Help for adults from abroad who are ineligible for homelessness assistance

How social services or local housing authorities can provide accommodation to adults from abroad who are not eligible for homelessness assistance.

This content applies to England

Covid-19 support for ineligible people from abroad

In R (on the application of Ncube) v Brighton and Hove City Council the High Court has held that during the coronavirus pandemic local authorities can lawfully provide accommodation to people from abroad with the no recourse to public funds (NRPF) condition under section 138 of the Local Government Act 1972 and section 2B of the National Health Service Act 2006.[1] The law allows local authorities to accommodate people in their area, including those with NRPF, where there is an emergency or a disaster that involves danger to life, and to take such steps as they consider appropriate to improve their health. The High Court has held that the Covid-19 pandemic meets the definition of an emergency under section 138 of the 1972 Act.

Previously, in a letter dated 26 March 2020, the Minister for Local Government and Homelessness stated that one of the principles local authorities should adopt during the pandemic is to use alternative powers and funding to assist people with no recourse to public funds who require shelter and other forms of support. On 28 May 2020, the Minister confirmed that the 'no recourse to public funds' (NRPF) condition continues to apply and advised local authorities to use own judgment when deciding what support can be lawfully provided to people with NRPF.

The charity No Recourse to Public Funds Network has published a comprehensive guide to options available to people with NRPF who have been affected by the coronavirus pandemic. The guide includes information on access to the NHS for treatment related to Covid-19 and an overview of benefits which may be available to people with NRPF, because they are not classed as 'public funds'.

People seeking advice on how the pandemic has affected their immigration status should be advised to contact the Home Office’s Coronavirus Immigration Help Centre, an immigration solicitor, or a certified immigration adviser.

For more information about the impact of the Covid-19 pandemic on housing see Coronavirus (Covid-19) and housing.

Support under the Care Act 2014

Under the Care Act 2014 social services have:[2]

  • a duty to meet an adult's 'eligible' care and support needs

  • a power to meet ineligible needs

Needs can be met in a number of ways, including by providing accommodation.[3]

The general position is that for a duty to provide accommodation under the Care Act 2014 to arise, the person must have been assessed as in need of care and support that cannot be met without providing them with somewhere to live. A stand alone need for accommodation is not a need for 'care and support' within the Act.

Where the local authority is providing services under the Care Act, there may be a duty to provide accommodation if the services are classed as accommodation-related.[4]

Services are accommodation-related if they:

  • are normally provided in the home, for example domestic tasks, or checking that the home environment is safe

  • would be 'effectively useless' if the person was homeless

In most cases the local authority can decide whether services are accommodation-related.

For adult people from abroad, 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.

'Destitution plus' test for people from abroad

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 or its effects.[5]

This is commonly known as the 'destitution plus' test, and it affects people who:[6]

  • 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

A person subject to immigration control qualifies for assistance under the Care Act 2014 if their need for care and support is increased or made materially more acute by some circumstance other than a 'mere lack of accommodation and funds'.[7]

Care Act support for asylum seekers

Support under the Care Act is not be available if the person is entitled to assistance under different legislation. The only exception is accommodation provided by the Home Office to asylum seekers under the Immigration and Asylum Act 1999: if an asylum seeker meets the criteria for assistance from social services under the Care Act, social services have a duty to provide accommodation and support even if the asylum seeker is housed by the Home Office.[8]

If social services are responsible for providing Care Act support for an adult asylum seeker, UK Visas and Immigration (UKVI) are financially responsible for any other family members such as dependent children.[9]

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 might 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, they would be 'effectively useless' if the client was sleeping on the street.[10]

Asylum seekers may be entitled to support from the Home Office where their needs do not meet the eligibility criteria under the Care Act.

People excluded from Care Act support 

Schedule 3 of the Nationality, Immigration and Asylum Act 2002 excludes certain people from abroad from accessing care and support under the Care Act 2014.[11]

Schedule 3 exclusions do not apply to children.

The local authority can provide support under the Care Act if failure to do so would result in a breach of human rights.

Human rights 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 (EHCR), provision of a service is not prohibited under schedule 3 to the extent that it is necessary to avoid such breaches.[12]

When assessing whether a breach of human rights may occur, the local authority must look at the effects of not providing support.

Article 3 of EHCR is the right not to be subjected to torture, inhuman or degrading treatment or punishment. The threshold at which a failure to provide support will breach this right is high. It requires an imminent prospect of serious suffering caused or materially aggravated by the denial of food, shelter or the most basic necessities of life.[13]

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.[14]

Examples of human rights and treaty exceptions

In a case concerning a terminally ill EU national, the courts held that the local authority's refusal 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.[15]

Local authority responsible for providing support

The local authority in the area where the person is ordinarily resident is responsible for providing care and support.

The local authority has the power to provide care and support as if the person was resident in their area if the person is:[16]

  • in the area of a local authority and has no settled residence

  • not ordinarily resident in the local authority area but is in urgent need of care and support

For certain types of accommodation under the Care Act 2014, a person is considered to be ordinarily resident in the area in which they were ordinarily resident immediately before support was provided.[17]

Guidance and regulations provide further detail on ordinary residence, including the procedure where there are disputes.

Support for adults leaving a psychiatric institution after compulsory detention

An ineligible person from abroad who has been compulsorily detained under section 3 of the Mental Health Act 1983 is entitled to aftercare services, including subsistence and support.[18]

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.[19] The duty will fall on the local authority in the area where the person resided before their detention, not the authority where the hospital is situated.[20]

There are no exclusions based on immigration status and no charges can be made.[21]

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

Power to provide support under the Localism Act 

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.[22]

The power under the Localism Act could be used, for example, to fund travel back to a person's country of origin.[23] 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 rights.

Before the UK left the EU on 1 January 2021, the powers under Localism Act could be also used to assist people excluded by Schedule 3 of the Nationality, Immigration and Asylum Act 2002 if a failure to do so would result in a breach of their rights under EU law.[24]

The power to provide assistance under the Localism Act 2011 becomes a duty where:[25]

  • the person's human rights could be breached

  • there is no other statutory basis for providing assistance

Local authorities must not give assistance under the Localism Act where they are prohibited from providing it by other legislation.[26]

In a case where an ineligible EEA national did not qualify for accommodation under the Care Act, 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 under EU law and therefore was statutorily excluded.[27] 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.[28]

Accommodation for victims of trafficking and modern slavery

Human trafficking is when a person is moved from one place to another in conditions of exploitation.[29] The reasons for trafficking include carrying out forced labour, or domestic servitude. Human trafficking is a criminal offence under the Modern Slavery Act 2015.

Eligibility for homelessness assistance

A victim of trafficking is only eligible for homelessness assistance under Part 7 of the Housing Act 1996 if they meet the eligibility criteria. A trafficked person who is eligible for homelessness assistance may be in priority need if they are vulnerable.

Chapter 25 of The Homelessness Code of Guidance has further information on modern slavery and trafficking.

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. Even if the person is excluded from this kind of support, they may be entitled to assistance if a failure to provide it would result in a breach of their human rights.

Before 1 January 2021, a statutorily excluded person could assisted under the Localism Act or Care Act if a failure to do so would result in a breach of their rights under EU Treaties.[30]

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[31]

National Referral Mechanism

In response to its obligations under the EU Anti-Trafficking Directive,[32] in 2009 the UK government set up the National Referral Mechanism (NRM). NRM is a framework for identifying and supporting victims of human trafficking.

The conditions for making a referral to the NRM and the procedure which the NRM follows when making its decision are 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 issues 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 their country of origin.

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 their country of origin.

Impact of the UK leaving the EU on application of the EU Anti-Trafficking Directive

From 1 January 2021, the UK is no longer bound by EU law. Domestic legislation and policy guidance continue to apply, including the Modern Slavery Act.[33] The National Referral Mechanism remains in place.

Resources for advisers

The Independent Anti-Slavery Commissioner provides more information. This includes an Adult Modern Slavery Protocol for local authorities with details of:

  • definitions and indicators

  • guide to statutory duties and powers

  • NRM process guide and referral pathway

Potential impact of rough sleeping on immigration status

From 1 December 2020, in certain circumstances the Home Office may refuse permission to stay in the UK or cancel permission already given if a non-British national is sleeping rough.[34]

On 6 April 2021 the policy was amended to clarify that 'permission may only be refused or cancelled where a person has repeatedly refused suitable offers of support and engaged in persistent anti-social behaviour'. For more information, see the Home Office Grounds for refusal: rough sleeping guidance.

The policy affects:

  • rough sleepers who are in the UK on work, student, visitor or UK ancestry visa

  • some victims of human trafficking and slavery, depending what type of status they have been granted by the Home Office

  • EU/EEA nationals who did not apply to the EU Settlement Scheme before 30 June 2021

  • EU/EEA nationals who arrive in the UK after 31 December 2020

The rules do not apply to:[35]

  • most asylum seekers and refugees

  • people with indefinite leave to remain (also known as settlement)

  • EU/EEA nationals and their family members holding or applying for settled or pre-settled status under the EU Settlement Scheme

  • family members applying under Appendix FM

  • those applying to stay in the UK under Article 8 of the European Convention on Human Rights

  • former members of the UK Armed Forces and their family members.

Rough sleeping is defined as ‘sleeping, or bedding down, in the open air (for example on the street or in doorways) or in buildings or other places not designed for habitation (for example sheds, car parks or stations)’.[36]

Immigration advice

Immigration advice is regulated. People whose immigration status may be impacted by sleeping rough or who are worried about breaching the immigration rules should contact a regulated immigration adviser for specialist advice on their options.

Last updated: 4 June 2021

Footnotes

  • [1]

    R (on the application of Ncube) v Brighton and Hove CC [2021] EWHC 578 (Admin); see s. 138 Local Government Act 1972 and s. 2B National Health Service Act 2006.

  • [2]

    ss.18 and 19 Care Act 2014.

  • [3]

    s.8(1) Care Act 2014.

  • [4]

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

  • [5]

    s.21 Care Act 2014.

  • [6]

    s.115 Immigration and Asylum Act 1999, as amended by reg 12 The Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations 2020 SI 2020/1309.

  • [7]

    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.

  • [8]

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

  • [9]

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

  • [10]

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

  • [11]

    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).

  • [12]

    para 3 Sch.3 Nationality, Immigration and Asylum Act 2002; as amended by reg 13(4) The Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations 2020 SI 2020/1309; Croydon LBC and another v R (on the application of AW, A and Y) [2007] EWCA Civ 266; see also R (on the application of Shehab Aburas) v Southwark LBC [2019] EWHC 2754 (Admin).

  • [13]

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

  • [14]

    R (on the application of Limbuela, Tesema and Adam) v Secretary of State for the Home Department [2005] UKHL 66; Binomugisha v Southwark LBC [2006] EWHC 2254.

  • [15]

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

  • [16]

    s.19 Care Act 2014.

  • [17]

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

  • [18]

    s.117 Mental Health Act 1983.

  • [19]

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

  • [20]

    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.

  • [21]

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

  • [22]

    s.1 Localism Act 2011.

  • [23]

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

  • [24]

    see the amendment to para 3 Sch.3 Nationality, Immigration and Asylum Act 2002 implemented by reg 13(4)(a) The Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations 2020 SI 2020/1309.

  • [25]

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

  • [26]

    s.2 Localism Act 2011.

  • [27]

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

  • [28]

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

  • [29]

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

  • [30]

    see the amendment to para 3 Sch.3 Nationality, Immigration and Asylum Act 2002 implemented by reg 13(4)(a) The Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations 2020 SI 2020/1309.

  • [31]

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

  • [32]

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

  • [33]

    see the response to the Question for Home Office UIN HL1945 about plans to incorporate EU Directive 2011/36/EU into domestic law, tabled on 26 February 2020, answered on 11 March 2020 by Baroness Williams of Trafford, the Minister of State at the Home Office.

  • [34]

    paras 9.21.1-2 Statement of Changes to the Immigration Rules HC 813, 22 October 2020.

  • [35]

    para 9.1.1 Statement of Changes to the Immigration Rules HC 813, 22 October 2020.

  • [36]

    p.22 Statement of Changes to the Immigration Rules HC 813, 22 October 2020.