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Social Services’ Support – EXCLUSION
UK immigration laws exclude certain migrants and their families from being provided with accommodation and financial assistance by social services, unless refusing to provide support would result in a breach of human rights.
This chapter explains which families, adults or young people leaving care may only be able to receive accommodation and financial support from social services where this is necessary to prevent a breach of their human rights.
Later chapters set out specific steps that must be taken when assessing eligibility for providing social services’ support for children, adults with disabilities and other vulnerable groups.
For further information, refer to the NRPF Network’s guidance on ‘When and how to undertake a human rights assessment’ and the ‘Human Rights Assessment Template’.
Key points
- Assistance provided by social services is not a public fund for immigration purposes and cannot be automatically refused to a person solely on that basis.
- However, the ‘Schedule 3’ exclusion restricts a local authority’s ability to provide accommodation and financial support to a person who is ‘in breach of immigration rules’, and some other groups, where the person can return to their country of origin to avoid destitution.
- When the exclusion applies to a person or family who has been assessed as eligible for social services’ support, including the provision of community care services, the local authority would need to also undertake a human rights assessment to consider whether there are any legal or practical barriers preventing the person or family from returning to their country of origin.
- People ‘in breach of immigration law’ should always be supported to access immigration advice because an outstanding application to the Home Office constitutes a legal barrier to returning to country of origin and may be the determining factor in the Human Rights Assessment as to whether a person can reasonably be expected to
leave the UK.
7.1 Schedule 3 Exclusion
Assistance provided by social services is not a public fund for immigration purposes and should not be refused on the basis that the person has no recourse to public funds (NRPF).
However, Section 54 and Schedule 3 of the Nationality Immigration Asylum Act 2002 contains an exclusion that may limit whether accommodation and financial support can be provided by social services to certain people depending on their nationality and immigration status. Support or assistance may only be provided to a person who is in an excluded group when this is necessary to prevent a breach of their human rights.
The purpose of Schedule 3 is to restrict access to support when a person is in an excluded group and they are either without leave to remain in the UK, or can no longer support themselves and their family, and instead can avoid a situation of destitution in the UK by returning to their country of origin, where they are not subject to restrictions on employment and services.
When a person is in an excluded group, the local authority has a legal obligation to consider return to country of origin as an alternative to spending financial resources on supporting people who have not been able to successfully establish a right to remain in the UK.
The local authority will undertake a human rights assessment to consider whether return to country of origin is possible or whether there is a legal or practical barrier preventing this, for example, an immigration application pending with the Home Office which has not yet been decided.
Undertaking a human rights assessment will involve having regard to decisions made by the Home Office or appeal courts, and the local authority will be required to provide support whilst any human rights claims remain outstanding.
The NRPF Network has developed a Human Rights Assessment Template that is available on the NRPF Network guidance pages.
Data from local authorities using the NRPF Connect database demonstrates that 83% of families and 60% of adults with care and support leave social services support following a grant of Leave to Remain or a change in immigration status allowing recourse to public funds. 49
Assistance cannot automatically be refused when a person is in an excluded group because social services’ support can be provided when this is necessary to prevent a breach of human rights. The local authority will need to undertake a human rights assessment to establish whether or not support can be provided.
Local authorities must therefore be aware that in many cases return to country of origin is not going to be an appropriate option for the family or adult. Despite low return rates, the undertaking of a Human Rights Assessment may nevertheless help the local authority establish a route out of social services’ support, including making a referral to an immigration adviser if it is believed return to country of origin is not appropriate or possible.
It is often the case, for example, that people in the exclusion group who do not have an immigration claim outstanding and who have become destitute or homeless, have been told or believe that their only remaining legal option is voluntary return – however given an opportunity to access safe accommodation and legal advice, they may be able to establish they are eligible to make a successful claim for leave to remain. When the exclusion is applied correctly, the local authority will ensure that they are considering all options available to a person to avoid remaining in the UK in a situation of destitution.50
Assistance cannot automatically be refused when a person is in an excluded group because social services’ support can be provided when this is necessary to prevent a breach of human rights. The local authority will need to undertake a human rights assessment to establish whether or not support can be provided.
49 NRPF Network data from 72 local authorities, NRPF Connect annual report 2021-22
50 NRPF Network data for 50 local authorities, NRPF Connect annual report 2017-18
7.2 Type of Assistance Subject to Schedule 3
The Schedule 3 exclusion only applies to the types of social services’ assistance listed in the table below.
| SUPPORT OR ASSISTANCE | LEGISLATION |
Accommodation and financial support provided to a family to meet a child’s needs | Section 22 of the Children (Scotland) Act 1995 |
Aftercare, including accommodation, provided to a young person leaving care who is age 18 or older
| Sections 29-30 of the Children (Scotland) Act 1995 |
Care and support, including accommodation, provided to an adult in need
| Sections 12 or 13A of the Social Work (Scotland) Act 1968 |
Additionally, temporary accommodation provided under Part II of the Housing (Scotland) Act 1987 to a person who has requested that the local authority reviews its decision on a homeless application is subject to the exclusion.
The Schedule 3 exclusion does not prevent the local authority from undertaking a needs assessment, meeting urgent needs whilst assessments are being carried out, or providing services that are administered under legislation that is not listed in the table above.
For more information, see:
7.3 Excluded Group
When a person qualifies for social services’ support, their immigration status will determine whether Schedule 3 applies and, therefore, whether a human rights assessment will need to be carried out.
Schedule 3 applies to a person when they are in one of the following groups:
- A person who is ‘in breach of immigration laws’ and is not seeking asylum (paragraph 7).
- An Appeal Rights Exhausted (ARE) asylum seeker who has failed to comply with removal directions, which could apply when a person has not followed return arrangements that have been set by the Home Office (paragraph 6).
- A person with refugee status granted by a European Economic Area (EEA) state (paragraph 4).
Schedule 3 also applies to an ARE asylum seeker with dependent children who has been certified by the Home Office as failing to take steps to leave the UK voluntarily (paragraph 7A). However, as such certifications are not currently issued by the Home Office, people in this position will not be encountered by local authorities and this group has not been referenced on the template.
In practice, the majority of people who are subject to Schedule 3 will fall under paragraph 7 due to being ‘in breach of immigration laws’.
When is a person ‘in breach of immigration laws’? A person will be ‘in breach of immigration laws’ if they have one of the following types of immigration status:
- Visa overstayer
- Illegal entrant
- ARE in-country asylum seeker (who claimed asylum after entering the UK rather than at a port of entry)
- ARE following the expiry of Unaccompanied Asylum Seeking Child (UASC) leave and any subsequent claims
- ARE following an unsuccessful immigration claim
- EEA national who was living in the UK by 31 December 2020 and missed the deadline to apply to the EU Settlement Scheme
- EEA national who has been refused settled and pre-settled status under the EU Settlement Scheme
7.4 Asylum Seekers
Schedule 3 does not apply to a person who is seeking asylum or to a ‘port’ asylum claimant who becomes ARE.
When a person with a pending asylum claim or appeal that has not been finally determined meets the eligibility criteria for social services’ support, a human rights assessment should not be carried out.
If a person’s asylum claim has been finally determined and they become ARE, confirmation of whether they are a ‘port’ or ‘in-country’ asylum claimant will need to be obtained from the Home Office. This information is necessary because Schedule 3 only applies if the person claimed asylum ‘in-country’. It does not apply if they are classed as a ‘port’ claimant.
See: R(AW) v London Borough of Croydon [2005] EWHC 2950.
According to Home Office immigration statistics for the year ending June 2021, in 2020, about 16% of people seeking asylum claimed at port and 85% claimed in-country. 15% of Unaccompanied Asylum Seeking Children (UASC) were classed as ‘port’ claimants.
However, a local authority with a sea port or airport in its area may be supporting a greater proportion of care leavers who are deemed to be ‘port’ rather than ‘in-country’ asylum claimants.
7.5 EEA Nationals
Following the end of European free movement in the UK on 31 December 2020, Schedule 3 was amended to reflect the subsequent changes to the residence rights of EEA nationals and their family members. An EEA national is no longer subject to Schedule 3 on the basis of their nationality.
Instead, Schedule 3 now only applies to an EEA national when they are ‘in breach of immigration laws’.
However, applying Schedule 3 when an EEA national is ‘in breach of immigration laws’ has become unworkable when the person has an entitlement to apply to the EU Settlement Scheme. For more information about how to proceed in such cases, see chapter 6 of the NRPF Network’s guidance on undertaking a human rights assessment.
7.6 Children Under 18
The Schedule 3 exclusion will only apply to children under 18 when they are within families who require accommodation and financial support. As the local authority has general duty to promote the upbringing of children by their family, local authorities are required to resolve the situation of the family as a whole, for example, by providing accommodation and financial support or considering return to the parent’s country of origin.51
The Schedule 3 exclusion does not apply to children under 18 receiving other forms of social services’ support or looked after children under 18, but will apply to a young person leaving care when they are age 18 or older and are in an excluded group.
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51 Section 22(1)(b) of the Children (Scotland) Act 1995; M v London Borough of Islington & Anor
[2004] EWCA Civ 235.
7.7 Human Rights Assessment
The Schedule 3 exclusion does not prevent the provision of support (whether under a power or duty), where this is necessary to avoid a breach of the person or family’s human rights – for example, where a person would otherwise be homeless or destitute, resulting in a breach of Articles 3 or 8 of the European Convention on Human Rights (ECHR).52
This exception means that support can only be withheld in instances where the person or family can avoid a breach of human rights, which may occur if they remain destitute in the UK, by returning to their country of origin where they may be able to access employment and receive services.
In practice this means that, along with establishing whether an adult or child is in need through social care assessments, the local authority must undertake a human rights assessment in order to identify whether there are any legal or practical barriers preventing the person or family’s return to their country of origin. It will be up to each local authority to decide whether social workers or other officers will be responsible for undertaking these assessments and it will be important for staff that do so to be appropriately trained and supported.
For more information about human rights assessments and a template to help undertake an assessment, see The NRPF Network’s guidance for councils on human rights assessments.53
For more information, see:
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52 Paragraph 3 of Schedule 3 of the Nationality, Immigration and Asylum Act 2002
53 NRPF Network, Guidance for Council Officers Working with People with No Recourse to Public Funds who are Destitute or at risk of Homelessness,
7.8 When the Exclusion does not Apply
The Schedule 3 exclusion will not apply to everyone that requests support from the local authority, so it is important that such people are correctly identified.
The exclusion does not apply to a person with one of the following types of immigration status:
- Leave to remain with no recourse to public funds (NRPF)
- Leave to remain in the UK that has been extended by section 3C of the
ImmigrationAct 1971 - Settled status (indefinite leave to remain)
- Pre-settled status (five years’ limited leave to remain)
- Pending EU Settlement Scheme application (made ‘in-time’ before 30 June
2021 whilst exercising a right to reside on 31 December 2020) - EU Settlement Scheme family permit
- Asylum seeker (waiting for the Home Office or appeal courts to decide their asylum claim)
- Appeal rights exhausted (ARE) asylum seeker who claimed asylum at port
of entry rather than in-country 54
Such people are not excluded from social services’ support and would need to be provided with assistance if they are eligible following a GIRFEC or community care assessment. A human rights assessment is not required to determine whether support can be provided.
This means that local authorities will often be required to provide support to families where the parent is lawfully present, for example, has limited leave to remain with NRPF or pre-settled status.
For more information, see:
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54 This distinction is set out in the case: AW, R (on the application of) v London Borough of Croydon [2005] EWHC 2950 (QB).
7.9 Duty to Inform the Home Office
Paragraph 14 of Schedule 3 of the Nationality, Immigration and Asylum Act 2002 requires a local authority to inform the Home Office when a person requesting support is, or may be, excluded from receiving support or assistance because they are a person without leave, for example:
- Visa overstayer,
- Illegal entrant
- ARE asylum seeker (who claimed asylum in-country) or who has not complied with removal directions set by the Home Office, for example, to leave the UK on a specific date
This requirement must be considered in line with local authorities’ duties to comply with relevant data protection legislation, including the Data Protection Act 2018 and the GDPR, particularly in circumstances in which people require social work assistance but do not consent to sharing of their data with the Home Office. It is advisable for social workers and other officers to consult their legal teams and for the local authority to set out its approach within data sharing policies.
For more information, see: