March 2020: This guidance has been revised throughout as a result of local review and should be re-read. It replaces the Working with People with No Recourse to Public Funds guidance.
- 1. Introduction
- 2. Identifying People who are Barred from Accessing Adult Social Care Support
- 3. Duty to Inform the Home Office
- 4. Undertaking a Human Rights / EEA Treaty Rights Assessment
- 5. Pre-Assessment Stage: Determining whether a Person can Freely Return
- 6. Determining a Breach of EU Treaty Rights (EEA Nationals and Dependent Family Members)
- 7. The Right to Reside
- 8. Assessment Steps
1.1 People barred from receiving Adult Social Care support
Schedule 3 of the Nationality, Immigration and Asylum Act 2002 (amended 2016) states that the following five groups of people are ineligible for support and assistance under Part 1 of the Care Act 2014:
- EEA citizens;
- people granted asylum in other EEA countries;
- failed asylum seekers;
- visa overstayers; and
- others without leave to remain.
In addition, Section 21 of the Care Act 2014 places a further restriction on providing support and states that a local authority may not meet the needs for care and support of an adult or carer or perform their duty to prevent the needs for care and support of an adult to whom section 115 (Exclusion from benefits) of the Immigration and Asylum Act 1999 (amended 2016) applies, whose needs for care and support have arisen solely:
- because they are destitute; or
- because of the physical effects, or anticipated physical effects, of being destitute.
This applies to anyone who is not a national of an EEA State and who:
- requires leave to enter or remain in the United Kingdom but does not have it;
- has leave to enter or remain in the United Kingdom which is subject to a condition that he does not have recourse to public funds;
- has leave to enter or remain in the United Kingdom given as a result of a maintenance undertaking; or
- has leave to enter or remain in the United Kingdom only as a result of having an outstanding appeal pending.
However, Paragraph 5 of Schedule 3 states that:
‘A person who is in an excluded group can only be provided with support or assistance under the Care Act 2014 where this is necessary for the purpose of avoiding a breach of a person’s rights under the European Convention on Human Rights (ECHR) or European Union (EU) treaty rights.’ The most common human rights breaches are a breach of article 3 – the right to be protected from inhuman or degrading treatment and a breach of article 8 – right to respect for private and family life. Article 2 – the right to life does not extend to the right to have life extended by medical treatment which is more readily available in the country in which the person would like to remain. The EU Treaty rights at risk of breach are the right to freedom of movement and the right to reside.
When working with someone who is barred from accessing support, an assessment must be undertaken to find out whether there are grounds to lift the bar.
1.2 No recourse to public funds
People who have no legal entitlement to financial support or assistance from the state are people who have no recourse to public funds (NRPF). These are usually migrants who are excluded from mainstream benefits and housing due to their immigration status.
People with no recourse to public funds may be:
- failed asylum seekers who have exhausted their appeal rights and who have failed to co-operate with removal directions;
- people who are unlawfully present in the UK who are not asylum-seekers, for example, people who have overstayed their leave to remain, people who have been trafficked into the country or people who entered the country illegally;
- people who have been granted limited leave to remain on the condition that they have no recourse to public funds; for example, people who are spouses/unmarried partners of someone with British citizenship or who has indefinite leave to remain who have been granted a two year probationary period on condition of no recourse to public funds;
- people who have been granted discretionary leave to remain, for example, ‘separated’ children or young people from non-suspensive appeal countries to whom the Home Office does not grant either refugee status or humanitarian protection, and are given 12 months leave to remain or until their 18th birthday, whichever is shorter;
- people on student visas who are unable to work and have no recourse to public funds.
- an adult dependent relative of a British citizen or person with settled status will usually have indefinite leave to enter or remain in the UK with a prohibition on claiming public funds for a period of five years, although they may apply for non-means tested benefits during this period. Once five years has passed, or if the person who made the undertaking has died, they will have full recourse to public funds
2. Identifying People who are Barred from Accessing Adult Social Care Support
People who are barred from accessing adult social care support should be identified as early as possible, but everyone is entitled to a respectful and humane response from the local authority which upholds their dignity and is perceived as helpful. Asking people at the point of contact about their residency and immigration status will create barriers and could be perceived as racist. However, one single check, not on entitlement to adult social care but on entitlement to support from Hull City Council adult social care should be carried out on everybody who asks for support. This should seek to identify a person’s ordinary residence, citizenship and right to access support. This one check, applied indiscriminately, will identify people who are British citizens and ordinarily resident in Hull, those who are British citizens but ordinarily resident elsewhere, people who are EEA citizens (who may have a national insurance number and be able to claim state benefits, but are nonetheless barred from receiving social care support) and also those who have no recourse to public funds, as they will not have a national insurance number or be eligible for state benefits. Most people who have no recourse to public funds are refused recourse because of their immigration status. It is this immigration status which bars them from accessing adult social care support.
If someone does approach the local authority for support and following the initial check, appears to be a member of a barred group, their residency and immigration status must be checked. For EEA nationals, this is set out below in section 6. For non EEA nationals, this can be done by asking to see the person’s passport. If they have no recourse to public funds, this will usually be stated on the passport. If their status cannot be verified in any other way, you should check with the Home Office. You should inform the person that you are legally required to do this and contact the Home Office by email. The email address is: ICESSVECWorkflow@homeoffice.gsi.gov.uk
If someone is barred from receiving support and there are insufficient grounds to lift the bar, there is still no prohibition on a local authority undertaking its general duties with regards to providing information and advice or prevention. It can also undertake a needs assessment and may meet urgent needs for care and support whilst undertaking the relevant assessments.
Social workers should also consider family circumstances, where appropriate, and consider any issues around other adult family members or children. If there are concerns around issues involving children in the family, the social worker must liaise with children’s social care. If there are adult safeguarding concerns, a referral to the Safeguarding Team must be made.
3. Duty to Inform the Home Office
The local authority is required to inform the Home Office of:
- any person they suspect or know to be unlawfully present in the UK; and
- a refused asylum seeker who has not complied with removal directions.
This duty should be explained to adults upon presentation to the local authority
4. Undertaking a Human Rights / EEA Treaty Rights Assessment
The bar on providing support to people in barred groups is overridden by the obligation upon local authorities to perform their duties in a way which does not breach people’s human rights or EEA treaty rights (see section 1). If it appears that to withhold support could create a breach, the local authority must undertake a human rights/EEA treaty rights assessment. If the assessment shows that the withholding of support would indeed breach the person’s human rights or EEA treaty rights, then discussion should take place with a senior manager who will make a decision whether the bar on providing support or assistance under Schedule 3 of the Nationality, Immigration and Asylum Act 2002 or Section 21 of the Care Act 2014 should be lifted. The assessment must include consideration of whether the person can return to their country of origin without that causing a breach of their human rights. If there are no legal or practical barriers to the person returning, then the local authority does not have a duty to support.
The Court of Appeal, in the case of R (Kimani) v LB Lambeth (2003), found that: ‘A State owes no duty under the Convention to provide support to foreign nationals who are permitted to enter their territory but who are in a position freely to return home.’
The local authority should initially conduct a human rights assessment to establish whether the person is able to return to their country of origin to avoid remaining destitute and homeless in the UK, and therefore prevent a breach of Article 3 of the ECHR. This will involve consideration of whether there are any legal or practical barriers in place which may prevent the person from doing so.
A practical way of approaching the human rights assessment is to consider key questions in a staged process:
- Can the person freely return to their country of origin?
- If so, would return result in a breach of the person’s human rights under the ECHR?
- Would return result in a breach of the person’s rights under European treaties? (EEA nationals and dependent family members)
- If there are legal or practical barriers to return, or if return would breach the person’s human rights or EEA treaty rights, would the person’s human rights be breached by failing to lift the bar on providing support?
When interviewing the individual, social workers should explore, as fully as possible, existing sources of help and support in the community, voluntary groups, social networks etc. A template is included as part of this guidance to help structure the assessment and to help social workers to demonstrate that all requirements under legislation have been met.
5. Pre-Assessment Stage: Determining whether a Person can Freely Return
For many people with social care needs, remaining in the UK without support would lead directly to them becoming destitute and homeless, or otherwise living in inhuman and degrading conditions. Remaining in the UK would therefore, breach their human rights so the first stage of the assessment is to identify whether return is reasonably practicable, which means establishing if there are any legal or practical barriers preventing a person from leaving the UK. If there is a barrier preventing return, the first stage of the assessment may therefore be brief, simply documenting and evidencing the barrier, and noting at what point it may need reviewing.
5.1 Legal barriers to return
An outstanding application or appeal made to the Home Office raising human rights grounds (for example, Article 3 and/or Article 8) would constitute a legal barrier to return.
5.2 Practical barriers to return
There may be a clear practical issue that presents a barrier to a person being able to return. Examples would include the person’s inability to:
- acquire identity or travel documentation, for example, due to the lack of a national embassy in the UK or functioning government in their country of origin; or
- travel due to ill health or a medical condition, such as pregnancy.
When such a barrier is temporary, it might be appropriate to provide support on a short term basis and to assist the person to overcome this.
For people who require documentation to be able to travel then their national embassy should be able to explain how they can obtain this or this issue may be addressed if they return with assistance from the Home Office Voluntary Returns Service.
When a medical practitioner provides confirmation that a person is fit to travel, their health needs would need further consideration in order to establish whether, despite this need, they are able to return without this giving rise to a human rights breach. For example, the person may require assistance during the journey.
5.3 Assessing the risk of a breach of human rights following return
Where the local authority is clear that return is reasonably practicable because there are no barriers that will prevent a person from leaving the UK, then it will need to assist the person to contact the Home Office who will determine whether the person should return to their country of origin. It is not for the local authority, but rather for the Home Office and the courts to determine whether the person should remain in this country or should return to their country of origin although the local authority may refer the person for legal advice to establish whether they can make a claim for asylum on human rights or other grounds and may provide advice and information to the person to assist them to make an application to the Home Office.
The most common human rights breaches are a breach of article 3 – the right to be protected from inhuman or degrading treatment and a breach of article 8 – right to respect for private and family life. Article 2 – the right to life does not extend to the right to have life extended by medical treatment which is more readily available in the country in which the person would like to remain. Furthermore, the Strasbourg court of human rights has constantly reiterated that:
‘in principle aliens subject to expulsion cannot claim any entitlement to remain in the territory of a contracting state in order to continue to benefit from medical, social and other forms of assistance provided by the expelling state. Article 3 imposes no such ‘medical care’ obligation on contracting states. This is so even where, in the absence of medical treatment, the life of the would-be immigrant will be significantly shortened.’
Article 3 might be engaged where someone faced a return to their country of origin where they had no home and no means of support. Being reduced to living on the streets and foraging in waste bins for food would be likely to be regarded as inhuman and degrading.
Article 8 might be engaged where someone had good family ties in this country and none in their country of origin although the courts have considered the question of whether the refusal of a family member to accompany the person to return creates a duty on the state to grant leave to remain to someone to whom it would not otherwise have granted leave. So far, the case law is inconclusive.
If the human rights assessment shows that the person’s human rights might be breached as a result of returning home and the person applies to the Home Office for asylum, the assessment should then consider whether the person’s human rights would be breached by withholding social care and support in the interim. If it finds that they would, these are grounds for raising the bar and a senior manager should be approached for agreement to lift the bar.
6. Determining a Breach of EU Treaty Rights (EEA Nationals and Dependent Family Members)
Where it has been established that there are no legal or practical barriers preventing an EEA national or dependent family member of an EEA national from returning, the local authority must consider whether support or assistance is necessary to prevent a breach of the person’s rights under European Union (EU) treaties. This can be established in the two stages:
(1) Whether person has the right to reside in the UK under European law, through their own activities or as the family member of an EEA national, considering:
- the person’s length of residence and activities in the UK, e.g. have they studied, worked etc.; and
- whether there are other EEA national family members in the UK, (or who were previously living in the UK), what their activities during this time were, and whether the person is living with them or otherwise dependent on them.
(2) When a person does have a right to reside, consider whether support is necessary to prevent a breach of the person’s rights under the EU treaties, i.e., would the person be able to exercise their right to reside if care and support is not provided.
It is important to note that the right to reside is determined by the Home Office and the courts, not by the local authority. If the person can clearly demonstrate a right to reside, in accordance with the summaries of Home Office guidance set out below, then assessment steps 1-8 set out below should be followed, using the attached assessment template. If their right to reside is not clearly demonstrated, a check should be made with the Home Office who will provide a decision. The email address for the Home Office is: ICESSVECWorkflow@homeoffice.gsi.gov.uk
7. The Right to Reside
(All content for this chapter is taken from the Home Office guidance on assessing the right to reside.)
7.1 Initial right to reside
An EEA national can live in the UK for a period of up to three months providing they hold either a valid:
- national identity card issued by an EEA state;
- passport issued by an EEA state.
Home Office guidance states ‘An EEA national must not become an unreasonable burden on the social assistance system of the UK during their initial residence. If they become an unreasonable burden they will cease to have a right of residence and can be removed from the UK in line with regulation 23(6)(a) of the Immigration (EEA) Regulations 2016.’
7.2 Right to reside as a qualified person
In line with regulation 14 of the 2016 regulations, an EEA national can continue to live in the UK beyond the initial 3 month period for as long as they are a qualified person, or the family member of a qualified person.
Regulation 6 defines a qualified person as a:
- job seeker;
- self-employed person;
- self-sufficient person;
EEA regulations set out the standards people must meet in order to claim a right to reside as a qualified person and Home Office guidance provides further clarification. These standards are summarised below and should be taken account of when ascertaining whether someone has a right to reside. If they have a clear right, the assessment should then consider whether their right to reside would be breached by returning to the country of origin. If it is unclear whether the person has a right to reside or not, clarification must be sought from the Home Office. It is for the Home Office and the courts to decide whether someone has a right to reside, not the local authority.
7.2.1 Right to reside as a jobseeker
A jobseeker is defined in regulation 6(5) of the Immigration (EEA) Regulations 2016 (as amended) (‘the Regulations’) as an EEA national who:
- enters the UK in order to seek employment and who can provide evidence they are seeking employment and have a genuine chance of being employed.
Simply registering as a job seeker with Job Centre Plus or another employment office is not in itself sufficient to meet the requirement to be seeking employment and have a genuine chance of being employed. An EEA national may not be a jobseeker for longer than the relevant period unless they can provide compelling evidence that they are continuing to seek employment and have a genuine chance of being engaged. For jobseekers, the relevant period is 91 days (3 months) minus the total of any days during which the person concerned previously enjoyed a right to reside as a jobseeker, unless that previous period was prior to a continuous absence from the UK of more than 12 months.
An EEA national who enters the UK to look for work will have the initial 3 month, unconditional period of residence, conferred by regulation 13 and then the period of 91 days as a jobseeker, providing they are actively seeking work and have a genuine chance of being engaged. In other words an EEA national who enters the UK to look for work will usually have a 3 month initial right of residence, followed by 91 days (3 months) as a jobseeker, provided the criteria are met. A jobseeker may have access to benefits for this 91 day period of residence as a jobseeker. At the end of the 91 day period as a jobseeker the person will be required to provide compelling evidence, that they are actively seeking work and have a genuine chance of being engaged. If the person cannot satisfy this requirement then they cease to have a right of residence as a jobseeker and consequently cease to have access to benefits.
It also follows that if their right to reside has expired and they cannot claim a right to reside as any other classification of qualified person, they can return to their country of origin without any breach of their EEA treaty rights. The assessment should still consider whether they can return without a breach of their human rights and the guidance set out above at section 6.3 should be followed.
7.2.2 Right to reside as a worker
While there is no minimum amount of hours which an EEA national must be employed for in order to qualify as a worker, the employment must be genuine and effective and not marginal or supplementary.
Effective work may have no formal contract but should have:
- something that is recognisably a labour contract;
- an employer;
- agreement between employer and employee that the worker will perform certain tasks;
- confirmation the employer will pay or offer services (such as free accommodation) or goods for the tasks performed.
Marginal means the work involves so little time and money that it is unrelated to the lifestyle of the worker. It is supplementary because the worker is clearly spending most of their time on something else, not work.
Relevant considerations include:
- whether there is a genuine employer-employee relationship;
- whether there is an employment contract;
- whether the work is regular or intermittent;
- how long the EEA national has been employed for;
- number of hours worked;
- level of earnings. HMRC has a primary earnings threshold (PET), which is the point at which employees must pay class 1 NI contributions. If an EEA national is earning below PET, the Home Office would wish to make further enquiries into whether the activity relied upon is genuine and effective.
Case example 1
Mr A is a Spanish national and has recently started work on a construction site for 20 hours each week and earns £250 each week. He provides evidence of a contract of employment and bank statements showing funds regularly entering his account. He has recently registered with HMRC for tax purposes. In this scenario, it is more likely than not that Mr A is a genuine worker.
Case example 2
Mr B is a Dutch national and has recently started work washing cars for a relative. He works cash in hand and has no employment contract. He claims to earn £100 each week and tries to supplement this with odd jobs elsewhere when he can. He has no bank account and cannot show any evidence of tax or national insurance (NI) payments. In this scenario, it is more likely than not, that Mr B’s work is marginal and ancillary and so he is not a worker.
7.2.3 Right to reside as a self employed person.
The standards for enjoying the right to reside as a self employed person are similar to those which apply to any other worker but without those around the need for an employer or employment contract.
7.2.4 Retaining worker or self-employed person status
There are some circumstances when an EEA national who is no longer working does not stop being treated as a worker for the purposes of the regulations. These are where the person is:
- temporarily unable to work because of illness or an accident;
- in duly recorded involuntary unemployment;
- involuntarily unemployed and have embarked on vocational training;
- voluntarily stopped working to start vocational training related to their previous work.
The Home Office guidance on retaining worker or self employed person status is complex and places a burden of proof on the person to show why they should retain their status and therefore their right to reside. It is for the Home Office, not the local authority to decide whether someone should retain their status and so the person should be referred to the Home Office for a decision. Pending this decision, the assessment should consider whether the person’s human rights would be breached if social care support was not provided and the guidance set out above at section 6.3 should be followed.
7.2.5 Right to reside as a self-sufficient person
A self-sufficient person is an EEA national who is exercising their free movement rights in the UK. In order to claim a right to reside, they must be able to provide proof that they have:
- enough money to cover their own and any family member’s living expenses without becoming a burden on the social assistance system in the UK;
- comprehensive sickness insurance (CSI) in the UK for themselves and any family members.
7.2.6 Right to reside as a student
An EEA national exercising their free movement rights in the UK as a student must show they:
- are enrolled for the main purpose of following a course of study (including vocational training) at a public or private establishment which is:
- financed from public funds; and
- recognised by the Secretary of State as an establishment accredited to provide such courses or training within the law or administrative practice of the part of UK in which it is located;
- have enough money to meet their living expenses and so will not become a burden on the social assistance system of the UK during their residence;
- have comprehensive sickness insurance (CSI) in the UK for themselves and any family members.
7.3 Permanent residence status
EEA nationals can apply for a document certifying permanent residence in the UK under regulation 19, if they have lived here for 5 continuous years in line with the European Union (EU) laws relating to free movement rights that were in force during the 5 year period. They may also apply for permanent residence status if they have ceased work due to retirement or permanent incapacity. It is vital to let people know that even if they have a document certifying their right to permanent residence, they do not have settled status and under the EU settlement scheme, they must still apply for settled status. Please see the next section for further details.
If an EEA national has the right of permanent residence in the UK they will only lose this right if they are absent from the UK for more than 2 consecutive years. There are no other conditions they must satisfy in order to continue to have this right.
If someone is claiming permanent residence status as the family member of someone who has such status, they should be named on the document certifying permanent residence status.
If someone seeking adult social care support says they have permanent residence status, they should be asked to show documentary evidence of this. If they can’t provide it, they should be encouraged to apply to the Home Office for documentation or replacement documentation and the assessment should consider whether the person’s human rights would be breached by the withholding of support in the interim. The guidance set out above at section 6.3 should be followed. The right to reside does not depend on the ability to show documentary evidence but if someone is claiming entitlement to social care support on the basis that a return to their country of origin would breach their EEA treaty right to reside, that right to reside must be established. Showing documentary evidence means no further check would be necessary.
7.4 EU Settlement scheme
If EU, EEA or Swiss citizens wish to continue to live in the UK after 30th June 2021, they must apply to the EU Settlement Scheme for settled status by that date. This includes people who currently have a right to reside, who have a permanent residence document or who currently have pre-settled status. The only people who do not need to apply for settled status are those who have indefinite leave to enter or reside, or who are exempt from immigration control (usually people who are foreign diplomats or members of NATO). People who are ‘frontier workers’ do not need to apply for settled status, but frontier workers are usually people who work in the UK but do not live in the UK. If the family members of someone who does not need to apply for settled status wish to live in the UK after 30th June 2021, they will need to apply to the settlement scheme. This includes children.
People are encouraged to apply online for settled status by visiting EU Settlement Scheme webpage. There is a three step process for applying:
Step 1- People need to prove their identity and nationality using their passport, national identity card or biometric residence card. If the person has no valid identity document, Hull City Council staff will support the person to apply for these from the embassy of their country of origin.
Step 2 – People need to provide proof of residence in the UK by providing their National Insurance number. People who do not have a National Insurance number will need to upload additional documents to prove 5 years continuous residence. These include bank statements, council tax bills and rental agreements with proof of payment. Click on the link to see a full list: EU Settlement Scheme: Evidence of UK Residence.
Step 3 – People will need to declare any criminal convictions, although only serious or persistent criminality will affect the application.
People who do not have the skills or confidence to complete the application online can access an assisted digital application process by calling 0333 445 675 Relevant documents will need to be scanned and uploaded. Hull City Council does offer a document scanning service as part of the EU settlement scheme which can be accessed by making an appointment at the Hull Registration Service, The Wilson Centre, Alfred Gelder Street, Hull, HU1 2AB.
Local authorities must make applications on behalf of children in care and any adult for whom they hold Public Authority Deputyship. They can assist others if they have the person’s consent or if the person lacks capacity and the local authority can show it is acting in the person’s best interest in accordance with the Mental Capacity Act. This assistance can take the form of providing signposting and advice, of completing the application in conjunction with the person or completing it on their behalf. If a local authority member of staff is completing the application on behalf of someone else, they must upload a letter in the evidence section of the application to inform caseworkers of the person’s circumstances.
The government have provided funding to a number of voluntary sector groups to enable them to provide additional support to people applying to the EU Settlement Scheme. Click on the link for a full list of these groups.
Under the regulations, EEA nationals can be joined or accompanied by their direct family member. However, regulation 13 places restrictions on this.
Regulation 13 states:
(1) An EEA national is entitled to reside in the United Kingdom for a period not exceeding three months beginning on the date of admission to the United Kingdom provided the EEA national holds a valid national identity card or passport issued by an EEA State.
Para (3) states ‘ An EEA national or the family member of an EEA national who is an unreasonable burden on the social assistance system of the United Kingdom does not have a right to reside under this regulation.
The term ‘unreasonable burden’ is not quantified, so no guidance as to what degree of reliance on the social assistance system would constitute ‘unreasonable’ is available. However, if adult social care is asked to provide support to someone who had a high level of social care need at the point of entry to the UK, above that which can be met by the family member on whom they are dependent for a right to reside, clarification should be sought from the Home Office whether the person does have a right to reside. Pending the decision, the assessment should consider whether the person’s human rights would be breached if social care support was not provided and the guidance set out above at section 6.3 should be followed.
If the Home Office decision is that the person does have a right to reside, the assessment should consider whether the person would still be able to exercise that right if social care support was not provided. If they would not, a senior manager should be approached to make the decision to lift the bar on providing support to EEA nationals on the grounds that failing to do so would lead to a breach of their EU treaty right to reside.
If the Home Office decision is that the person does not have a right to reside, the assessment should consider whether the person’s human rights would be breached by a return to their country of origin. If a breach of human rights is likely, the person should be supported to apply to the Home Office for asylum on human rights grounds. The assessment should then consider whether the person’s human rights would be breached if social care support did not continue to be provided and the guidance set out above at section 6.3 should be followed.
8. Assessment Steps
The process, when approached for support by someone who may be in an excluded group is as follows:
Step 1 – Carry out a needs assessment to find out whether the person has needs which meet the National Eligibility criteria
Step 2 – Find out whether the local authority is barred from providing support – are they an EEA citizen, someone granted asylum in another EEA country, a failed asylum seeker a visa overstayer or someone not granted leave to remain.
Step 3 – For EEA nationals and people granted asylum in other EEA countries, establish whether they have a clear right to reside, using the criteria summarised from the Home Office guidance in section 7 above. If they are claiming a right to reside as a family member or dependent family member of someone with a right to reside, seek to establish whether that person has a clear right. It is not the duty of a social worker to grant a right to reside – that is for the Home Office and the courts but if someone does have a clear right then the next step and the one after – finding out if there are any legal or practical barriers to return is unnecessary as their EU treaty right to reside would clearly be breached by a return to the country of origin so there is a strong legal barrier. If the right to reside is not clear, seek clarification from the Home Office.
Step 4 – If someone does appear to be unlawfully present in the local authority area, you must inform the Home Office and tell the person of this requirement.
Step 5 – Find out if there are any legal or practical barriers to return using the criteria set out above in section 5. If there are barriers, offer the person support to overcome them.
Step 6 – For non-EEA nationals and for those EEA nationals who do not have a right to reside, carry out a human rights assessment to discover whether their human rights would be breached if they were to return to their country of origin. If there is evidence that they would, the person may be referred to legal advice, provided with advice and information and otherwise assisted to apply to the Home Office for asylum on human rights grounds but the local authority cannot take the decision to facilitate their remaining in Britain unlawfully. The human rights assessment should also consider whether the person’s human rights would be breached if the bar on providing social care support was not lifted in the meantime.
Step 7 – Decide whether or not to lift the bar (director or head of service only) Following careful consideration of the needs assessment and the human rights/EU treaty rights assessment, one of the following decisions should be made:
a) If the person does not have needs which meet the National Eligibility criteria, they cannot be offered support from Adult Social Care. If the person has other needs which arise because they are destitute and if their human rights would be breached if those needs were not met, the local authority may still have a duty to support, but discussion should take place with the Asylum Team because the prohibition placed by section 21 of the Care Act on the provision of adult social care to meet needs of people subject to immigration control which arise out of destitution remains in place.
b) If the person has needs which meet the National Eligibility criteria, but their human rights would not be breached by withholding support, the bar on providing support should remain in place.
c) If the person has needs which meet the National Eligibility criteria and their human rights would be breached by withholding support, the decision should be made to lift the bar on providing support.
The decision, and the evidence on which the decision was made should be carefully recorded to demonstrate consideration of and compliance with the law. When concluding that the provision of care and support under the Care Act 2014 is not required because a person can return to their country of origin to avoid a breach of their human rights which may be incurred if they remain destitute in the UK, then this must be clearly documented in the human rights assessment. Potential barriers to return must be addressed and a detailed assessment of return must be documented
Step 8 – If the decision is taken to lift the bar on providing support, that support should be arranged.
Step 9 – If the person’s human rights would not be breached by a return to their country of origin, assist them to complete the online application to the Home Office for an assisted return.