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Help for ineligible adult migrants in England

This content applies to England

How adult migrants who are ineligible for housing under homelessness legislation, including asylum seekers, can access accommodation.

Local authority social services may be able to provide accommodation under section 18 of the Care Act 2014, or under the Localism Act 2011.

Meeting needs under the Care Act 2014

From 1 April 2015, social services have a duty under the Care Act 2014 to meet an adult's 'eligible' care and support needs (and a power to meet ineligible needs).[1] Needs can be met in a number of ways, including through the provision of accommodation.[2] See Access to housing with care and support for detailed information on duties and powers under the Care Act 2014, including eligibility for Care Act 2014 support.

For adult migrants in the UK, access to care and support services, including accommodation, is restricted both through the Care Act's eligibility criteria and through additional restrictions based on immigration status.

See Asylum seekers for information about support for asylum seekers where their needs do not meet the eligibility criteria under the Care Act.

Duty to provide accommodation?

The general position is that unless an adult has a need for 'care and support', there is no duty under the Care Act to provide accommodation.  A stand alone need for accommodation is not a need for 'care and support' within the Act.

Prior to 1 April 2015, there was a duty to provide accommodation under section 21 of the National Assistance Act 1948 for a person aged 18 or over who needed 'care and attention' because of illness, disability, old age or another reason, as long as the care and attention was not 'otherwise available'.[3] Under transitional provisions, adults who are in accommodation provided under the National Assistance Act on 1 April 2015 will continue to have their needs met until such time as their case is reviewed. A review should have been carried out by 1 April 2016.[4]

It is arguable that removing the specific statutory duty to provide accommodation, albeit only in connection with a need for care and attention, and replacing it with the Care Act's more general duty to 'meet needs' will make it harder to obtain housing for people with eligible care needs.

Case law relating to the phrase 'care and attention', as found in the National Assistance Act 1948 had held that the phrase had to mean something more than a need solely for accommodation.[5] The principles deriving from those cases apply to the Care Act 2014, so that 'care and support' needs do not include a need for accommodation by itself.[6]

There is potentially a duty to meet eligible needs with the provision of accommodation where the council is providing 'accommodation-related' services.[7] Services are defined as 'accommodation-related' where they are of a sort normally provided in the home (such as domestic tasks, or checking that the home environment is safe), or where they would be 'effectively useless' if the client was homeless. In most cases this decision will be left to the judgment of the council.

In one case, the High Court quashed the council's care and support plan in respect of a vulnerable asylum seeker because the council had not adequately considered whether it may be under a duty to provide accommodation. There was also no evidence that the council had asked itself whether, even if services could have been provided outside a home environment, would they be 'effectively useless' if the client was sleeping on the street.[8]

If assistance is owed under other legislation (for example in cases of overcrowding or health risks arising from housing conditions), assistance under the Care Act will not be available. However, accommodation provided to an asylum seeker under the Immigration and Asylum Act 1999 must be disregarded.[9]

Excluded from support - 'destitution plus' test

The Care Act 2014 excludes persons subject to immigration control who are ineligible for benefits under section 115 of the Immigration and Asylum Act 1999 from assistance under the Care Act where their need for care and support has arisen solely as a result of destitution and/or its effects.[10] This is commonly known as the 'destitution plus' test, and it affects people who are not nationals of an European Economic Area (EEA) state who:[11]

  • require leave to remain but do not have it
  • have leave to remain that is subject to a no recourse to public funds requirement
  • has leave to remain given as the result of a maintenance undertaking.

This mirrors the previous restriction found in s.21(1A) of the National Assistance Act. Where an applicant's need for care and support is increased or made materially more acute by some circumstance other than a 'mere lack of accommodation and funds', then, despite being subject to immigration control, that person qualifies for assistance'.[12]

If social services are responsible for providing Care Act support for an adult asylum seeker, UK Visas and Immigration (UKVI) - formerly the UK Border Agency - will be financially responsible for any other family members such as dependent children.[13]

Excluded from Care Act support - schedule 3

Schedule 3 of the Nationality, Immigration and Asylum Act 2002 does not allow social services to provide care and support, including accommodation, under Part 1 of the Care Act 2014 to certain persons, for example, failed asylum seekers who do not cooperate with removal directions and EEA nationals.[14] See Legislation restricting community care help for details.

It should be noted that schedule 3 exclusions do not apply to children.

Human rights and European Treaty exceptions

Where it is necessary to provide a service or support to avoid a breach of a right under the European Convention on Human Rights (ECHR) or a EU treaty right, provision of a service is not prohibited under schedule 3 to the extent that it is necessary to avoid such breaches.[15] For EU nationals not exercising EU treaty rights, the ECHR may provide a remedy.

When assessing whether there is a breach (and so a duty to provide support), the local authority must look at the effects of not providing support. The threshold at which a failure to provide support will result in a breach of article 3 (the right not to be subjected to torture, inhuman or degrading treatment, or punishment) is high, requiring that an individual faces an imminent prospect of serious suffering caused or materially aggravated by the denial of food, shelter or the most basic necessities of life.[16]

As long as a human rights claim is not 'manifestly unfounded' a local authority should consider its impact on any potential duties it may have.[17]

Examples of human rights and treaty exceptions

In a case concerning a terminally ill EU national, the courts held that the the refusal of a local authority to support him, on the basis that he could return to his country of origin and receive support there, breached his human rights under article 3 and under article 8 (right to respect for private and family life) of the ECHR. Note that the applicant could not argue that there would be a breach of his EU treaty rights as he had no right to reside.[18]

For more examples, see the page Human rights challenges.

Ordinary residence

The local authority in the area where the person is ordinarily resident is empowered to provide care and support. Where the person is in the area of a local authority and has no settled residence, or is not ordinarily resident in that area but is in urgent need of care and support, that authority has the power to provide care and support as if they were resident in their area.[19] Where a person is provided with certain types of accommodation under the Care Act 2014, that person is considered to be ordinarily resident in the area in which he was ordinarily resident immediately beforehand.[20]

Guidance and regulations provide further detail on ordinary residence, including the procedure where there are disputes. See Ordinary residence and continuity of care for more information.

Adults leaving a psychiatric institution after compulsory detention

An ineligible migrant who has been compulsorily detained under section 3 of the Mental Health Act 1983 is entitled to aftercare services, including subsistence and support.[21] Aftercare services can include specialised accommodation, but only where it meets needs directly arising out the ex-patient's condition. Ordinary accommodation cannot be provided under this provision.[22] The duty will fall on the local authority in whose area the person resided before her/his detention, not the authority where the hospital is situated.[23] There are no exclusions based on immigration status and no charges can be made.[24]

A person leaving a psychiatric institution who was not compulsorily detained can argue that s/he qualified for community care assistance, as the need for care and attention would not arise solely through destitution.

Local connection

Where an ineligible migrant has been accommodated by social services under the Care Act 2014, this is not accommodation of her/his choice, and may therefore not give rise to a local connection for the purposes of Part 7 of the Housing Act 1996.[25] See Local connection for more information.

Adults who were (as children) previously in local authority care

See Help for ineligible children and families for further information.

Localism Act 2011

The Localism Act 2011 gives local authorities a 'general power of competence' to do anything for the benefit of residents or those present in its area.[26] This power could be used, for example, to fund travel back to a person's country of origin.[27] It cannot be used to assist persons who are excluded by Schedule 3 of the Nationality, Immigration and Asylum Act 2002 unless a failure to do so would result in a breach of their human or European Treaty rights (see Legislation restricting community care help for details). In that case, the power becomes a duty where there is no other statutory basis for providing assistance.[28] However local authorities must not give assistance under the Localism Act where they are prohibited from providing it by other legislation.[29]

In a case where an EEA national (who had no right to reside) could not be accommodated under the Care Act because he was seeking accommodation only, the High Court held that the local authority could not provide him with housing assistance under the Localism Act because section 185 of the Housing Act 1996 prohibits the provision of accommodation to a person from abroad who is ineligible for housing assistance. In this case, the applicant had no right to reside and therefore fell within the exclusion.[30] This judgment casts doubt on another case in which a local authority was required to provide accommodation under the Localism Act to an EEA national who had no right to reside in order to avoid a breach of article 3.[31]

Victims of trafficking and modern slavery

Human trafficking is when a person is moved from one place to another in conditions of exploitation.[32] The reasons for trafficking include carrying out forced labour, or domestic servitude. Human trafficking is a criminal offence under the Modern Slavery Act 2015.

Neither the housing nor care and support legislation specifically addresses the situation of victims of trafficking.

National Referral Mechanism

The National Referral Mechanism (NRM) is a framework for identifying and supporting victims of human trafficking set up by the UK government in response to its obligations under the EU 'Anti-Trafficking Directive'.[33]

The conditions for making a referral to the NRM and the procedure which the NRM follows when making its decision is set out in the National referral mechanism guidance: adult, and also in Victims of modern slavery: guidance for frontline staff. The government has produced separate guidance for child victims.

Only certain agencies (known as 'first responders') may refer an individual to the NRM. They include:

  • police forces
  • local authorities
  • UKVI
  • Salvation Army
  • Barnardos.

If there are reasonable grounds for believing an individual is a potential victim of human trafficking, the potential victim will, if required, be:

  • allocated a government-funded place within a safe house
  • granted a 45-day 'reflection and recovery' period - this can be extended.

The NRM will issue a 'conclusive grounds' decision, usually as soon as possible following the 45-day reflection and recovery period. An adult who receives a positive conclusive grounds decision can apply for discretionary leave to remain.

The Home Office's Victims of human trafficking: competent authority guidance states that discretionary leave should be granted for at least one year if an adult with a positive conclusive grounds decision will be cooperating in a police investigation into the trafficking (in which case the police must make the application), and is otherwise at the discretion of the Home Office depending on the victim's personal circumstances. Alternatively the victim may be assisted to return to her/his country of origin.

The Court of Appeal has held that guidance as to when discretionary leave may be granted must accurately reflect article 14(1)(a) of the Council of Europe Convention on Action against Trafficking in Human Beings 2005, to which the UK government is a signatory. Article 14(1)(a) states that a residence permit should be granted where it is 'necessary' based on the person situation of the victim. Where UK government guidance required that the victim's circumstances must be 'compelling', the Court held such guidance to be unlawful as it introduced a higher threshold test than that in the Convention.[34]

The EU Anti-Trafficking Directive provides that the UK has a duty to assist and support a trafficked person after the end of the 45-day period[35] and the High Court has held that this duty should not be linked to the willingness to assist the police with inquiries into the trafficking. The duty is free-standing.[36]

The support provided should adhere to the Slavery and Trafficking Care Standards produced by the Human Trafficking Foundation (a cross-agency organisation which supports charities and other agencies) as the government has committed to including these in contracts with support providers.

A person who is not recognised as a victim of trafficking may remain in the UK subject to immigration status or may receive assistance to return to her/his country of origin.

Eligibility for homelessness assistance

A victim of trafficking is only eligible for homelessness assistance under Part 7 of the Housing Act 1996 if s/he meets the eligibility criteria. See Persons eligible for assistance: non EEA/EU or  Persons eligible for assistance (EEA/EU). See also chapter 25 of The Homelessness Code of Guidance, which concerns modern slavery and trafficking, and the page People vulnerable for other special reason for information on when a trafficked individual may be in priority need for homelessness assistance.

Accommodation under the Care Act or Localism Act

An adult victim of trafficking who is not eligible for assistance under homelessness legislation may apply to a local authority for assistance under the Care Act 2014 or under the Localism Act 2011. In one case, a local authority conceded it was not prevented from using its residual powers under the Localism Act to provide support and accommodation to an EEA national trafficked into the UK, who could only meet her basic needs by engaging in prostitution, because a failure to assist her would breach article 3 or article 4 ECHR, or her EU Treaty rights.[37]

Resources for advisers

The office of the Independent Anti-Slavery Commissioner provides online information which advisers may find useful. They include an Adult Modern Slavery Protocol for local authorities which is formed of the following resources:

  • Definitions and indicators
  • Guide to statutory duties and powers
  • NRM process guide and referral pathway.

The Passage have produced a handbook aimed at workers in the homelessness sector which identifies types of trafficking and modern slavery and possible indicators. It also gives a brief overview of the process under the National Referral Mechanism.

Wales

Help for ineligible migrants in Wales or visit Shelter Cymru for information relating Wales..

[1] ss.18 and 19 Care Act 2014.

[2] s.8(1) Care Act 2014.

[3] s.21 National Assistance Act 1948, repealed in England by para 5 of the Schedule to the Care Act 2014 and Children and Families Act 2014 (Consequential Amendments) Order 2015 SI 2015/914.

[4] Care Act 2014 (Transitional Provision) Order 2015 SI 2015/995.

[5] R (on the application of M) v Slough BC [2008] UKHL 52; R (on the application of Wahid) v Tower Hamlets LBC [2002] EWCA Civ.

[6] R (on the application of GS) v Camden LBC [2016] EWHC 1762 (Admin); R (on the application of SG) v Haringey LBC [2015] EWHC 2579 (Admin); R (on the application of AR) v Hammersmith and Fulham LBC [2018] EWHC 3453 (Admin).

[7] R (on the application of SL) v Westminster CC [2013] UKSC 27.

[8] R (on the application of SG) v Haringey LBC [2015] EWHC 2579 (Admin).

[9] R (on the application of Westminster CC) v National Asylum Support Service [2002] UKHL 38.

[10] s.21 Care Act 2014.

[11] s.115 Immigration and Asylum Act 1999.

[12] R v Wandsworth ex p O; R v Leicester CC ex p Bhikha (2000) 33 HLR 419, CA; see also R (on the application of Mani) v Lambeth LBC [2003] EWCA Civ 836, Westminster CC v National Asylum Support Service [2002] UKHL 38, [2002] 4 All ER 654.

[13] R (on the application of O) v LB Haringey [2003] EWHC 2798.

[14] Sch.3 Nationality, Immigration and Asylum Act 2002 as amended by Asylum and Immigration (Treatment of Claimants etc) Act 2004, and by Care Act 2014 and Children and Families Act 2014 (Consequential Amendments) Order 2015 SI 2015/914 (see para 67 of the Schedule to the Order).

[15] para 3 Sch.3 Nationality, Immigration and Asylum Act 2002; Croydon LBC and another v R (on the application of AW, A and Y) [2007] EWCA Civ 266.

[16] R (on the application of Limbuela, Tesema and Adam) v Secretary of State for the Home Department [2005] UKHL 66.

[17] Binomugisha v Southwark LBC [2006] EWHC 2254.

[18] R (on the application of De Almeida) v Kensington and Chelsea RLB [2012] EWHC 1082 (Admin).

[19] s.19 Care Act 2014.

[20] Care and Support (Ordinary Residence) (Specified Accommodation Regulations 2014 SI 2014/2828.

[21] s.117 Mental Health Act 1983.

[22] R (on the application of Afework) V Camden LBC [2013] EWHC 1637.

[23] R (on the application of Sunderland CC) v South Tyneside Council and (1) SF (2) Leeds CC (Interested parties) [2012] EWCA Civ 1232; R (on the application of Hertfordshire CC v Hammersmith and Fulham LBC [2011] EWCA Civ 77.

[24] R (on the application of Stennett) v Manchester CC [2002] UKHL 34, 2002 5 CCLR 500.

[25] Ciftici v Haringey LBC [2003], Legal Action, January 2004, 32.

[26] s.1 Localism Act 2011.

[27] R (on the application of Grant) v Lambeth LBC [2004] EWCA Civ 1711.

[28] s.6 Human Rights Act 1998 and para 3, Sch 3 Nationality, Immigration and Asylum Act 2002.

[29] s.2 Localism Act 2011.

[30] R (on the application of AR) v Hammersmith and Fulham LBC [2018] EWHC 3453 (Admin).

[31] R (on the application of GS) v Camden LBC [2016] EWHC 1762 (Admin).

[32] art 4(a) Council of Europe Convention on Action against Trafficking in Human Beings, 2005.

[33] European Directive on Preventing and Combating Trafficking in Human Beings (2001/36/EU).

[34] R (on the application of PK (Ghana)) v Secretary of State for the Home Department [2018] EWCA Civ 98.

[35] art.11(2) European Directive on Preventing and Combating Trafficking in Human Beings (2001/36/EU).

[36] R (on the application of Galdikas) v Secretary of State for the Home Department [2016] EWHC 942.

[37] AK v Bristol CC CO/1574/2015 16 November 2015, p.45 Legal Action February 2016.

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