We have published a new human rights assessment template and accompanying practice guidance to assist councils with the process of undertaking a human rights assessment when Schedule 3 of the Nationality, Immigration and Asylum Act 2002 applies to an adult with care needs, family, or care leaver (age 18+) who is receiving or applying for social services' support.
When a person is ‘in breach of immigration laws’, Schedule 3 requires the Council to undertake a human rights assessment to determine whether the person is able to return to their country of origin to avoid destitution in the UK. When the person can reasonably be expected to return, social services' support can be withheld or withdrawn. If a barrier preventing return is identified, the Council can provide support.
Providing support to people with no recourse to public funds can be a high-cost service for councils, which is not reimbursed by central government, with 68 local authorities in England and Scotland collectively spending £57 million supporting 3,200 households. Although the Home Office provides local authorities with funding to support Unaccompanied Asylum Seeking Children, the weekly amount significantly reduces once a child turns 18 and ends three months after a care leaver becomes ‘Appeal Rights Exhausted’.
Councils must therefore ensure that legislation governing eligibility for this essential ‘safety-net’ is correctly applied and that appropriate steps are taken to assist people to achieve a sustainable outcome when support is provided. In 2020-21, 79% of family and 51% of adult households exited support following a grant of leave to remain, with families receiving support for an average period of 1.5 years and adults with care needs for 2.5 years. In the majority of cases, a sustainable outcome will be achieved by obtaining leave to remain and transferring to mainstream benefits and/or employment. However, for those who have exhausted their immigration options and are unable to pursue further claims to remain in the UK, return to country of origin will need to be considered. The human rights assessments therefore provides an opportunity to identify and document what action may need to be taken to assist a person who is ‘in breach of immigration laws’ to achieve a sustainable outcome and avoid destitution.
Following the end of free movement in the UK on 31 December 2020, changes were made to Schedule 3, which limit its application when a European Economic Area (EEA) national qualifies for social services' support. Schedule 3 now only applies to an EEA national who is without lawful status in the UK. However, the Home Office has committed to enable people who missed the deadline to apply to the EU Settlement Scheme to make a late application. Therefore, when an EEA national is without lawful status in the UK but is entitled to apply to the EU Settlement Scheme, withholding or withdrawing support on the basis that they can return to their country of origin will not be an appropriate course of action, even though costs will be incurred by the Council when support is provided.
The human rights assessment template can be used by social workers/ other officers who are working with adults with care needs, families, or care leavers in any part of the UK.
The accompanying practice guidance explains when a human rights assessment is required, how to identify a barrier to return, what to consider when there is no barrier to return, how to identify when a person may require further immigration advice, when Schedule 3 applies to EEA nationals, and what assistance can be provided following the outcome of the human rights assessment.
We hope this will be a useful tool to help councils navigate what can be a complex area of practice and we are keen to receive feedback from anyone who has used it.
For more information about when an adult with care needs or family will qualify for social services's support, see our guidance for councils.