Social services’ support for undocumented Commonwealth citizens 

1 June 2018

Best practice guidance for local authorities

This article is intended to provide a guide for local authorities on what needs to be considered when an undocumented Commonwealth citizen requests help with housing ​and/or has social care needs. 

Recent media reports have highlighted that a number of Commonwealth citizens, who have been living in the UK lawfully for decades or since childhood, are facing destitution, having lost access to employment and benefits when they have been unable to prove their right to work and that they have recourse to public funds. Some have been denied hospital treatment without upfront payment where they have been unable to demonstrate that they have British citizenship or settled status. The Home Office has now set up a new scheme to help people document their status (see below). 

Local authorities will need to ensure that appropriate interventions are undertaken to prevent the homelessness of undocumented Commonwealth citizens, who may suddenly lose access to employment and welfare benefits:

  • Where a person who is living in a council tenancy becomes at risk of homelessness due to their benefits or employment suddenly stopping, the local authority should consider how best to support that person to remain in their home, for example, by referring them for immigration and benefits advice, and establishing whether any temporary support is required whilst they are confirming their immigration status.
  • Housing departments may consider relying on information provided by the Home Office helpline or a legal representative about a person’s status when determining eligibility​ for homelessness assistance.​​
  • When a person is found to be ineligible for homelessness assistance, the housing officer should make referrals to organisations that may be able to provide support, for example, social services or local charities, and also provide information about immigration advisers in the area. ​
Social services' support 
Having had full access to employment and benefits for decades, this group of people can suddenly find themselves having no recourse to public funds (NRPF) when they are unable to show documents to prove their entitlement to welfare benefits. Many will now be elderly and will be left dependent on family, friends and local community organisations for support. However, some may be able to access housing and financial support provided by social services:​

  • I​t is already well established that social services provide safety net support to safeguard the welfare of children and vulnerable adults, who are excluded from mainstream welfare benefits by their immigration status. In England this is provided under section 17 of the Children Act 1989 (families with children under 18) and the Care Act 2014 (adults with care and support needs). Equivalent legislation that applies in Scotland, Wales and Norther​n Ireland is listed here​
  • Local authorities will need to consider whether it is appropriate to use a discretionary power (section 1 of the Localism Act 2011 in England) to provide housing when a person does not meet social care eligibility criteria, cannot be expected to return to their country of origin, has no other housing options, and demonstrates particular vulnerabilities that means that being homelessness would give rise to a human rights breach.​
  • The immigration exclusions set out in Schedule 3 of the Nationality, Immigration and Asylum Act 2002, which apply to people who do not have any current immigration permission, should not prevent undocumented Commonwealth citizens from accessing social services' support because many are likely to be lawfully present, and those who do not already have British citizenship or a form of settled status will have very strong claims to remain in the UK on grounds of long residence, so return to country of origin is not going to be a viable option to avoid destitution in the UK.
​​It is essential that local authorities ensure that undocumented Commonwealth citizens who request support are properly assessed and are provided with appropriate support to meet eligible needs, and that using a discretionary power to provide accommodation is considered where a person has no alternative support options. This would be consistent with the approach that councils need to take when any person with NRPF requests support, and social services should be mindful of the following best practice points: 

  • A needs assessment should be carried out by Adult Social Services when an adult presents with an appearance of need; eligibility for care and support (including the provision of accommodation) should be determined in line with the relevant legislation. Our practice guidance provides further information.
  • When investigations are undertaken by social services into how a person has supported themselves and whether such arrangements can continue, it is important to be aware of the sanctions that people who cannot document their immigration status will face, e.g., they will be prevented from working, renting in the private sector, accessing free secondary healthcare, opening a bank account etc.
  • The Home Office will not have any information on its systems to confirm the status of many undocumented Commonwealth citizens and is unlikely to be able to confirm that such a person does have settled status unless that person has made a recent application to document this. The absence of such information should not be used to make adverse decisions regarding a person’s eligibility for social services’ support.
  • Local authorities using NRPF Connect should record referrals and any support provided in order to document costs and demand for assistance from social services; the system can be used to chase up the progress of any applications made to the Home Office. ​​​
  • ​There are ofte​n misunderstandings about the healthcare a person can and cannot access when they are undocumented, for example, people can still get services from a GP, and free prescriptions if they have a low income. See our factsheet on NHS healthcare for more information.​
  • Where support is provided to alleviate destitution​, practitioners will need to be able to effectively assist the person to find a sustainable route out of dependency on social services' support, otherwise local authorities will face significant long-term costs, this includes helping the person to access legal advice and to document their history in the UK. ​
  • Practitioners need to be aware of the new Windrush scheme (see below). When a legal representative has advised that a person's best option is to make an application for leave to remain under the private life rules (which would lead to 30 months limited leave being granted on a 10-year route to settlement), they should check that the person has explored all their options with their legal adviser before this type of application is made. ​​
New Home Office ‘Windrush scheme’
Social services practitioners have reported that undocumented Commonwealth citizens currently receiving support have experienced difficulties documenting their status, with those that have vulnerabilities relating to their care needs facing additional challenges in doing so. 

The Home Office has now published information about how undocumented Commonwealth citizens can make a free application under a new ‘Windrush scheme’, along with detailed guidance​ for its caseworkers. The dedicated Home Office Taskforce will consider whether the person already has British citizenship, the right of abode, no time limit on their stay in the UK or indefinite leave to remain, against the existing rules and legislation. If a person indicates that they would like to become British and they are not already, the Home Office will also consider whether they can be registered or naturalised as a British citizen. Although the Windrush application is free, a person recognised as already being British, or who is granted citizenship, will need to pay for and apply for a passport in the usual way. Note that the scheme is also open to non-Commonwealth citizens who arrived in the UK before 31 December 1988 and are lawfully settled. 

There will be no right of appeal if the Home Office decides that a person is not British or has a form of settled status following a Windrush application. The only way to legally challenge such a decision will be by judicial review, for which legal aid is available. However, legal aid is not available for advice and assistance with making a Windrush application. Although a person may make an application by themselves, the guidance indicates that many cases will be complex and is unclear how applications will be considered where evidence is lacking, although the application form states:

'If you can’t find your documents we can still help. We will consider your evidence in the round. We will not refuse your application without giving you the opportunity to provide more information.​'

The Taskforce continues to operate a helpline people can call. However, if a person can access independent advice in the first instance, this is recommended:

  • For help finding an immigration adviser see our information​
  • The Joint Council for the Welfare of Immigrants (JCWI) has a free email and telephone advice service
Additionally, the government is currently considering evidence​ to inform the compensation scheme that it has pledged to set up. 
Practitioners may contact us for further advice if they have queries about specific cases. We would be keen to hear about any problems people receiving social services’ support have had in getting documentation so that these can be raised with the Home Office. 

This article was originally published on 19 April and has been revised to include information about the new Home Office Windrush scheme.

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