Home Office policy on granting leave to remain with recourse to public funds

Transcription

1 Home Office policy on granting leave to remain with recourse to public funds Introduction In July 2012, the family migration rules were reformed and some new categories were added to Appendix FM of the Immigration Rules in order to replace Home Office policies which often resulted in the grant of discretionary leave to remain (DLR). DLR was granted with no condition prohibiting access to public funds. Following the July 2012 changes, limited leave to remain with no recourse to public funds (NRPF) will be granted to migrants who have successfully been granted limited leave to remain on the following grounds: 10-year partner of parent route under Appendix FM of the Immigration Rules Private life under paragraphs 276BE(1) or 276DG of the Immigration Rules Outside of the Rules on the basis of exceptional circumstances relating to family or private life In July 2012, the Home Office introduced a policy which allowed for leave to remain to be granted without the NRPF condition being applied when there are exceptional circumstances which require recourse to granted. If this exception is applied, leave to remain is granted with condition code 1A. Since 21 January 2014, applicants who have been granted leave to remain with NRPF can also apply for his condition to be removed on the basis that they did not supply the relevant evidence at the time that leave was granted to demonstrate that they met this exception, or if their circumstances have changed since that time, and the exception now applies to them. Home Office policy The Immigration Rules currently state that leave will be granted:..subject to a condition of no recourse to public funds unless the decision-maker considers that the person should not be subject to such a condition. (See paragraphs: GEN.1.10, D-LTRP.1.2, D-LTRPT.1.2, 276BE(1), 276BE(2), 276DG) The Home Office has published details of the policy in Chapter 8 of the Immigration Directorate Instructions, Family members under the Immigration Rules, which have been updated, as follows: Section FM 1.0 Family Guidance (July 2012) 1

2 Section FM 1.0 Partner Guidance (September 2012) Section FM 1.0 Partner Guidance (November 2012) Section FM 1.0 Partner & ECHR Article 8 Guidance (December 2012) Section FM 1.0 Partner & ECHR Article 8 Guidance (May 2013) Section FM 1.0 Partner & ECHR Article 8 Guidance (October 2013) Family Migration: Appendix FM Section 1.0b, Family Life (as a Partner or Parent) and Private Life: 10-Year Routes (July 2014) Up until November 2012, there was no specific statement relating to applicants in receipt of asylum support or local authority support. The guidance stated that exceptional circumstances applied when the applicant is destitute, and also confirmed that: An applicant claiming to be destitute will need to provide evidence, including of their financial position, demonstrating that they do not have access to adequate accommodation or any means of obtaining it (other than from a local authority or charity) or they cannot meet their other essential living needs (other than from a local authority or charity). The table below sets out extracts from each policy document, which outline the changes in relation to what is considered to be exceptional circumstances and how local authority supported applicants are to be dealt with. Policy version November 2012 (pp 42-4) December 2012 (pp 50-52) circumstances require access to granted will exist only destitute require access to granted will exist only destitute. Local authority supported applicants Where an applicant has already provided evidence and been assessed as destitute for the purposes of section 95 or section 4 asylum support, or where a Local Authority has assessed an applicant as being destitute and is providing support to them, and where there has been no material change to their might affect whether they continue to be destitute, the decision maker should grant access to public funds (condition code 1A) when granting leave under the partner or parent route in Appendix FM or the private life route in paragraphs 276ADE to 276DH of the Immigration Rules. Where an applicant is supported under section 95 or section 4 of the Immigration and Asylum Act 1999 they will already have been assessed as destitute. The decision maker should therefore normally grant access to public funds (condition code 1A) when granting leave under the partner or parent route in Appendix FM or the private life route in paragraphs 276ADE to 276DH of the Immigration Rules, unless it is clear that there has been a change in their financial circumstances since the last assessment of destitution which would affect their eligibility for support. Caseworkers should take the same approach where the applicant and any family is receiving support from a Local Authority under section 17 of the Children Act 2

3 May 2013 (pp 68-69) October 2013 (pp 69-72) require access to granted will exist destitute, or where there are particularly compelling reasons relating to the welfare of a child of a parent in receipt of a very low income. require recourse to granted will exist destitute, or where there are particularly compelling reasons relating to the welfare of a child of a parent in receipt of a very low income or section 21 of the National Assistance Act 1948, as the Local Authority will have conducted their own assessment of destitution before making a decision to grant support. Where an applicant is supported under section 95 or section 4 of the Immigration and Asylum Act 1999 they will already have been assessed as destitute. The decision maker should therefore normally grant access to public funds (condition code 1A) when granting leave under the 10-year partner or parent route in Appendix FM or the 10-year private life route in paragraphs 276ADE-DH of the Immigration Rules, unless it is clear that there has been a change in their financial circumstances since the last assessment of destitution which would affect their eligibility for support. Caseworkers should take the same approach where the applicant and any family is receiving support from a Local Authority under section 17 of the Children Act 1989 or section 21 of the National Assistance Act 1948, as the Local Authority will have conducted their own assessment of destitution before making a decision to grant support. Where an applicant and their family are in receipt of support from a Local Authority, the Local Authority will have conducted its own assessment of the applicant s circumstances before making a decision to grant support. However, the receipt of such support does not in itself evidence destitution and a caseworker must make their own assessment of the information and evidence that the applicant has provided. Local Authority support is subject to the relevant statutory criteria, e.g. under section 17 of the Children Act 1989 (for a child in need and their family) or section 21 of the National Assistance Act 1948 (provision of accommodation in certain circumstances). An applicant in receipt of Local Authority support may or may not meet the criteria set out in this guidance depending on their circumstances. Examples of cases where we might reach a different conclusion from the Local Authority on the question of whether or not the applicant was destitute, or whether or not there were particularly compelling child welfare considerations, could be where the applicant was working and receiving an income which the Local Authority supplemented to reflect its section 17 responsibilities, or where the applicant had the right to work and prospects of employment which it 3

4 July 2014 (pp 59-61) require recourse to granted will exist destitute, or where there are particularly compelling reasons relating to the welfare of a child of a parent in receipt of a very low income. was clear the Local Authority had not considered or the applicant s prospects had changed. Where an applicant and their family are in receipt of support from a Local Authority, the Local Authority will have conducted its own assessment of the applicant s circumstances before making a decision to grant support. However, the receipt of such support does not in itself evidence destitution and a decision maker must make their own assessment of the information and evidence that the applicant has provided. Local Authority support is subject to the relevant statutory criteria, e.g. under section 17 of the Children Act 1989 (for a child in need and their family) or section 21 of the National Assistance Act 1948 (provision of accommodation in certain circumstances). An applicant in receipt of Local Authority support may or may not meet the criteria set out in this guidance depending on their circumstances. Examples of cases where we might reach a different conclusion from the Local Authority on the question of whether or not the applicant was destitute, or whether or not there were particularly compelling child welfare considerations, could be where: -the applicant was working and receiving an income which the Local Authority supplemented to reflect its section 17 responsibilities; or -the applicant had the right to work and prospects of employment which it was clear the Local Authority had not considered; or -the applicant s prospects had changed since the Local Authority assessment. Change in position regarding accepting local authority assessments of destitution With regards to local authority supported applicants, the policy has been watered down, as follows: from..the decision maker should grant access to public funds.. (November 2012), to the decision maker should therefore normally grant access to public funds.. (December 2012 and May 2013), to the current position,..the receipt of such support does not in itself evidence destitution and a caseworker must make their own assessment of the information and evidence that the applicant has provided. (October 2013 and July 2014). This change in policy position was not made in consultation with local authorities or the NRPF Network. Proposals for policy amendments and further guidance (1) Confirmation within the policy that local authorities would be following the same definition of destitution as the Home Office (i.e. section 95 IAA 1999), and would only be providing 4

5 support if they have a legal duty to do so under section 17 Children Act 1989 or section 21 National Assistance Act (2) An amendment to the following statement is required: Examples of cases where we might reach a different conclusion from the Local Authority on the question of whether or not the applicant was destitute, or whether or not there were particularly compelling child welfare considerations, could be where: the applicant was working and receiving an income which the Local Authority supplemented to reflect its section 17 responsibilities A local authority will provide support under section 17 Children Act where there is a child in need. A destitute child is a child in need. Local authorities apply the same definition of destitution as set out in section 95 Immigration and Asylum Act 1999, i.e. a person is destitute if: a) They do not have adequate accommodation or any means of obtaining it (whether or not their other essential living needs are met); or b) They have adequate accommodation or the means of obtaining it, but cannot meet their other essential living needs. Therefore if a local authority supported applicant is working but, despite their income from this employment, is unable to afford accommodation for their family, or if they can afford accommodation, they cannot meet their other essential living needs, then the family will be destitute and the child remains in need. Due to the lack of access to top up benefits, such as Working and Child Tax Credit, as well as Housing Benefit and Child Benefit, for families where a parent is working, the local authority is left in a position where support must continue to be provided in line with its statutory duties. This also applies to applicants in receipt of small amounts of income from other sources. The original policy (pre-november 2012) acknowledged that an applicant would be destitute if they were only able to access accommodation or meet their essential living needs by support from a local authority or charity. It is therefore unclear why a different conclusion on destitution would be reached by the Home Office in the circumstances outlined above. The policy wording as it currently stands is therefore misleading and needs to be amended. (3) In May 2013, exceptional circumstances were broadened to also encompass..where there are particularly compelling reasons relating to the welfare of a child of a parent in receipt of a very low income. There is no guidance about what constitutes particularly compelling reasons. If a local authority determines that there is still a child in need (for reasons set out in (2) above, despite the parent having some source of income, would this not be a compelling reason relating to the child s welfare? Further guidance on this point is required. (4) Further clarity is needed about what are considered to be prospects of employment and how these are measured. Prospects of employment should also encompass consideration of childcare commitments and costs of arranging childcare. 5

6 (5) It should only be an exceptional circumstance when the Home Office finds an applicant, who is in receipt of support from a local authority under section 17 Children Act 1989 or section 21 National Assistance Act 1948, not to be destitute, and it would be rare for a local authority to be providing such support unlawfully. The guidance therefore needs to be amended to reflect the fact that such instances where different conclusions are made will be the exception rather than the norm. NRPF Network 20 August 2014 Islington Town Hall, Upper Street, N1 2UD Tel: nrpf@islington.gov.uk Web: 6