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Help for ineligible migrants in Wales

This content applies to Wales

Overview of duties and powers to provide accommodation to households who are ineligible for homelessness assistance under the Housing (Wales) Act 2014.

The Social Services and Well-being (Wales) Act 2014

In Wales, households who are ineligible for housing assistance under the Housing (Wales) Act 2014 may be able to access assistance (including accommodation) under other statutory duties and powers contained in the Social Services and Well-being (Wales) Act 2014.

This support is provided by social services rather than the housing department. The  provisions relating to help with accommodation are contained in:

  • Part 3 – needs assessments for people with care and support needs
  • Part 4 – duties and powers to meet care and support needs
  • Part 6 – looked after and accommodated children.

Immigration and residency status will not affect the right to a needs assessment under Part 3 where the duty is triggered but can have a significant impact on the authority’s duties and powers under Part 4.

Duties to unaccompanied minors and other looked after and accommodated children under Part 6 are not affected by immigration or residency status.

Unaccompanied minors

An authority must provide accommodation for any child under 18 within its area who appears to require accommodation as a result of:[1]

  • there being no-one with parental responsibility for the child
  • child being lost or abandoned
  • person who has been caring for the child being prevented (whether permanently or not and for whatever reason) from providing the child with suitable accommodation or care.

There are no immigration or residency restrictions on access to this support but the duty does not extend to accommodating the family as a whole.

Ineligible migrant families with children

An authority must assess the care and support needs of a child in its area where it appears that the child may have care and support needs in addition to, or instead of, the care and support provided by the child’s family. Both the child and anyone with parental responsibility for the child must be involved in the assessment.[2]

Social services must have regard to the importance of promoting the upbringing of the child by their family so far as this is consistent with promoting the well-being of the child when exercising their functions.[3] There are no immigration or residency restrictions on access to a needs assessment.

Following a needs assessment, there will be a duty to meet the child’s care and support needs if the authority considers it necessary in order to protect the child from harm or risk of harm.[4] An authority can provide accommodation directly, arrange for its provision by a third party, or make payments to the family to secure accommodation.[5]

However, for ineligible migrant families there are further statutory restrictions on support for certain groups (see Schedule 3 exclusions below).

Ineligible adult migrants with care and support needs

An authority must assess the care and support needs of an adult in their area where it appears that the adult may have care and support needs. The adult and, where feasible, any carer must be involved in the assessment.[6]

Following a needs assessment there will be a duty to meet an adult’s care and support needs if the authority considers it necessary in order to protect the adult from abuse or neglect, or risk of abuse or neglect.

Accommodation will only form part of the care package where the provision of accommodation is necessary to meet the care and support needs of the adult[7] and where there is no entitlement to accommodation under the Housing (Wales) Act 2014.[8]

Destitute plus test

People subject to immigration control who have no recourse to public funds should be assessed in the same way as any other adult. However, where the needs for care and support have arisen solely because the adult is destitute, or because of the physical effects or anticipated physical effects of being destitute, then the adult is excluded from receiving support under Part 4 of the Social Services and Well-being (Wales) Act 2014.[9] This is known as the ‘destitute plus’ test.

Schedule 3 exclusions

There are eligibility restrictions on the provision of support under Part 4 of the Social Services and Well-being (Wales) Act 2014 for the following groups:[10]

  • non-EEA nationals who have refugee status in another EEA state
  • EEA nationals other than British citizens
  • failed asylum-seekers who have failed to co-operate with removal directions
  • people in the UK in breach of immigration law.

These groups are excluded from support unless:[11]

  • they are children under 18, or
  • it would breach their human rights or EU treaty rights not to provide support.

See Legislation restricting community care help for more information on:

  • ‘destitute plus’ test
  • schedule 3 exclusions
  • human rights and European Treaty exceptions
  • travel assistance and temporary accommodation pending return to another country.

Needs assessments and human rights assessments

The Welsh Refugee Council has produced comprehensive briefings on needs assessments under the Social Services and Well-being (Wales) Act 2014 and human rights assessments that an authority must carry out to determine eligibility for services:

Asylum seekers

Unaccompanied asylum-seeking children must be provided with accommodation under the Social Services and Well-being (Wales) Act 2014 (see unaccompanied minors above).

Adult asylum-seekers with care and support needs not solely arising through destitution may be provided with accommodation under the Social Services and Well-being (Wales) Act 2014 if the provision of accommodation is necessary to meet assessed care and support needs (see ineligible migrants with care and support needs above).

Other adult asylum-seekers and their families may be provided with accommodation and subsistence support funded by the Home Office whilst their asylum claim is being considered.

See Support from UKVI for more information on:

  • eligibility for asylum support
  • applying for asylum support
  • dispersal and conditions of asylum support
  • suspension or withdrawal of asylum support.

England

The information on this page applies to Wales only. See Help for ineligible adult migrants in England and Help for ineligible children and families in England for related information.

[1] s.76 Social Services and Well-being (Wales) Act 2014.

[2] s.21 Social Services and Well-being (Wales) Act 2014.

[3] s.6(4) Social Services and Well-being (Wales) Act 2014.

[4] s.37 Social Services and Well-being (Wales) Act 2014.

[5] s.34 Social Services and Well-being (Wales) Act 2014.

[6] s.19 Social Services and Well-being (Wales) Act 2014.

[7] SL v Westminster City Council [2013] UKSC 27.

[8] s.48 Social Services and Well-being (Wales) Act 2014.

[9] s.46 Social Services and Well-being (Wales) Act 2014.

[10] paras. 4 to 7A, Schedule 3, Nationality, Immigration and Asylum Act 2002.

[11] paras. 2 and 3, Schedule 3, Nationality, Immigration and Asylum Act 2002.

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