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 When a person is in an excluded group, support might be refused or withdrawn where the person or family can return to their country of origin to avoid a situation of destitution in the UK.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. 

11.1 Purpose of the Human Rights Assessment

When an adult, young person (age 18+) or parent is in an excluded group, they can only be provided with social services’ support where this is necessary for the purpose of avoiding a breach of their rights under the European Convention on Human Rights (ECHR) or European Union (EU) treaties. ¹⁰⁸

In interpreting this, the Court of Appeal in England, in the case of R(Kimani) v LB Lambeth (2003), found that:

‘A State owes no duty under the Convention to provide support to foreign nationals who are permitted to enter their territory but who are in a position freely to return home.’  ¹⁰⁹

In the case of SSHD v Limbuela (2004), the Court of Appeal found that a decision which compels a person to sleep rough or without shelter and without funds usually amounts to inhuman treatment and therefore engages Article 3 of the ECHR (the right not to be subjected to inhuman or degrading treatment) and Article 8 of the ECHR (right to family and private life). ¹¹⁰

Therefore, where a person can freely return to their country of origin in order to avoid a situation of destitution in the UK, the local authority will not be required to provide support. The High Court in England has determined that the denial of support in such instances does not constitute a breach of human rights. ¹¹¹

However, where a person cannot freely return to their country of origin because a legal or practical barrier prevents them from doing so, and where the local authority has identified that has a duty to provide support because a child or adult has been assessed as in need by social services, then a failure to provide assistance is likely to give rise to a breach of Article 3.

It is possible that human rights considerations would have been made within the holistic GIRFEC assessment or community care needs assessment, but Schedule 3 requires the local authority to specifically consider the person or family’s ability to return to their country of origin. It is therefore recommended that a human rights assessment addressing return is recorded separately from the needs assessment.

For more information, see:

• 7 Social services’ support – exclusion

11.2 Human Rights Assessment

Although the primary purpose of the human rights assessment is to establish the extent to which the local authority is required to support a person or family when the Schedule 3 exclusion applies, the process of undertaking this assessment also performs other important functions as it:

• places an individual’s rights at the forefront of the local authority’s decision making;
• explores solutions to the person or family’s destitution in the UK;
• facilitates an open conversation about available options;
• seeks an alternative to enforced removal by the Home Office;
• provides transparency in the decision making process;
• enables the local authority to clearly explain why, in many cases, support will need to be provided when the exclusion applies;
• assists the local authority to identify what action to take to help a person or family find a pathway out of dependency on social services’ support; and
• enables the local authority to focus resources on the most complex cases rather than those that require a more straightforward assessment.

In order to be able to conclude whether support needs to be provided to prevent a human rights breach, or whether return to country of origin would avoid a human rights breach, the local authority would need to establish the following:

• Whether a legal or practical barrier preventing return applies, such as an outstanding immigration application or appeal that raises human rights grounds, or a medical condition that means the person is not fit to travel.
• What findings have already been made by the Home Office and/or appeal courts on relevant immigration/ asylum decisions.
• When the person last received independent legal advice about their immigration case and whether they have any rounds to pursue further claims.
• Whether return to country of origin would give rise to a breach of human
  rights.

What constitutes a breach of human rights?
The European Convention on Human Rights (ECHR) sets out the human rights people holding the UK. The Human Rights Act 1998 operates to prohibits statutory authorities, including local authorities, from breaching a person’s human rights by their action or inaction.

Key human rights that are relevant in the context of a human rights assessment include:

Article 2 Right to life

• A person may fear return to their own country because they believe they may be unlawfully killed there.

Article 3 Freedom from cruel, inhuman or degrading treatment

• A person may also fear return to their own country because they believe they may be tortured or seriously harmed there.
• Inhuman and degrading treatment also includes intense physical and mental suffering caused by state action or failure to protect. This can include a failure to protect against domestic violence and abuse, or a failure by a state to provide adequate physical or mental health care and support – such that the person’s dignity is violated.

Article 4 Freedom from slavery and forced labour

• Similarly, a person may fear return to their own country because they believe they may be exploited, trafficked or re-trafficked, held in slavery or subjected to forced labour.

Article 8 Right to family and private life

•  A person has a right to maintain their family life, and this includes a right to live with family members present in the UK, and to contest custody of children in family law proceedings in the UK. A person or family who has resided in the UK for a long time, and has built close personal connections to their community and support workers, may have also established a private life, which is also protected by Article 8.

Not all of these steps need to be followed, so some assessments will be more straightforward than others, for example, where a person who is a visa overstayer is waiting for a human rights application to be decided by the Home Office. In such instances, the assessment would simply confirm that the local authority cannot pre-determine the outcome of an application made to the Home Office and is therefore unable to make further enquiries about return whilst such a legal barrier is in place.

For more information about human rights assessments and a template to help undertake an assessment, see the NRPF Network’s guidance for councils.

It is recommended that social workers or other local authority staff who are responsible for undertaking these assessments are appropriately trained and supported by their managers and local authority lawyers.

When immediate assistance appears to be required, for example, to prevent homelessness, the local authority would need to consider whether it is necessary to provide interim support whilst the social care needs assessment and human rights assessment are being undertaken.

For more information, see:

• 6.2 Meeting urgent need – families
• 6.3 Meeting urgent need – adults
• 6.4 Establishing immigration status

The following flowchart is designed to assist with working through the template:

Human rights assessment: how to determine eligibility for support when the adult, young person (18+) or parent is without leave (e.g. a visa overstayer, refused in-country asylum seeker)

11.3 Possible Outcomes

Once the assessment has been completed, the local authority would need to clearly conclude whether support can be provided or whether return is to be recommended.

Potential outcomes and suggestions for what further action may be required depending on the reason for deciding whether to support or not are set out in the table below. Where support is provided, it will be important to undertake regular reviews of this.

For more information, see:

• 13 Pathways out of destitution