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Pathways Out of Destitution
This chapter sets out what a local authority may need to do to help a person or family with NRPF establish a pathway out of dependency on social services’ support.
It can also be referred to by local authorities and other organisations to advise people at the point of presentation to a service, where there may be an opportunity to take immediate steps to prevent a situation of homelessness.
Key points
- It will be necessary to explore and discuss the full range of options that may be available to a person who has no recourse to public funds (NRPF) and is at risk of destitution, in order to prevent homelessness or to reduce their current or future need for social services’ support.
- In most cases, establishing a pathway out of destitution will involve accessing specialist immigration advice. It is a criminal offence to provide immigration advice that is specific to a person’s matter unless the adviser is a member of the appropriate regulatory bodies for solicitors and barristers, or is an immigration adviser regulated by the Office of the Immigration Services Commissioner (OISC). Local authorities must therefore ensure that staff do not provide immigration advice to individuals unless they are accredited to do so with the OISC, and should consider establishing lists of local regulated immigration advice services to signpost people to.
- Locally, there may be charities and voluntary sector organisations that can provide advocacy or other forms of holistic support which may facilitate or improve access to legal advice, particularly for vulnerable people. It is good practice for social workers to consider signposting or referring to local third sector organisations that work to prevent migrant destitution at the same time as they assist people or families to access legal advice.
- Where a person has leave to remain with NRPF and is able to work, or is an European Economic Area (EEA) national who can access benefits if they become economically active, then they may be provided with help accessing employment and other forms of support they may be entitled to, such as publicly funded early learning and childcare, and advice about maximising their income.
- The Home Office can fund and arrange travel for people who wish to return to their country of origin, and in some cases can provide additional assistance, or alternatively, the local authority may fund a return. The local authority would need to check whether a person has received legal advice about the consequences of undertaking a voluntary return and signpost a person for advice if they wish to receive this before making a decision to take up return.
13.1 Options Based on Immigration Status
The table below sets out what appropriate action can be taken depending on the person or parent’s immigration status.
| Immigration status | Does the Schedule 3 exclusion apply? | Suggested steps to resolve the case or to prevent a situation of destitution arising |
Leave to remain with NRPF Granted under FM family/private life 10-year settlement route or outside of the rules | No | Signpost to a legal representative to find out whether they can apply to Home Office for leave to be varied to remove the NRPF condition by making a change of conditions application.116 Provide guidance and support with accessing employment. |
Leave to remain with NRPF Granted as the spouse or partner of a British citizen or person with settled status (under 5 or 10-year settlement routes) | No | Signpost to a legal representative to find out what immigration options they have, including whether they can apply for indefinite leave to remain under the domestic violence rule and therefore applyfor the destitution domestic violence concession. 117Provide guidance and support with accessing employment. |
| British National (Overseas) Visa holder with NRPFGranted under BN(O) visa scheme to eligible British National (Overseas) passport holders and their dependents (5 year route to settlement) | No | Signpost to a legal representative to find out whether they can apply to Home Office for leave to be varied to remove the NRPF condition by making a change of conditions application. 118 Provide guidance and support to access employment. |
| EEA national without lawful residence | Yes – unless there is a legal or practical barrier in place preventing the person/family from leaving the UK, or the local authority has otherwise determined that support is necessary to prevent a breach of human rights or EU treaty rights. | Signpost to a specialist benefits or immigration adviser to establish whether a parent or other family member is exercising a right to reside and therefore can access benefits. Support the person to make benefit applications if they appear to be eligible. Make them aware of the EU Settlement Scheme. Provide guidance and support accessing employment. For more information, see:
|
Asylum seeker Has a pending asylum application or is appealing a refusal of their asylum claim | No | Make a referral to a third sector organisation to assist the person or family to apply for section 95 asylum support and chase up the progress of the asylum support application, with the Home Office. NB Some adults cannot be referred to the Home Office for accommodation. For more information, see:
|
Visa overstayer Person without leave | Yes – unless there is a legal or practical barrier in place preventing the person/family from leaving the UK, or the local authority has otherwise determined that support is necessary to prevent a breach of human rights or EU treaty rights. | If there is a barrier to return in place, ensure the status of the barrier is regularly reviewed. Signpost to an immigration adviser for advice about options. Chase up the progress of pending immigration applications with the Home Office. Make them aware of voluntary return options, including information about the Home Office Voluntary Returns Service. In-country ARE asylum seekers only– find out whether asylum support may be available from the Home Office, but note that a family can only be referred for section 4 support when this is available and will be sufficient to meet the needs of the child. For more information, see:
|
| ARE asylum seeker (who claimed asylum at port of entry) | No | Signpost to an immigration adviser for advice about options to pursue asylum case or other claims. Make them aware of voluntary return options, including information about the Home Office Voluntary Returns Service. For more information, see:
|
| Ukrainian person or family member without leave to remain | Yes | Signpost to an immigration adviser for advice about options to make an application under the Ukrainian schemes. |
Good practice examples
EEA family
An EEA national mother is helped to get back into employment following a referral to the Council’s employment service. The NRPF worker helped her to find childcare close to her place of employment and to document her wages for three months in order to make a successful benefits claim, so she was no longer reliant on social services’ to fund their accommodation and living needs.
Non-EEA family
The local authority was informed directly by the Home Office through NRPF Connect that a parent had been granted leave to remain with recourse to public funds. The social worker could then help the family to access social security benefits and homelessness assistance as soon as the immigration documentation was issued, reducing the delay that often occurs when families transfer to mainstream benefits.
13.2 How to Find a Legal Aid Lawyer or OISC Adviser
It is a criminal offence to provide immigration advice that is specific to a person’s matter unless the adviser is a member of the appropriate regulatory bodies for solicitors and barristers or is an immigration adviser regulated by the Office of the Immigration Services Commissioner (OISC). 119
Therefore, it is not appropriate for a social worker or other local authority officer to advise a person about the specifics of their immigration case, or to make a judgement on whether they have grounds for a particular type of application and the merits of such an application. Instead, they will need to signpost the person to a legal aid lawyer or OISC regulated adviser.
To find a local legal aid lawyer, local authority staff may refer to:
- The Law Society of Scotland’s register of lawyers who are registered to practice in Scotland, which can be searched by the area of law in which they practice. Please note however that not all lawyers on this register will necessarily accept legal aid in payment for services. 120
To find an OISC registered adviser, local authority staff may refer to:
- The OISC’s a register of accredited advisers. Note that there are relatively few OISC registered advisers in Scotland who offer independent advice, as most of this work is undertaken by legal aid lawyers. 121
For more information, see:
13.3 Other Advocacy Support and Free Advice Providers
Locally, there may be charities and voluntary sector organisations that provide advocacy or other forms of holistic support which can facilitate or improve access to legal advice, particularly for vulnerable people.
It is good practice for social workers to consider signposting or referring to these organisations at the same time as they assist people or families to access legal advice.
13.4 Home Office Voluntary Returns Service
Local authority staff will need to be aware of services available to a person who expresses an intention to return to their country of origin, or where this may be an option if social services’ support is refused or withdrawn on the basis that a person who is in an excluded group can avoid a breach of human rights by returning to their country of origin.
It is a criminal offence to provide immigration advice that is specific to a person’s matter unless the adviser is a member of the appropriate regulatory bodies for solicitors and barristers, or is an immigration adviser regulated by the Office of the Immigration Services Commissioner (OISC). A person may need to be signposted to an immigration adviser if they are considering return, or if the local authority has determined through a human rights assessment that there are no legal or practical barriers preventing return.
The Home Office can fund and arrange travel for people who wish to return to their country of origin, and in some cases can provide additional assistance. 122
Any person who is living in the UK without leave or has been refused leave to enter or stay in the UK can apply to undertake a voluntary return. The Home Office will organise and fund the flight, but will expect the person to arrange their own documentation if they do not already have this. The Home Office can normally only provide additional support in obtaining documentation when a person has a vulnerability which means that it would be difficult for them to do this by themselves.
Most people and families supported by the local authority should be eligible to receive more assistance with their return.
An assisted return may be available to:
- Families with children under 18
- People who have claimed asylum and have been refused or wish to withdraw their application
- Children under 18 travelling alone
- Survivors of trafficking or modern slavery
- People who previously had discretionary leave to remain that has since expired
- People who need more help with their return, for example, due to a medical condition
An assisted return involves the Home Office arranging and funding flights, a financial reintegration package and additional support on a case by case basis. The method by which the reintegration package is provided depends on which country the person is returning to.
The Home Office administers all voluntary returns and, although will be able to answer questions about the returns process, does not provide independent and confidential advice to people who are considering return.
It is important to note that people undertaking a voluntary return that is funded by the Home Office (with or without a reintegration package), will be subject to a re-entry ban of two or five years, depending on how long they were in the UK after being issued with a liability to removal notice or becoming appeal rights exhausted. This is an important consideration for a person when they are deciding whether or not to take up a voluntary return, for example, where a person is in a relationship with a British Citizen they may be able to apply under the Immigration Rules to re-enter the UK in future. A person would need to be signposted to an immigration adviser to find out how long the re-entry ban will be, and what the effect of such a ban might be on their prospects of any future route of return to the UK.
Home Office Voluntary Return Service contacts:
People can apply online: Apply for Voluntary Return
Or contact the helpline: 0300 004 0202
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13.5 Local Authority Funded Return
If return is not possible with assistance from the Home Office, local authorities have a power to fund a family’s return to country of origin. As good practice, an individual should be signposted to an immigration adviser if they are considering return, or if the local authority has determined through a human rights assessment that there are no legal or practical barriers preventing return.
For people with refugee status granted by another EEA state, the Withholding and Withdrawal of Support (Travel Assistance and Temporary Accommodation)Regulations 2002 provide a power to:
- purchase travel tickets to enable the person to return to their country of origin, and
- provide time-bound interim accommodation pending the return to country of origin, but not cash payments.
Alternatively, national embassies may be able to assist with arranging return for EEA nationals.