Social services’ support for undocumented Commonwealth citizens 

19 April 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. 

Background information
Recent media reports have highlighted that a number of Commonwealth citizens, who have been living in the UK 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 settled status. 

Commonwealth citizens who arrived as children are highly likely to have either indefinite leave to remain or a right of abode in the UK:

  • Those present in the UK since before 1 January 1973 will have indefinite leave to remain if they have not subsequently spent long periods outside of the UK 
  • Women who were married to a person with a right of abode (for example, a British citizen) before 1 January 1983 are likely to have the right of abode
  • According to Home Office guidance, those who arrived in the UK after 1 January 1973 during the 1970's 'may be allowed to stay here permanently'
The Home Office has recently published guidance and set up a helpline that people can contact for more information. A new team​ will deal with complete applications within two weeks and fees for documentation confirming status will be waived

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. They will therefore be left dependent on family, friends and local community organisations for support, but 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 indefinite leave to remain 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. 

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. Where support is provided to alleviate destitution​, practitioners will need to be able to effectively assist people to find a sustainable route out of dependency on social services' support, otherwise local authorities will face significant long-term costs. ​

Best practice points
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. The following best practice points are intended to help local authorities provide an effective response:

  • 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.
  • 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. 
  • 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 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 ILR or a right of abode 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 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. ​​
  • When support is provided, social services can play an important role in helping the person to access legal advice and to document their history in the UK. Although the Home Office has provided information about the types of applications that can be made, most cases are likely to be complex, particularly where a person arrived after 1 January 1973, and will require legal ​advice, although legal aid is not available. See our information for help finding a local immigration adviser.  
  • A legal representative should consider whether a person already has indefinite leave to remain or the right of abode before advising on making an application under the private life rules, as such leave is granted for 30 months at a time on a 10-year route to settlement. Local authorities should check that people they are supporting have explored all their options with a legal adviser before an application is made. ​
  • There are often 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.
Practitioners may contact us for further advice if they have queries about specific cases. 

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