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When does the exclusion apply?

An exclusion that is based on the parent’s immigration status will apply to some families with no recourse to public funds who request social services support. 

When the parent is in an excluded group, social services’ support can only be provided to the family where this is necessary to prevent a breach of the family’s human rights. This means that social services will also need to undertake a human rights assessment to establish whether the family 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 they 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 to a family when the parent is: 

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

When a parent 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, for example, entry restrictions imposed by the return country due to Covid-19, 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 family’s human rights would be breached on return
  • If the family need to obtain legal advice about their immigration options before return can be considered 

When a family cannot be reasonably expected to leave the UK and a child has been assessed as being in need, social services would need to provide support to the family under section 17 of the Children Act 1989. This support may be regularly reviewed and the human rights assessment may be revised if the family’s circumstances change, for example, they receive a negative decision on their immigration claim from the Home Office. 

If social services conclude, following a human rights assessment, that there are no legal barriers or practical obstacles preventing a family from returning to their country of origin, then the family 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 a parent is in an excluded group, social services can still: 

  • Undertake a child in need assessment
  • Provide emergency support when this is required whilst the child in need and human rights assessment are being carried out 

When a parent is not in an excluded group, eligibility for social services’ support is determined through the outcome of the child in need assessment only, as a human rights assessment is not required. This would apply to families where the parent has leave to remain that is subject to the 'no recourse to public funds' (NRPF) condition or has a European derivative right to reside as a Zambrano carer. 

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.

Zambrano carer

Person who is required to be resident in the UK as the primary carer of a British child or dependent adult in order to enable that child/adult to live in the UK.