Immigration and Asylum

IMMIGRATION AND ASYLUM

ELIGIBILITY FOR ASSESSMENT

POLICY AND PRACTICE GUIDANCE FOR STAFF

IMMIGRATION AND ASYLUM

ELIGIBILITY FOR ASSESSMENT

POLICY AND PRACTICE GUIDANCE FOR STAFF

CONTENTS / PAGE
1.PolicyStatement / 3
4
2. Purpose
3. Scope
4. LegalContext
5. Definitions: EEA; Common Travel Area; unlawfully present
6. Nationality Immigration and Asylum Act 2002
Eligibility for support
Dutyto inform Secretary of State
5
7. Summary of provision for eligible applicants-
Asylum seekers with care needs
Applicants from EEA countries / 6
7
8.Mandatory Procedures: Assessment
Introduction
AssessmentProcedure
Stage 1 – Preliminary Assessment
Interim Support
Stage 2 – Full Assessment
Criteria – needfor accommodation
Criteria– need forservices / 8
9
10
11
9. Implementation / 11
10. Monitor & Review
Appendix 1 – Home Office Questionnaire / 12
Appendix 2 – Proforma for Notifying Home Office of Proposal to Withhold or Withdraw Support Under Section 54 and Schedule 3 Nationality Immigration and Asylum Act 2002 / 15
Appendix 3 – Useful contacts and websites / 16

IMMIGRATION AND ASYLUM

ASSESSING ELIGIBILITY FOR SUPPORT

POLICY AND PRACTICE GUIDANCE

1. Policy Statement

When someone presents themselves or is referred to the Directorate asking for a service, it is necessary to be sure that they are eligible for that service. Before assessing someone who is not a British National against the criteria of Fair Access to Care Services it is important to clarify their status in relation to their presence in Britain. The Nationality Immigration and Asylum Act 2002 defines which people are entitled to support from a local authority and which are not.

2. Purpose

This policy and guidance is designed to assist staff in making decisions about initial eligibility for care services, so that the Directorate complies with national law and guidance in relation to potential service users who are not British Nationals. It also indicates which other agencies, statutory and voluntary, may offer advice and assistance either to those requesting services or to staff responding to those requests.

3. Scope

This policy applies to all staff who may be called upon to make an initial assessment of need. There is a separate policy relating to unaccompanied migrant children.

This policy focuses primarily on the following groups of people, whose eligibility for services is linked to their status:

People with nationality of a EuropeanEconomicAreaState other than the UK
People with refugee status abroad
People unlawfully in the UK
Failed asylum seekers
Asylum seekers with community care needs

4.Legal Context

See the Border & Immigration Agency website for further information.
The Nationality Immigration and Asylum Act 2002 is the principal legislation on which this policy and guidance are based.
Within the provisions of this Act anyone who is not a British National has a legal right to make a claim to asylum. It is the role of the Home Office to decide on a claim to asylum. The National Asylum Support Service (NASS) is primarily responsible for providing for the support needs of asylum seekers and their children, while other groups of immigrants may be eligible for support from local authority Social Services Directorates.

The Asylum and Immigration (Treatment of claimants etc) Act 2004 which came into force on December 1st 2004 further limits the support allowable to failed asylum seekers.
Unaccompanied asylum-seeking children are the responsibility of the Local Authority and not NASS. In the case of asylum seekers who claim to be under 18 years of age Social Services and Health must consider whether services need to be provided under the Children Act 1989.

This policy and guidance will be reviewed and amended in line with future changes to legislation and government guidance.

5. Definitions

The EEA is the European Economic Area, which includes all EU States plus Norway, Iceland and Liechtenstein.
The Common Travel Area includes the UK, the Republic of Ireland, the Channel Islands and the Isle of Man.
Unlawfully present in the UK refers to those who have entered the UK illegally, or who have stayed beyond the time allowed by their visa, or who are already subject to a deportation order.

6.Nationality Immigration and Asylum Act 2002

6.1 Eligibility for Support

6.1.1 Section 54 and Schedule 3 of the Nationality Immigration and Asylum Act 2002 which came into force on January 8th 2003 prohibit local authorities from providing support under certain legislative provisions to certain categories of people. Section 54 and Schedule 3 do not prohibit local authorities from providing support to the following persons, who are therefore eligible for support:-

People lawfully in the UK who have no recourse to public funds.
People who are subject to Immigration Control whose need for "care and attention" under Section 21 National Assistance Act 1948 arises from circumstances other than destitution alone, unless otherwise ineligible.

6.2 Ineligibility

6.2.1 Local authorities are prohibited by the Act from assisting the following people:

(i) A person with refugee status abroad

(ii) A person who has nationality of an EEA state other than the United Kingdom

(iii) A failed asylum seeker who has failed to co-operate with removal directions issued in respect of him/ her

(iv) A person who is unlawfully present in the UK.

(v) A failed asylum seeker with a dependent child who the Secretary of State has certified as having failed to take reasonable steps to leave the UK

6.2.2 The Local Authority is also prohibited from supporting a person who is a dependant of a person listed in categories (i), (ii) and (iii).

A dependant includes:

a spouse;
a member of his/her or his/her spouse’s close family who is under the age of 18;
a person under 18 who has been living as part of the applicant’s household since birth or for at least 6 of the previous 12 months;
a member of the household who is disabled and in need of care and attention from the applicant or a member of his/her household;
a person who has been living with the applicant as an unmarried couple for at least 2 of the 3 years prior to any arrangements which the local authority makes for him/her.

6.2.3 The fifth category of ineligible person was added by the Asylum and Immigration (Treatment of Claimants etc) Act 2004 and came into effect on December 1st 2004. Prior to the implementation of this provision, Schedule 3 did not apply to failed asylum seekers

with dependent children, as they continued to be supported by NASS. The implementation

of this provision means that NASS support for failed asylum seekers with dependent

children who have received a certificate stating that the family has failed, without reasonable excuse, to take reasonable steps to leave the UK voluntarily, will cease 14 days thereafter. (At the time of writing this provision is still being piloted, and may be revised.)

6.2.4 Duty to inform the Secretary of State

You are obliged to report to the Home Office Immigration and Nationality Directorate the details of any person whom you reasonably suspect to be:-

A failed asylum seeker refusing to leave the UK; and/or
A person unlawfully present in the UK.

See Appendix 3 for the appropriate form.

7.Summary of provision for eligible applicants

7.1. Asylum seekers with care needs.

Assessment of need should be undertaken under Section 47 of NHS & Community Care Act 1990.

NASS is unable to provide support to an adult asylum seeker with care needs; it may be necessary for the LA to provide basic accommodation and support pending a full assessment.
If an asylum seeker has a FACS eligible care need and is destitute, the services will include accommodation and related support.
Ordinary Residence: A person dispersed to a LA’s area should be considered to be ordinarily resident there.

Who?

Criteria

LA provision

Single adult /

FACS eligible care need
Need not be result of destitution

Services to meet the care need
If destitute, to include accommodation and related support

Family
No children
Dependent adult with care need /

Services including accommodation and support to the dependent adult.
May provide services to other close family members if necessary for the care needs, or to prevent a breach of HR. If not, NASS will be responsible, and will liaise re close location.

Family with dependent child(ren)
Adult with care need /

Accommodation for qualifying adult and the family
Support for qualifying adult
NASS to support rest of family financially (living costs and accommodation)

Discharged from hospital
In need of continuing care /

Accommodation and support to be provided by NHS and/or LA as long as need remains.

Family
Child(ren) with care needs /

Destitute

NASS has duty to provide accommodation and support to meet essential daily living needs of the family

Children in Need assessment

LA must assess and meet any additional support needs as provided for in Children Act 1989 Sections 17 or 28

7.2. Applicants from EEA countries

EEA Common Treaties support the freedom of EEA workers to reside and work in an EEA country of their choice.
Schedule 3 of the Act is designed to ensure that people do not move between countries for the sole or main purpose of accessing services.
Evidence of status is required from all applicants. If they cannot produce any, consent must be asked to make enquiries of other agencies / in other countries.

Adult / Not working
Never employed in UK
Worked elsewhere in EEA
and retired to UK
Student / including family / Right to reside if they have sufficient resources to avoid becoming an unreasonable burden on the UK benefit and housing system during their period of residence.
Adult / Working in UK
Having worked in UK
Student / including family / Right to services on same basis as British nationals
Adult / Working in UK / including family /

Right to claim social and tax advantages including social security benefits and Higher Education grants

Adult with dependent child(ren) / EEA national
Refugee status in another
EEA country / LA may make travel arrangements to return to that country, including the child(ren), and provide accommodation – all to be arranged as soon and as economically as practicable.
If travel refused: New travel arrangements may be made, but no
further accommodation unless the refusal was on
health grounds or because of a transport failure.
Community Care services can only be provided where failure to provide such support would constitute a violation of the applicant’s rights under the European Convention of Human Rights or one of the Community Treaties.

EEA countries:Austria, Belgium, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Luxembourg, Netherlands, Portugal, Spain, Sweden and the UK (+ Iceland, Norway and Liechtenstein – not member states, but granted same rights for citizens to move /work). From May 2004, Malta and Southern Cyprus became members (the Accession States). Nationals from the A8 countries may also move freely among the member states (CzechRepublic, Estonia, Hungary, Latvia, Lithuania,Poland, Slovakia and Slovenia)

8. Mandatory Procedure: Assessment

8.1. Introduction

8.1.1 The Home Office has issued guidance to local authorities to determine whether Section 54 and Schedule 3 of the Nationality Immigration and Asylum Act 2000 apply.

Before granting support or assistance to any person under any of the provisions set out in paragraph 1 (i) of Schedule 3 local authorities must ensure that the individual is eligible to receive such support. (See Section 1, para 1.1 above.)

8.1.2.The Home Office has produced a questionnaire, which is attached at Appendix 1 to this guidance. The questionnaire provides a standard list of questions that must be posed to all persons seeking support or assistance under any of the Schedule 3 provisions.

NB Staff need to be aware that language and cultural differences may mean that information such as names and dates are presented in an unfamiliar form, and they must be careful to check that they have recorded them accurately. See also the policy on Interpretation and Translation.

8.2.Assessment Procedure

8.2.1 Prior to any services being provided, the individual must provide positive proof of their ordinary residence, immigration status and nationality by producing as proof:-

(a)full current passport; or

(b)birth certificate; or

(c)original Home Office letter confirming immigration status.

8.2.2 Only original documents are acceptable. Photocopies are not sufficient.

Individuals who are unable to provide proof should be asked to obtain it as soon as possible. Where an individual does not return with proof, the Home Office IND should be advised. Until such time as documentary proof of eligibility is produced, only the minimum support necessary to avoid a violation of human rights under ECHR or treaty rights or under Section 20 Children Act 1989 can be provided.

8.3 Stage One – Preliminary Assessment

8.3.1 In all cases photocopy any available papers and documents which establish the applicant’s legal status in the UK (for example passport or travel documents). The applicant should produce evidence of any work undertaken inthe UK either as an employee (e.g. a P60), or on a self-employed basis, or of his/her student status.

If a claim for benefits has been made in the UK evidence should be produced that the claim has been made and that it has been refused.

The applicant should also be required to produce evidence that an appeal has been lodged against the refusal.

8.3.2 Interview the applicant using the relevant sections of the Home Office

questionnaire. The aim of the interview is to obtain as much information as

possible to enable you to determine as part of your assessment:-

whether the applicant falls within one of the categories of people who are not eligible for support and if so which category;
if the applicant is from another EEA country, whether they have been working either in that country or the UK and the circumstances in which they decided to leave;
when they arrived in the UK, who they have been staying with and how long any accommodation which they are occupying is available to them;
details of the household composition and address;
how and with whom the applicant travelled to the UK;
in all cases where the applicant is a single parent with children, where the absent parent is and what their financial and other circumstances are. (Bear in mind that spouses are liable, in law, to maintain each other.);
details of the applicant’s financial circumstances including the date of the last benefit payment received by them in the country from which they have travelled, the amount of such payment, and any other financial support available to the applicant;

details of any friends or relatives which the applicant may have in the UK and any

support they may be able to offer;

details of any presenting needs of any member of the family.

8.3.3 In every case where a request for assistance is made by an applicant who has refugee status abroad or is from another EEA state but who cannot produce evidence that s/he has been working or has student status in the UK, obtain a consent form authorising you to contact other agencies, for example benefits and housing agencies (including the authorities in the country from which the person has travelled), to enable you to discuss the applicant’s circumstances in that country and their request for support in the UK.

8.4. Interim Support

If it transpires during the initial assessment that the applicant has no immediate

shelter and/or means of support, accommodation may be provided for the children of

the family under Section 20 Children Act 1989.

Temporary accommodation and support may be provided

if the applicant appears to have community care needs, pending further assessment;
pending production of original documentation to prove entitlement and support as a migrant worker;
to an EEA national or person with refugee status abroad pending travel arrangements;
to any person who is otherwise ineligible if it is necessary to do so in order to prevent a violation of any person’s human rights.

8.5. Stage 2 – Full Assessment

It is only necessary to proceed to Stage 2 in circumstances where:-

-an applicant is seeking services to meet community care needs;

-there are children in the family who are ‘children in need’, and who may be in need of services which the authority can provide under Section 17 or Section 20 of the Children Act 1989.

-an applicant who is seeking support contends that refusal of support will constitute a violation of his/her rights under the European Convention on Human Rights or the Community Treaties.

8.5.2 The purpose of further enquiries will be to establish whether the applicant appears to have a need for any community care services, whether there are children in the family who are "children in need" and/or whether it is necessary to provide services to anyone who is otherwise ineligible in order to avoid a breach of human rights. If the applicant appears to have community care needs, a referral should be made to the Adult Care team for full assessment. Full details of your assessment of the applicant's eligibility under Schedule 3 should be provided to that team.

8.5.3 An assessment of the needs of all children in the family should be undertaken with a view to ascertaining whether it is necessary to provide services under Section 17 of the Children Act 1989 to a child or to provide accommodation under Section 20.

8.5.4 In all cases where, having pursued all reasonable enquiries, the outcome of those enquiries suggests that a possible violation of human rights may occur in the absence of either temporary or ongoing support being provided for the applicant and/or his/her dependants, legal advice should be obtained prior to referring the matter to the adult care team for assessment.

8.6. Criteria

8.6.1 Accommodation:- may be provided under the following legislation/ conditions:

Relevant legislation

/ Applicant /

Conditions

Section 20 of the Children Act 1989 / any child who appears to be in need of such a service / none
The Withholding and Withdrawal of Support (Travel Assistance and Temporary Accommodation) Regulations 2002 / any applicant from another EEA state or who has refugee status abroad and who has dependant children / pending their return to another EEA country under arrangements to be made by the Local Authority
Section 21(1)(a) and (1A) of the National Assistance Act 1948 /

adult asylum seekers and other adult foreign nationals with community care needs who are lawfully present in the UK and in urgent need of accommodation and would otherwise be destitute but are ineligible under Schedule 3 Nationality Immigration and Asylum Act 2002 (including nationals from an EEA state other than the UK)
persons in the UK unlawfully who have community care needs

/ only where a refusal to provide such accommodation would constitute a violation of rights under the European Convention on Human Rights or one of the Community Treaties
Section 2 Local Government Act 2000 / persons without a community care need who are unlawfully in the UK (including failed asylum seekers who have not yet had a removal direction or certificate issued against them by the secretary of state)