Restrictions on community care help for people from abroad

Restrictions on access to care and support, including accommodation, that may be provided under the Care Act and the Children Act.

This content applies to England

'Destitution plus' test

A person subject to immigration control as defined by section 115 of the Immigration and Asylum Act 1999 is not eligible for care and support.

This includes accommodation under the the Care Act 2014 where the need for care and support has arisen solely because of destitution (or because of the physical effects or anticipated physical effects of destitution).[1]

This is known as the 'destitution plus' test. It affects people who:[2]

  • require leave to remain but do not have it

  • have leave to remain that is subject to a no recourse to public funds requirement

  • have leave to remain given as the result of a maintenance undertaking

A person subject to immigration control qualifies for assistance 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'. They are excluded only if their need for assistance has arisen solely because of destitution. A person subject to immigration control may seek assistance for a number of reasons, for example because of a disability.[3]

NHS care is not classed as 'public funds' for the purposes of section 115 of the Immigration Act.

Categories of people from abroad not eligible for support

Schedule 3 to the Nationality, Immigration and Asylum Act 2002 excludes certain categories of persons from abroad from local authority support.[4]

The Schedule 3 exclusions apply only to adults.

Schedule 3 exclusions apply to support and assistance under:

  • sections 17, 23C, 24A and 24B of the Children Act 1989

  • part 1 of the Care Act 2014

  • section 1 of the Localism Act 2011 (local authority's general power of competence)

  • section 188(3) and section 204 of the Housing Act 1996 (interim accommodation pending the outcome of a section 202 review and accommodation pending the outcome of a section 204 county court appeal)

Practice Guidance for Local Authorities (England) clarifies that Schedule 3 does not prevent local authorities from carrying out the following Care Act functions:[5]

  • assessments

  • meeting urgent needs pending assessment

  • providing information and advice

  • engaging in general prevention measures

Categories of persons excluded from support under Schedule 3

The following categories of persons are excluded from support as a result of Schedule 3:

  • people granted refugee status by another EU/EEA state and their dependants

  • failed asylum seekers and their dependents who do not co-operate with removal directions

  • people in the UK in breach of immigration laws who are not asylum seekers

  • failed asylum seekers with dependent children who are not taking reasonable steps to leave the UK or to put themselves in a position to leave the UK

Residence in breach of immigration laws

A person who is not an asylum seeker, is in the UK in breach of the immigration laws if they:[6]

  • are present in the UK, and

  • do not have a right of abode

  • do not have valid leave to enter or remain  

  • are not exempted from the need to have leave

  • are not an Irish citizen who does not require leave to enter or remain in the UK

Case law has confirmed that people who have not been temporarily admitted to the UK, for example people who have been refused asylum after applying in-country, would be classed as unlawfully present even if they have not been issued with removal directions.[7]

EEA nationals and family members after 31 December 2020

After 31 December 2020, EEA nationals are no longer listed in Schedule 3 as ineligible for support on the basis of their nationality.[8] They would be excluded only if they fell into one of the categories of excluded persons, for example if they were in the UK in breach of immigration laws.

EEA nationals and their family members with pre-settled status or temporary protection are residing in the UK lawfully  even if they do not meet the eligibility criteria for homelessness assistance under Part 7 of the Housing Act 1996.

In most cases, EEA nationals arriving in the UK for the first time after 31 December 2020 will not be able to establish lawful residence based on exercising EU Treaty rights.[9]

No recourse to public funds restriction

Assistance under the Care Act 2014 and Children Act 1989 is not classed as 'public funds'. It is available to persons subject to immigration control who are in the UK lawfully but with a requirement not to have recourse to public funds.

Human rights exceptions from Schedule 3 exclusions

Schedule 3 does not prohibit the authority from providing assistance where it is necessary in order to avoid a breach of a right under the European Convention on Human Rights.[10]

When assessing whether it is necessary to provide assistance, the local authority must look at the effects of not providing support.[11]

Before 1 January 2021, the exception applied also where a failure to assist a person from abroad would result in a breach of their rights under EU Treaties.[12]

Care Act support for failed asylum seekers

An asylum seeker whose claim for asylum has failed or other ineligible person from abroad with care and support needs is eligible for care and support under the Care Act 2014 if they have a reasonable fresh asylum or European Convention on Human Rights claim. The local authority may examine the fresh claim to check that it is not simply repeating the previous claim or lacking any merit.

The High Court held that where there is an outstanding application with the Home Office on the basis of Article 8 rights, the local authority should have done no more than to ask itself whether the application was manifestly unfounded.[13] If the local authority was not in a position to determine whether an outstanding application was manifestly unfounded, it would have to consider whether there would be a breach of Article 3 rights if the claimant was not supported.

Persons returning to their country of origin

A local authority may assist a person who is subject to the Schedule 3 exclusion with making arrangements for:[14]

  • travel to return to their country of origin 

  • accommodation pending travel

This power applies to EEA nationals and their dependants, and to EEA refugees and their dependants. Accommodation pending travel may be provided where the applicant has dependent children. 

The authority may also provide accommodation where a person with a dependent child is in the UK in breach of immigration law, so long as they are complying with removal directions.

NHS services

NHS care is not a 'public fund' for the purposes of section 115 of the Immigration Act 1999. NHS hospital care is subject to charging provisions.[15]

A person who is ordinarily resident in the UK must not be charged for NHS hospital services. NHS bodies and the local authorities must establish whether a person is an overseas visitor who is liable to pay for hospital care, and if so, must recover those charges.

The charging regime for hospital care is complex, and entitlement depends on the type of the person's immigration status.[16]

General Practitioners (GPs) have discretion to register overseas visitors, either fully or as a temporarily resident. They must not refuse registration on the grounds of race, gender, class, age, religion, sexual orientation, appearance, diversity or medical condition. GPs must provide urgent treatment free of charge, even to a person who is not registered.

For more information, see the Department of Health's Guidance on overseas visitors hospital charging regulations.

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.[17]

On 6 April 2021 the rule 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:[18]

  • 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)’.[19]

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]

    s.21 Care Act 2014.

  • [2]

    s.115 Immigration and Asylum Act 1999, as amended by reg 12(7) The Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations 2020 SI 2020/1309.

  • [3]

    R v Wandsworth LBC ex parte O [2000] 1 WLR 2539; [2000] 3 CCLR 237.

  • [4]

    s. 54 and Schedule 3 Nationality, Immigration and Asylum Act 2002.

  • [5]

    Clarification from the Home Office and Department of Health to No Recourse to Public Funds (NRPF) Network by email 29 July 2015.

  • [6]

    para 7 Sch 3 Nationality, Immigration and Asylum Act 2002, as amended.

  • [7]

    R (on the application of M) v Slough BC [2006] EWCA Civ 655.

  • [8]

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

  • [9]

    para 7 Sch 3 Nationality, Immigration and Asylum Act 2002, as amended; s. 50A British Nationality Act 1981 as amended by reg.78(2)(a)(i) The Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations 2020 SI 2020/1309.

  • [10]

    para 3 Sch.3 Nationality, Immigration and Asylum Act 2002 as amended 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; R (on the application of (1) AW (2) A (3) Y) v (1) Croydon LBC (2) Hackney LBC and Secretary of State for the Home Department (Interested Party) [2007] EWCA Civ 266; R (on the application of De Almeida) v Kensington and Chelsea RLBC [2012] EWHC 1082 (Admin).

  • [11]

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

  • [12]

    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.

  • [13]

    Binomugisha v Southwark LBC [2006] EWHC 2254.

  • [14]

    see paras 8,9 and 10 Sch.3 Nationality, Immigration and Asylum Act 2002 and Withholding and Withdrawing of Support (Travel Assistance and Temporary Accommodation) Regulations 2002 SI 2002/3078.

  • [15]

    s.175 National Health Service Act 2006.

  • [16]

    s.39 Immigration Act 2014; Immigration (Health Charge) Order 2015 SI 2015/792.

  • [17]

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

  • [18]

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

  • [19]

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