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When does the exclusion apply?

An exclusion that is based on a person's immigration status will apply to some adults with no recourse to public funds who request support under the Care Act 2014 or the equivalent legislation that applies in Wales, Scotland, or Northern Ireland.

When the adult is in an excluded group, social services’ support can only be provided where this is necessary to prevent a breach of the adult’s human rights. This means that in addition to the needs assessment, social services will also need to undertake a human rights assessment to establish whether the adult can return to their country of origin to avoid a situation of destitution in the UK, or whether there is a legal or practical barrier that means that the person cannot be expected to return.

The exclusion is set out in Section 54 and Schedule 3 of the Nationality, Immigration and Asylum Act 2002, and applies when an adult is:

  • In breach of immigration laws, such as a visa overstayer, illegal entrant, or appeal rights exhausted (ARE) asylum seeker
  • An ARE asylum seeker who has failed to comply with removal directions
  • A person with refugee status that has been granted by another European Economic Area (EEA) country 

When an adult is in an excluded group, social services will undertake a human rights assessment that considers:

  • If there is a legal barrier to return, for example, a pending human rights application or appeal
  • If there is a practical obstacle to return, such as entry restrictions imposed by the return country due to Covid-19 or the person being medically unfit to travel, and whether this can be overcome
  • If there are any Home Office or court decisions on immigration claims that have made findings on whether the person’s human rights would be breached on return
  • If the adult needs to obtain legal advice about their immigration options before return can be considered

When an adult cannot be reasonably expected to leave the UK and they are assessed as having eligible care and support needs, social services would need to provide support to the adult under the Care Act 2014. This support will need to be regularly reviewed and the human rights assessment may be revised if the person’s circumstances change, for example, they receive a negative Home Office decision on their immigration claim. 

If social services conclude, following a human rights assessment, that there are no legal barriers or practical obstacles preventing an adult from returning to their country of origin, then the person may be offered assistance with return on the basis that this would avoid a breach of human rights that may arise from their situation of destitution in the UK.

When an adult is in an excluded group, social services can still:

  • Undertake a social care needs assessment
  • Provide emergency support when this is required whilst the social care and human rights assessment are being carried out

When an adult is not in an excluded group, eligibility for social services’ support is determined through the outcome of the social care needs assessment only. In such cases a human rights assessment will not be required. An adult will not be in an excluded group when they have leave to remain that is subject to the 'no recourse to public funds' (NRPF) condition or pre-settled status granted under the EU Settlement Scheme. 

Immigration terms

Appeal rights exhausted (ARE)

The status of a person whose asylum or immigration claim has been refused when they have come to the end of the appeal process without success or have no further right of appeal. 

Asylum seeker

A person who has made a claim to the UK government for protection (asylum) under the United Nations Refugee Convention 1951 and is waiting for a decision from the Home Office or final decision from the appeal courts (following a refusal).

Visa overstayer

A person who had leave to enter or remain in the UK for a limited period and has no current immigration permission because they either did not make an application to extend their leave before their previous leave expired, or made an application that was refused after their previous leave expired.