Assessments when the exclusion applies

Assessments when the exclusion applies

This chapter provides guidance on how the local authority would undertake a human rights assessment in order to establish eligibility for social services’ support when the exclusion under Schedule 3 of the Nationality, Immigration and Asylum Act 2002 applies. When a person is in an excluded group, support might be refused or withdrawn where the person or family can return to their country of origin to avoid a situation of destitution in the UK.  

This chapter provides guidance on how the local authority would undertake a human rights assessment to establish whether support can be provided when a person or parent (in a family household) is in an excluded group. 

Key points

  • The Schedule 3 exclusion requires local authorities to consider whether or not the person or family is subject to a legal or practical barrier that prevents them from returning to their country of origin. This could include an outstanding immigration application or appeal that raises human rights grounds, or a medical condition that means the person is not fit to travel.
  • The process of undertaking a human rights assessment provides an opportunity for the local authority to identify whether a person needs specialist legal advice, for example, to make a new immigration application, a fresh claim or to explore their options if they do not have recent decisions from the Home Office or courts that can be referred to. 
  • Before return to country of origin can be considered, the local authority must be clear that there are no legal or practical barriers preventing return, so will need to establish whether there are any outstanding immigration claims or appeals pending, which may involve obtaining current information from the Home Office. 
  • Failure to provide assistance to a family, young person, or adult, where social services’ duties apply and a legal or practical barrier prevents them from returning to their country of origin, is likely to constitute a breach of human rights. 
  • In cases where the local authority concludes, following a human rights assessment, that it has no duty to provide support because the person or family can avoid a breach of human rights by returning to their country of origin, the person should be provided with information which may include signposting to: Home Office asylum support, local charities, local immigration advisers and the Home Office Voluntary Returns Service. Where a voluntary return or other support route is being taken up, the local authority would need to consider providing time-bound accommodation and financial support whilst this is being arranged. 
  • Social workers and other local authority staff who are responsible for undertaking these assessments should be appropriately trained and supported by managers and local authority lawyers.