NRPF Bulletin. Inside this issue. Contents

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1 NRPF Bulletin Issue 42 January 2014 Contents 1 NRPF Connect Update 2 Case law update 3 Policy campaign: NHS (Charges to Overseas Visitors) regulations - call for case studies 4 Introduction to the role of Home Office Local Engagement and Intervention Officers 5 NRPF Training 6 NRPF Network Recruitment Update 7 Regional NRPF Network Meeting Dates Inside this issue The NRPF bulletin provides information and updates on the work of the NRPF Network, and on developments in case law, legislation, policy and practice regarding social services provisions to migrants with no recourse to public funds. The NRPF Network is a network of local authorities and partner organisations focusing on the statutory duties to migrants with NRPF. More information on the NRPF Network can be found at: NRPF Connect database: Local authority team within Intervention & Sanctions Unit (I&SU) fully operational. Following the disbandment of the UKBA in April 2013 and the establishment of the new Home Office Intervention & Sanctions Unit (I&SU) in September 2013, NRPF Connect has finally enjoyed a sustained period of use. Charlotte Kennedy, Local Authority Lead at I&SU reports that NRPF Connect users are seeing the results of further staff joining the newly established Interventions & Sanction Unit (I&SU). Resources are currently being focused on cross checking local authority cases with Home Office databases, providing immigration updates back to the local authorities and ensuring that cases are progressed within barrier casework teams. With the backlog of outstanding actions against cases recorded on NRPF Connect being cleared and positive results achieved, the Home Office and the NRPF Network will again commence bringing new local authorities on board. The sign-up process will be managed by the NRPF Network, for further information, please refer to or contact Henry St Clair Miller Henry.StClairMiller@islington.gov.uk. 1

2 Case Law Update! : Nfuni v Solihull MBC [2013] EWHC 3155 (Admin) - higher educational funding for care leavers There is no duty to provide financial assistance in connection with education or training (section 23C (4) leaving care provisions) if the local authority has determined that the course requested is not suitable for the care leaver given his / her current circumstances. In this case, the claimant s grant of Discretionary Leave to Remain (DLR) had expired, a new asylum application had been made but refused and Solihull Metropolitan Borough Council (MBC) was due to withdraw leaving care support as the claimant was 21 years of age and not in further education. The council s decision was challenged on the basis that the claimant was studying an Early Years foundation course at college and that this course was part of a defined programme of education outlined in the pathway plan. It was argued that a duty to provide higher education funding had been triggered and that this in turn gave rise to a responsibility for the local authority to provide financial support past the age of 21. The challenge was dismissed by the Courts. HJ David Cook emphasised the requirement of the council as decisionmaker to weigh up the benefit to be achieved of attending a course and whether funding should then be provided: A responsible parent must consider in relation to education, what the child is realistically capable of achieving. In this evaluation, immigration status would be a key concern as it must be considered whether the person would be able to finish a course once started. Solihull MBC s decision that the education and welfare needs of the claimant did not require that she attended the requested course was upheld and the claimant referred to Section 4 support for on-going accommodation and subsistence support. This case should be read alongside R (Kebede) V Newcastle City Council (featured in the October Bulletin from the NRPF Network) as both consider the provision of educational funding to care leavers. In Kebede it was ruled that a care leaver with DLR would be entitled to university tuition fees paid for by the local authority. Nfuni provides additional guidance in relation to how immigration status should be taken into account by the local authority when considering the educational needs of the care leaver in the pathway plan.. Case Law Update! Hayet Chikhi (HC) v Secretary of state for work and pensions (and others) [2013] EWHC 3874 Algerian national with British child not entitled to welfare benefits and housing. A claim that the Amending Regulations 2012 (which deny Zambrano cases access to welfare benefits and housing assistance) are discriminatory and not compatible with EU law has been rejected. The Secretary of State for the Department of Work and Pensions made specific reference in their defence to the existence of safety net support under s17 of the Children Act 1989, successfully arguing 2

3 that this prevents a situation whereby a family s situation in the UK would be so severe as to contravene EU law or cause a breach of human rights on account of destitution. It was also upheld that, as in Sanneh v Secretary of State for Work and Pensions and others [2013] EWHC 793 (Admin),that Zambrano does not concern any right to welfare benefit payments and, as considered by Mr Justice Hickinbottom in Sanneh, that There is really no basis for asserting that it is arguable in the light of the authorities that the Zambrano principle extends to cover anything short of a situation where the EU citizen is forced to leave the territory of the EU. It was considered in both cases that where there is a strong case for remaining in the UK for the purposes of family life (Article 8 of the Human Rights Act), this should be pursued through Appendix FM (family members) of the Immigration Rules. In the NRPF Network s witness statement in support of the defendants, particular focus was made on the cost to LAs in supporting Zambrano cases: Nine local authorities [using NRPF Connect] are supporting 500 cases between them at a total annual cost of 7,836,945. Since over a quarter of these cases involve British children, these nine local authorities are spending in the region of 1,959, a year on Zambrano families. Again this cost does not take into account the significant staff time required from highly qualified social workers to oversee the client s assessments and payments. The NRPF Network will continue to campaign against the considerable cost shunts from central to local government as a result of immigration policy and the NRPF condition and advocate for change at the policy level. In light of the position of the courts in this matter, there will also be a requirement on the Home Office to facilitate the quick resolution of NRPF cases through NRPF Connect, a quarter of whose families have British Children. R (Afework) V London Borough of Camden [2013] EWHC 1637 High threshold for accommodation to be provided as part of s117 Mental Health Act (MHA) aftercare package This case confirms that ordinary accommodation can never be provided under s117 of the Mental Health Act 1983 and only in very specific circumstances would a duty to accommodate under s117 MHA arise. Lord Justice Mostyn stated: 19. I therefore hold that as a matter of law s117 (2) is only engaged vis-à-vis accommodation if: 1. The need for accommodation is a direct result of the reason that the ex-patient was detained in the first place ( the original condition ); 2. The requirement is for enhanced specialised accommodation to meet needs directly arising from the original condition; and 3. The ex-patient is being placed in the accommodation on an involuntary (in the sense of being incapacitated) basis arising as a result of the original condition. There is considerable concern amongst legal commentators in relation to the third point because there is no reference to involuntariness or incapacity in the Mental 3

4 Health Act or any prior cases when considering eligibility for aftercare services. The key point remains, however, which is that bare or normal accommodation (e.g. a bed and breakfast placement or private rented flat) can never be provided under s117. In relation to NRPF service provision, if accommodation cannot be provided under s117, the duty to accommodate under s21 (1) (a) National Assistance Act (NAA) 1948 must be considered. Unlike s117 MHA, s21 NAA 1948 is caught by the exclusions to social services support listed under Schedule 3 of the Nationality Immigration and Asylum Act (NIAA) Where a person is caught by the exclusions listed under Schedule 3 NIAA, a Human Rights assessment should be considered to determine whether support is necessary to avoid a breach of human rights and whether return to Country of Origin is a viable alternative to on-going financial support in the UK. MK v Barking & Dagenham LBC (2013) EWHC 3486 (Admin) No power to financially support extended family members of children under Section 17 Children s Act 1989 A mother and her two children were being supported by the local authority under s17 of the Children Act 1989 pending the outcome of the family s article 8 application for leave to remain (in line with the decision made in Birmingham City Council v Clue [2011]). The mother s niece (MK) had been living with the family but was then prevented from doing so by the local authority. MK was an adult, she was a visa over stayer who had been refused leave to remain and was making an in-country appeal against removal directions. It was argued by MK that the local authority s decision would cause her to become destitute and homeless, circumstances that would breach her article 3 and article 8 convention rights under the ECHR. A breach of MK s Human Rights could be avoided if the LA were to exercise its powers under s 17 of the Children Act 1989 or s 1 Localism Act 2011 to provide financial assistance. It was found by the courts that it would be improper use of s17 Children Act to provide accommodation and cash support to MK as this power can only be exercised for the benefit of children and the local authority had already concluded that whether MK resided with the family or not was not essential to the children s welfare. The restriction on the exercise of s17, in that it must be provided with a view to safeguarding or promoting the wellbeing of a child in need, equally prevents the use of s1 of the localism Act 2011 being used as an alternative. A local authority is also explicitly prohibited from circumventing clear statutory prohibitions to mainstream benefits by Schedule 3 Nationality, Immigration and Asylum Act 2002 both under s.17 Children Act 1989 and s.1 Localism Act 2011 (which is now also included in the express list of Schedule 3 prohibitions) in these circumstances. In light of the above considerations, it was confirmed that the 'safety net' for those in MK s situation is central government provision under s.4 Immigration and Asylum Act

5 Policy campaign: NHS (Charges to Overseas Visitors) regulations - call for case studies We are calling for case studies to help us campaign for an important policy concession. The NHS (Charges to Overseas Visitors) Regulations 2011 do not currently exempt NRPF clients in receipt of financial support from social services departments from incurring charges for particular types of secondary healthcare. The NRPF Network are currently putting together a document to submit to the Home Office laying out the case for why such an exemption is required. The key focus of the document will be the contradiction between the local authority duty to support the non-exempt NRPF clients and the absence of any such duty upon the NHS. It will also look at the similarities in the status of NRPF clients who are not exempt from charges and refused asylum seekers who receive support under s.4 or s.95 of the Immigration and Asylum Act 1999 and are exempt. Finally, it will analyse the costs and benefits of charging NRPF clients based on their typical financial situation and, of significant concern, the fact that NHS debt may be used as a reason for refusing applications for Leave to Remain (LTR). Once the document is complete we will be in touch with the NRPF Network for supporting statements and case studies. If you would like prior input into the drafting process or would like further information, daniel.gardiner@islington.gov.uk Introduction to the role of Home Office Local Engagement and Intervention Officers The restructure of the UKBA has led to some significant changes at the local level; the most noticeable perhaps being the replacement of the Local Immigration Teams (LITs) with the Immigration Compliance and Enforcement (ICE) Teams. ICE teams have a scaled back remit from their predecessors and in some cases the NRPF Network is aware that contacts developed with officers from the LITs have been lost. It is important to therefore ensure readers are aware of the role of Local Engagement and Interventions Officers (LEIOs). LEIOs are co-located within ICE Team regions across the UK to effectively support internal and external relationships at a local level, promoting joint working to achieve results based within their areas. Pritpal Bhullar, LEIO for West London, states LEIOs form the local engagement and intervention arm of the Interventions &Sanctions Unit and work closely with partners in their defined geographical area, primarily engaging with local authorities, the NHS, DWP, HMRC, DVLA and the Financial Services Sector. They promote official referral mechanisms for partners and go on to champion priority cases to conclusion, providing partners with regular updates and feedback. A list of LEIOs is provided in the accompanying the bulletin. 5

6 NRPF Training The NRPF Network provides training for local authorities and voluntary sector organisations on a commission-basis. The training covers all aspects of NRPF service provision including the assessment process for adults, children & families and leaving care cases. The training day offers excellent value-for- with money for any organisation working people with NRPF and bookings for 2014 now being made. The learning objectives for the training are: Feedback from November 2013: The training was relevant and useful to my practice and development; the facilitator provided clear information and relevant group work sessions which allowed stimulating debate and learning. The great day endedd with a quiz and yes a sweet touch of chocolates - thumbs up all round and thank you! Ann Munroe, Social Worker, Luton Borough Council. To identify who is eligible and who is not eligible for support under social services legislation. To be able to use legislation and case law to help resolve complex cases. To apply good practice in assessing and supporting individuals and families. To be aware of the resources that are available in order to stay up-to-date with policy and legal developments. 2. NRPF and Human rights Assessments (Children & Families); Weds 19 th February 2014, 10am 4:30pm, Islington Town Hall. 3. NRPF and Human rights Assessments (Care Leavers); Thurs 20 th February 2014, 10am 4:30pm, Islington Town Hall. Open access: The NRPF Network also has three open access training days coming up at a cost of 125 per participant (lunch included). For full details, and to fill out a booking form, visit: nrpfnetwork.org.uk/training/pagg es/tfla.aspx 1. NRPF and Human rights Assessments (Adults); Tues 11 th February 2014, 10am 4:30pm, Islington Town Hall. NRPF Network Recruitment Update A huge thank you to Jennifer Blair, outgoing NRPF Network Officer, for her work for the Network. Jennifer is now training to become a barrister at Garden Court Chambers and remains a key contributor to the NRPF Network. We expect that the newly recruited NRPF Network Officer will be in post by mid- February Until then, we will continue to operatee servicess as effectively as possible but apologies if we are delayed in responding to enquiries during this period. 6

7 Regional NRPF Network Meeting Dates East Midlands Regional NRPF Network 7 th February 2014, 9.30 to 11.30am, Melton Mowbray. For more details pleasee contact: East of England Regional NRPF Network 29 th April 2014, 1-2:30pm, Bury St Edmonds. For more details West Midlands NRPF Meeting 6 th February 2014, to 1.00pm, half day workshop on NRPF. For more details, please contact Dally Panesar: d.panesar@wmsmp.org.uk London Regional NRPF Network 12 th March 2014, 2pm 4pm, Croydon Town Hall. For more details please contact: Viviane.Nicoue@croydon.gov.uk North East Regional NRPF Network 4 th February 2014, Civic Centre, Newcastle-upon-Tyne. For more details, jonathan.nash@newcastle.gov.uk North West Regional NRPF Network 18 th March 2014, pm Manchester Town Halll For more details, john.horgan@manchester.gov.uk Scotland NRPF Network TBC - 27 February 2014, Edinburgh a possibility. For more details, please contact mhoraig@cosla.gov.uk South East Regional NRPF Network TBC. For more details South West Regional NRPF Network 20 th February 2014, Taunton. For more details, dave.newall@swcouncils.gov.uk Wales NRPF Network Date and location TBC. For more details Anne.Hubbard@wsmp.org.uk Yorkshire & Humberside Regional NRPF Network Date and location TBC. For more details For more details on the regional networks, ncluding who can take part, see: nrpfnetwork.org.uk/regionalnet works/pages/default.aspx The NRPF Network is committed to supporting and working with local authorities, the voluntary sector and central government. The Network has over 2,800 members and our website attracts over 1,000 web hits per month. For further information or to unsubscribe, nrpf@islington.gov.uk or Tel: NRPF Network Strategy & Community Partnerships, Islingtonn Town Hall, Upper Street, N1 2UD. 7