open Monday to Friday from 9.30am to 4.30pm.

Citizens Advice Consumer Service:
0808 223 1133
Lines are open Monday to Friday 9.00am to 5pm.

Sandwell & Walsall Citizens Advice
Advice Line 0808 278 7812
Debt – 0800240 4420

Sandwell (Smethwick) Citizens Advice
Email: smethwick@citizensadvicesandwell-walsall.org
Unit 6, Tollgate Shopping Precinct, Smethwick, B67 7RA

Sandwell (West Bromwich) Citizens Advice
SWEDA, Church Street, West Bromwich. B70 8RP

Sandwell (Oldbury) Citizens Advice
Email: swan@citizensadvicesandwell-walsall.org
Municipal Buildings Halesowen Street, OLDBURY, West Midlands, B69 2AB

Citizens Advice Solihull Borough
www.citizensadvice.org.uk
176 Bosworth Drive Chelmsley Wood, SOLIHULL, West Midlands, B37 5DZ
0808 278 7976

Appendix 1: EEA Nationals and Family Members

The immigration requirements for European Economic Area (EEA) nationals and their family members have significantly changed following the UK's departure from the European Union (EU) and the end of European free movement in the UK.

An EEA national will now fall into one of the following groups:

• A person who has been granted settled or pre-settled status under the EU Settlement Scheme;
• A person who has a pending EU Settlement Scheme made before 30 June 2021;
• A person who has no lawful status because they did not apply to the EU Settlement Scheme by 30 June 2021, even if a late application is accepted;
• A person who arrived in the UK on or after 1 January 2021 with leave to enter for a specific purpose, such as to visit, work or study.

EEA countries

The EEA is made up of all the European Union (EU) member states, plus Iceland, Lichtenstein, and Norway. When the term 'EEA national' is used to refer to a person's immigration position in the UK, this will also include Swiss nationals, whose rights are set out in bilateral treaties.

Full list of EEA countries: 2022

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, 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 Trust may need to undertake an assessment of eligibility for accommodation and financial support under the CA 1989.

For the current position on providing accommodation and financial support under section 17 to European Economic Area (EEA) national families, and details of their benefit entitlement, see NRPF Network factsheet on supporting EEA nationals who are destitute or at risk of homelessness.

Note:

European Economic Area (EEA) citizens who came to the UK under the points-based immigration system after 11pm on 31st December 2020 will have the same access to benefits as non-EEA migrants. EEA nationals and their family members are required to obtain leave to enter or remain to live in the UK. Those coming to the UK to live will need to apply for a visa in advance of their arrival.

All non-British citizens (excluding Irish citizens) who arrived in the UK from 1st January 2021, are restricted from accessing income-related benefits, and an allocation of social housing or homelessness assistance, until they have achieved indefinite permission to stay (this is typically achieved after 5 years' residence in the UK).

Those who were living in the UK before the end of the transition period on 31st December 2020 have different residence rights and entitlements to services. They must have applied by 30st June 2021 under the EU Settlement Scheme to obtain a form of leave to remain (settled or pre-settled status) and retain their lawful status in the UK.

Voluntary Returns

The Home Office may assist an EEA national with a voluntary return, including arranging and purchasing travel documents and financial assistance, if they are without status or leave in the UK.

An EEA national wishing to return to their country of origin should be advised to seek legal advice about how this will impact on their future residence rights. If they have pre-settled status, they may need advice about how return will impact on their ability to meet the continuous residence requirement to apply for settled status.

See also: GOV.UK, Get Help to Return Home if You're a Migrant in the UK.