Key pressures on local authority NRPF service provision 1. Lawfully present migrants who have NRPF Local authorities will have a duty to provide support, under section 17 Children Act 1989 and section 21 National Assistance Act 1948, to migrants who are lawfully present in the UK and meet the relevant eligibility criteria. For example, when a child is destitute, they will be in need, and the local authority will have a duty to provide the family with accommodation and/or subsistence support. Two significant legislative changes made within the last two years have impacted on local authority NRPF service provision. (i) Leave to remain with NRPF On 9 th July 2012 the family migration rules were overhauled; new 10 year routes to settlement were introduced to the Immigration Rules, which are the most common routes under which visa overstaying families will be granted leave to remain (i.e. 10 year parent route; 10 year partner route; private life rules based on long residence in UK). These routes capture people who would have previously been granted discretionary leave to remain in the UK either outside of the rules or under various Home Office policies. Discretionary leave was awarded with full recourse to public funds. Leave to remain under the new routes (and also outside of the Immigration Rules on Article 8 grounds) is granted with NRPF unless the applicant is destitute (i.e. cannot provide for their accommodation and/or essential living needs), or there are compelling reasons relating to the welfare of a child in a low income family. Since 21 st January 2014, a procedure has been in place for migrants, who have this type of immigration status, to request that the NRPF condition is overturned, should they become destitute after leave has been granted. The Home Office policy document relating to this concession has been revised a number of times since it was introduced in July 2012. We have identified that the policy, in relation to the treatment of migrants who are in receipt of local authority support, has been significantly altered. The current position is that Home Office caseworkers will undertake their own assessments of the applicant s destitution. The policy has recently been found by the Upper Tribunal (IAC) to be unlawful in relation to migrants with a disability and those who were granted leave to remain with NRPF on Article 8 grounds prior to 28 th July 2014 (R (on the application of Khadija BA Fakih) v Secretary of State for the Home Department IJR [2014] UKUT 513 (IAC)). See: NRPF Network analysis of policy changes 1
(ii) Derived right to reside Zambrano carers On 8 November 2012, the Immigration (European Economic Area) Regulations 2006 were amended to set out the criteria for non-eea nationals to derive the right to reside in the UK, as the primary carer of a British citizen who is residing in the UK when that British citizen would be unable to reside in the UK or in another EEA State if the non-eea national were required to leave. This principle was imposed as a result of a judgement by the European Court of Justice in 2011. A quarter of households recorded on NRPF Connect include a British child. Those with a derived right of residence on this basis have the right to work. However, on 8 November 2012, welfare benefit and housing regulations were also amended so that people with such a right could not claim the following public funds: Income Support Income related ESA Income based JSA Child Benefit State Pension Credit Child Tax Credit Housing Benefit Local authority homelessness assistance Council Tax Benefit Local authority housing allocation The Court of Appeal has recently heard a case considering the lawfulness of these restrictions; the determination is pending. As these restrictions are imposed by welfare benefit regulations, the only way by which a person with a derived right to reside can access public funds is by making an application for leave to remain under the Immigration Rules (see 1(i) above), although this may not be possible for everyone (see 2(i) below). Key issues for local authorities: Delays in granting leave or removing the NRPF condition for migrants in receipt of local authority support and significant staff time used whilst the Home Office are undertaking their own investigation of destitution. There are instances where local authorities are providing support to a family that are destitute, but the Home Office has determined the family are not destitute for the purpose of granting recourse to public funds, when the same definition of destitution is being worked to. Lack of access to top-up benefits, such as Tax Credits, Child Benefit and Housing Benefit, mean that even if a person is working, they may still be destitute and require local authority assistance. Lack of access to local authority housing means that migrants, with leave to remain with NRPF or a derived right as Zambrano carer, generally only have access to the less affordable private rental market. NRPF Connect indicates that increasing numbers of migrants with leave to remain with NRPF are presenting to local authorities. 2
What is being done? NRPF Steering Group to address areas where there are conflicts in policy understanding between local authorities and the Home Office. NRPF Connect has been opened to the Home Office case working team determining destitution for purpose of granting leave to remain/change of condition, to streamline decision making process. Presentation trends will continue to be monitored on NRPF Connect. 2. Progression of immigration cases (i) Applications for leave to remain There are several barriers that migrants will face in terms of applying for leave to remain. For the NRPF client group, the majority will be making applications that are asserting their Article 8 rights, whether these are under the family migration routes, private life routes or outside of the Immigration Rules. Evidence from NRPF Connect has demonstrated that all resolutions to cases within the first year of the Home Office team s operation were grants of leave to remain, which indicates the majority of NRPF clients have enforceable rights. The key barriers are: Lack of legal aid funding for immigration (i.e. non-asylum) matters o Since 1 April 2013, no legal aid has been available for immigration matters including asserting Article 8 rights (Legal Aid, Sentencing and Punishment of Offenders Act 2012). NHS debts o Under the National Health Service (Charges to Overseas Visitors) Regulations 2011, people unlawfully present can be charged for secondary healthcare. o Leave to remain can be refused on the grounds that a person has an unpaid debt to the NHS of 1000+. Home Office fee waiver policy o Allows a fee waiver for immigration applications under: 10 year parent of a child route; 10 year partner route; private life rules based on long residence in UK and outside the rules Article 8. o The qualifying criteria are that applicant is destitute or there are other exceptional circumstances. o The Administrative Court found the policy to be unlawful and it is currently been revised by the Home Office. Fee waivers will be agreed if terms of previous policy are satisfied. See: NRPF Network news article about Home Office fee waiver policy 3
(ii) Migrants who are refused leave to remain- removals process NRPF Connect has demonstrated that very low numbers of cases are progressed to a final outcome of removal from the UK. If a person unlawfully present is refused leave to remain, they have no right of appeal until a decision to remove them from the UK is issued. Where a migrant is supported by a local authority, the case should be progressed in line with the Home Office removal decision policy. However, there are often significant delays between an application being refused and such removal action commencing. Although restrictions on local authority support exist for people who are unlawfully present (Schedule 3 Nationality Immigration and Asylum Act 2002), KA v Essex County Council (2013) EWHC 43 requires local authorities to continue supporting families under section 17 Children Act 1989 when leave to remain has been refused and until removal directions are served. See: Home Office removal decision policy Key issues for local authorities: Delays and difficulties in resolving cases where migrants are asserting their Article 8 rights, which for the majority result in a grant of leave to remain, and significant staff time used in resolving these issues (for example, getting a fee waiver accepted, or finding legal advice). Whether it is a cost benefit to the local authority and the taxpayer to fill the gap in funding legal advice. Lack of progression of cases where immigration applications have been refused but the local authority has an ongoing duty to support. Immigration applications made by migrants that are in receipt of local authority support are not prioritised. What is being done? NRPF Connect has been opened to the Home Office case working team determining destitution for the purpose of granting fee waivers, to streamline decision making process. Systematic targeting of cases for resolution on NRPF Connect, starting with a family removals pilot. Analysis of the cases on NRPF Connect which have been known to the Home Office for over one year, to identify how many have outstanding applications. 4
3. EEA nationals In 2014 the government introduced a series of restrictions to welfare benefits for EEA nationals by amending the Immigration (EEA) Regulations 2006 and various welfare benefit regulations. The key changes are outlined in the table below. Date implemented Details of change 1 st January 2014 Three month residence in the common travel area required before income based JSA can be awarded (this also affects returning British and Irish Citizens). 1 st January 2014 Jobseeker status can only be retained for 6 months unless there is compelling evidence of a genuine chance of employment. 1 st January 2014 Worker status can only be retained for: six months after becoming unemployed if a person has a genuine prospect of gaining, or more than six months if a person worked for longer than a year before losing their job and if they can provide compelling evidence that they have a genuine chance of employment. 1 st March 2014 Minimum Earnings Threshold applied to establish whether someone is treated as a worker (and therefore has access to benefits) or a jobseeker (with limited/no access to benefits) for: Housing benefit, income based JSA, Child Benefit, Child Tax Credit. This might apply to a person currently in work, or who has recently lost their job, and therefore may retain worker status. 1 st April 2014 Exclusion from housing benefit for EEA jobseekers who are claiming income-based JSA. 1 st July 2014 Genuine Prospect of Work interviews introduced for EEA jobseekers and those with retained worker status after they have claimed income based JSA for 6 months. 1 st July 2014 Three month residence in the common travel area required before Child Benefit and Child Tax Credit can be awarded (this also affects returning British and Irish Citizens). Although restrictions on local authority support exist for EEA nationals and their dependants, the local authority must establish whether the provision of such support is necessary to prevent a breach of human rights or European Community Treaty rights (Schedule 3 Nationality Immigration and Asylum Act 2002), and only if not, can refuse or withdraw a service. Key issues for local authorities Anecdotally, local authorities have reported that they have experienced increasing numbers of EEA nationals presenting, particularly after the 1 April 2014 restriction on housing benefit was introduced. 5
The complexity of establishing a person s right to reside results in a drain on staff time, as well as disputes with local authority housing departments and/or DWP about the EEA national s entitlements. The findings of the Social Security Advisory Committee s consultation on the 1 st April housing benefit restriction for jobseekers includes the requirement for full evidence of the wider burdens to local authorities to be obtained, but the research undertaken by the DWP in relation to this is not adequate. Concern about the consequences of the Government s recently expressed intentions to further restrict access to benefits for EEA workers (who normally have full entitlement). What is being done? See: It may be difficult to measure the full impact of these changes until they have been in force for a longer period. NRPF Connect may capture some evidence of trends in this area, but local authorities in areas with large numbers of EEA nationals are not using the database. NRPF Network news article about housing benefit consultation (includes links to the relevant documents) NRPF Network 22 December 2014 Town Hall, Upper Street, London N1 2UD 6