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CIH Scotland

Housing advisers


Advising people who are destitute

This page is for housing advisers. If you are a new arrival please click here for information more relevant to you.

Introduction

This section is different from others on the website because it is about working with people who are much less likely to be eligible for formal help with their housing needs or to receive benefits. The aim is to help identify those who might become eligible for housing help or for benefits, and to provide pointers towards sources of help for those who will remain ineligible because of their immigration status or because they remain undocumented.

Working with destitute migrants is complicated. The reasons for destitution are varied, like the options available. And often, there are very few acceptable options because the destitution may reflect the intended harshness of government policy, which has openly set out to deter undocumented migrants or secure their removal and to reduce net migration.

Working with undocumented migrants therefore presents significant issues about trust, ethics and confidentiality. It may also challenge us as advisers to work in ways that encourage empowerment, and self-determination and support understanding, when those we advise may be depressed, misinformed and isolated.

How do migrants become destitute?

For this website, we define migrant as simply someone in the UK with a non-UK nationality. A migrant is destitute if s/he does not have the resources to house and feed him/herself.

Migrants become destitute in the UK for different reasons, and those reasons generally determine what the options are for finding them food and shelter:

  • Immigration status: people subject to immigration control generally have access to the benefits system and local authority homelessness services if they have
    • Refugee status, humanitarian protection or discretionary or exceptional leave to remain with no restrictions on access to public funds
    • Indefinite leave to remain
    Other migrants are usually admitted on conditions that they can accommodate and support themselves 'without recourse to public funds' and so if something goes wrong they may become destitute.
  • European rights to reside: EU rights to reside are complicated and there is a lot about them on this site. European citizens who have lost their right to reside, or those who have the initial three month right to reside may become destitute because access to benefits and housing depends on having a qualifying right to reside
  • Transitions: moving from one type of status to another may involve loss of rights or resources, or going into limbo. For example, a person fleeing domestic abuse may lose the support and accommodation provided by the spouse, and not yet have accessed resources (and new status) available to victims of domestic abuse. Or someone given refugee status may lose their asylum support accommodation before they get the papers they need to claim UK benefits.
  • Delays: many migrants report that it takes a long time to deal with their applications for housing or benefits, often longer than for corresponding non-migrant claims. Sometimes this is because officials do not understand migrant rights or documentation. Sometimes it is because they demand more 'proofs' from migrants than from others. Sometimes there is no explanation. In all these cases this is likely to amount to illegal race discrimination.
  • Being undocumented: undocumented does not have a strict legal meaning. It is the preferred term to describe a migrant who is liable to be removed/expelled from the UK by the immigration authorities (because both 'irregular' and 'illegal' are insulting): this may be because s/he
    • arrived by evading immigration controls or
    • 'overstayed' once their leave ended or
    • made an application (e.g. for asylum) that has been refused and then cannot or will not return home or
    • is subject to a removal or deportation order

You can find out a lot about undocumented migrants from the Platform for International Cooperation on Undocumented Migrants. A leaflet is available on what is known about undocumented or irregular migrants.

There are no current reliable estimates on how many undocumented migrants there are in the UK. Research commissioned by the Mayor of London arrived at a median figure of over 700,000 in 2009. However, this figure included people in the 'asylum backlog' of over 400,000 people, most of whose cases are now resolved.

Some people are literally 'undocumented': they have a legal right to be in the UK but simply have no documents to prove it. This may be because of changes in status, disasters such as a fire, theft or illegal eviction, carelessness or vulnerability.

  • Trafficking: Human trafficking is the acquisition of people by improper means such as force, fraud or deception, with the aim of exploiting them. Not all those trafficked are migrants, and not all migrants who arrive to work unlawfully in the UK are trafficked. Where a person appears to be afraid or controlled by others and you think there may be labour, sexual or financial exploitation, they may have been trafficked. Stop the Traffik has a useful website with checklists of signs of trafficking, and contact details of relevant agencies
  • Discrimination: migrants have become the target of a lot of racism in the UK, and sometimes this takes the form of refusing them services or benefits to which they are entitled. Sometimes officials, the media or even politicians make statements about eligibility that are not correct, and this may lead to refusals. These are simply discrimination that is unlawful under the Equality Act 2010.

How can we help destitute migrants?

What advisers and others can do to help destitute migrants will obviously depend on what is possible, and this largely depends on the status of the migrant and the reason why s/he became destitute.

Immigration status

A migrant subject to immigration control admitted on the basis that s/he will accommodate and support him/herself and family with no recourse to public funds has usually provided the authorities with proof that they have or will have the necessary funds. If they are now destitute because of a temporary problem (e.g. a fire, an interruption of funds) then they should first consider how to secure shelter and food without making any approach to benefit or housing authorities, who will contact the Home Office (which may then conclude that the migrant is in breach of conditions):

  • Students may get help from student welfare services
  • Workers may get help from their company's human resources department
  • Anyone may be able to get short term help from faith groups, communities or friends
  • People with ID can approach the bank for a loan

Some migrants, however, may become destitute in situations where they need to change status because they cannot go back to their previous situation. Examples of this include

  • Spouses or partners facing domestic abuse (see People fleeing domestic abuse)
  • Students or workers who can no longer return home because of political or human rights changes
  • Workers who can no longer work because of illness or accident

For this you will need good legal advice: see Getting good immigration advice.

European rights to reside

Most citizens of European Economic Area countries and their family members in the UK have qualifying rights to reside and are able to claim relevant benefits and housing services if they need them. Refusals are often challengeable. You will find a lot of information about the rights of workers, the self-employed and workseekers, people with other EEA rights to reside and their family members on this website.

Other common problems include:

  • A worker who has been employed in the UK for less than a year before losing their job becomes an EEA job seeker after six months registered unemployment. As an EEA jobseeker they are only entitled to income-based JSA but not housing benefit unless they also have some other right to reside (usually because they have a child in education here). If not then they will need specialist legal advice about their current status and rights: advisers should contact the AIRE centre.
  • Victims of domestic abuse who no longer qualify as family members (most do, or can establish another right to reside e.g. by working or signing on as a jobseeker, but there may be problems for non-EEA ex-cohabitees for example): the Aire Centre has some useful briefings on this and may be able to advise
  • Before 1st July 2018, nationals of Croatia could not usually claim unemployment benefits until they had worked in the UK for at least one year. This restriction has now ended.
  • An EEA national who entered the UK looking for work is not entitled income-based JSA during their first three months residence. Thereafter they can claim income-based JSA for six months but are not entitled to housing benefit whilst they remain entitled to income-based JSA.  However, in Scotland they have the right to an allocation of housing from the council or to get help if they are homeless.

The Home Office originally issued guidance that rough sleeping is an abuse of EEA rights and people could be removed even if they are working. The guidance has been successfully challenged, however. This leaflet (pdf) from NELMA and the Public Interest Law Unit at Lambeth Law Centre explains the detail.

Transitions and delays

For migrants who are not eligible for benefits and housing, even when they then move to a status that makes them eligible, there are often significant delays in accessing the services they need.

  • The Home Office often fails to provide the necessary documentation for some time after a decision
  • The DWP and local authorities sometimes refuse to provide services on the grounds that they need documentation before they can do so

This is a particular problem for those who have been through the asylum system, who find that their asylum support and accommodation is terminated before they are able to move to the mainstream housing and benefits system when they get refugee status, etc. Some of the issues with benefits are dealt with on the pages on refugees.

For homelessness applications, it is important to stress that local housing authorities simply need 'reason to believe' that an applicant is eligible (in terms of immigration status, habitual residence, etc.) and homeless in order to provide emergency accommodation. And migrant applicants should be believed no less or more than others: requiring a higher standard of proof from them is unlawful discrimination. Emergency accommodation should be provided by the local authority where the application has been made: if they then want to refer on (for example because of the local connection rule) they must make appropriate arrangements to ensure that the household is housed and travel arrangements made.

For HB a national insurance number or an application for one is a requirement. In Scotland it is not a requirement for a claim for CTR but applying for CTR without (including with HB) may cause problems: see the pages on applying for HB.

For all such claims and applications, if you find that migrants generally appear to be suffering longer delays than other applicants, it is likely that what is happening is unlawful discrimination, which can be challenged: you may want to use FOI requests to get information about the usual and average times to deal with applications and claims, and also ask for the equalities monitoring information public authorities should have on how applications and claims are dealt with and which ethnic and national groups suffer more delays. Or, indeed, how much satisfaction they record in relation to the service compared with other users. Migrant customers may know less about the service, may have problems with the language: that is no reason for them to be offered a worse service.

Being undocumented because they have no proof of status

For those who have no proof of their immigration status but are legally in the UK

  • Local councils should offer temporary accommodation to anyone they 'have reason to believe' is eligible and homeless. There is no requirement whatsoever for the applicant to prove their eligibility before accommodation is offered, although advisers may have to work hard to persuade council officers of this.
  • Except where the landlord is the local authority there is provision for a payment on account of housing benefit (the authority sometimes refer to these as interim payments) where a local authority has been unable to process the claim within 14 days. The authority must make a payment if the delay is not caused by the claimant. In practice this is very difficult for undocumented migrants - because the delay must not have arisen out of the claimant's 'failure without good cause to provide the necessary information and evidence'.
  • In both cases, the council can then require the applicant/claimant to produce documents within a 'reasonable' time. For claims for HB and CTR he/she must be given at least one month to provide the relevant documents - or longer if reasonable. If the applicant/claimant does not know how to get the relevant documentation, then the council must advise them about how to do it and offer the necessary assistance, because of their duties towards people who are homeless and threatened with homelessness.
  • With the applicant/claimant's permission, the council can ask the Home Office for information about their current immigration status, using the systems for secure contact set up by the housing department (there are very out of date details about how to do this in Appendix 13C of the Homelessness Code of Guidance). However, this may take some time, especially if the applicant does not have a Home Office reference number.
  • The applicant can be asked to contact an immigration adviser or a solicitor to apply for new documents. However, legal aid is not available for this, and so it will not be reasonable to expect a destitute applicant to pay for this. The local authority will have to suggest ways in which this can be paid for if no such advice is available free in their area, including, where relevant, an application for financial help for this via either the Children (Scotland) Act 1995 section 22 (for households with children) or section 12 (2) of the Social Work (Scotland) Act 1968 which requires the social work department to assess the needs of any person who contacts them who appears to be in need of community care services '...where the giving of assistance ...would avoid the local authority being caused greater expense in the giving of assistance in another form, or where probable aggravation of the person's need would cause greater expense to the local authority on a later occasion.')
  • Where the applicant has indefinite leave to remain based on being present and settled in the UK on 1st January 1973, s/he can apply for a stamp as evidence of this (called a No Time Limits NTL stamp) to be put in any passport s/he holds. Evidence of presence on relevant dates is required and this may be provided by work, study, benefits and NHS records. There is a form (pdf) to do this and a fee, but it can also be done by an OISC-regulated or exempt adviser working at level 1.

'Undocumented' with no right to live in the UK

For those who are undocumented because they have no current right to stay in the UK, there are few options if they are now destitute. Those available are:

  • Regularisation of status (see below)
  • Voluntary return (see below)
  • Applying for social care for households including children or vulnerable adults. Such applications will certainly alert the Home Office , and it is important the migrant knows this and considers what 'exit route' s/he has chosen from being undocumented (i.e. regularisation or voluntary return) before applying, especially as this may affect the rights to social care. Families with children or their advisers may want to get advice from Project 17 about this
  • Looking for help from community, faith groups, family, friends or destitution projects. Most of these will also expect the migrant to have some form of exit route soon. See the links pages for contact details of destitution projects

Trafficking

Some destitute migrants may have been trafficked. Trafficking for labour exploitation is much more common than trafficking for sexual exploitation, and if you offer advice to migrants you should be aware of the signs and options.

Trafficking is

  • 'the recruitment, transportation, transfer, harbouring or receipt of persons,
  • by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person,
  • for the purpose of exploitation.' (UN Trafficking Protocol) to which the UK is a signatory.

Trafficking of children is defined differently as recruitment, transportation, etc. for exploitation (i.e. does not require that coercion, deception, etc. is used).

Trafficking can occur across borders and within them, e.g. by moving people around the UK to exploit them. It may involve migrants or citizens. The exploitation may be for 'prostitution... or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs'. Trafficking for labour certainly occurs in the UK in sectors such as agriculture, building and domestic work. Because one of the ways in which people are coerced is the withholding or manipulation of documents, and because trafficking is easier with victims who may be more vulnerable because they do not speak the language or know about their rights, it is important for those advising migrants to be aware that trafficking occurs and know what help is available for victims. The Home Office publish a useful basic guide (pdf) on trafficking, focusing particularly on labour exploitation.

The UK has specific services for dealing with the crime of trafficking. The National Referral Mechanism is the official mechanism for identifying victims of trafficking and referring them to appropriate help. Only designated 'First Responders' can refer people into it. Adult trafficking victims must give their consent to such a referral. If the referral gives rise to reasonable grounds to believe that the person has been trafficked, then s/he is entitled to a 45-day period for 'recovery and reflection' during which they are offered accommodation and social assistance by the Salvation Army (on contract to the Home Office but also sub-contracting some services to local organisations) and a conclusive decision as to whether they have been trafficked is reached. If the person is identified as a victim of trafficking s/he should be offered further support. This may include:

  • leave for a limited period, if needed, to enable the victim to cooperate with identifying and bringing the traffickers to justice
  • discretionary leave, if needed, for a period, because of their personal circumstances
  • an opportunity to apply for asylum if their circumstances warrant it
  • help to return home as appropriate.

There are also some specific arrangements for trafficked children.

Discrimination

Some migrants have rights to access housing or benefits but are refused because they are migrants. This is unlawful race discrimination and should be challenged using the processes explained on this page. If you find that an organisation or office is doing this consistently, you may want to contact the EHRC to discuss what further action should be taken

What issues are raised by working with destitute migrants?

Advisers starting work with destitute migrants for the first time may find themselves in unfamiliar territory.

  • We tend to assume that there is a safety net available somewhere, and for some destitute migrants there is not.
  • Because some migrants get described as 'illegal' some advisers worry that it is not legal to work with them. As explained above: no-one is illegal, and working with undocumented migrants is not illegal either: we hope that these pages will guide advisers through some of the legal and technical issues involved in working with them
  • Many migrants have come to rely on trusted networks they have built up, and do not know how to evaluate the offers and promises made by advice agencies and advisers
  • Conversely, migrants may have had bad experiences with other agencies, 'friends', people who tried to exploit or traffic them or the Home Office and so find it difficult to trust advisers: they may need especial reassurance about confidentiality as well
  • Advising some destitute migrants may raise ethical issues you have not yet considered
  • Advising some destitute migrants is different to how advice may be done with some other service users.

With no safety net, what can we do?

Undocumented migrants have ordinary human needs, but may find it difficult to get them met, which is why they need advice. They may also need immigration advice, but only advisers registered or exempted by the Office of the Immigration Services Commissioner can give that. Once you start advising them, you will need to review the resources you commonly use for other clients to see if they are open to all. You may need to develop new links and referrals. You will need to supplement your address book to include

  • Any good sources of immigration advice, especially the (very rare) ones that offer free good quality advice for which legal aid is no longer available. Start by talking to local law centres and Citizens Advice and check the list of members of the Immigration Law Practitioners Association.
  • Any projects that sometimes offer accommodation to destitute people. Check the NACCOM website and ask local nightshelters and faith communities about whether they accept people who may not be able to claim benefits. If they don't, you may want to negotiate with them to change that policy.
  • Room for Refugees which is a UK-wide project run by PAIH in Glasgow for refugees and those applying for asylum. It arranges host accommodation with local families and has more than 6,500 hosts registered.
  • Any projects offering health care to homeless people.
  • Trade union contacts specialising in work with vulnerable migrants.
  • Local community and faith groups who can offer support.
  • Lawyers and other people who will offer advice about difficult cases.
  • Other projects working with migrants.
  • Local funds that will help individuals in need (who may not have been asked before but may be able and willing to help).
  • Contact details for voluntary return projects.
  • Contact details for the local authority social work department that deals with people with no recourse to public funds. There may be more than one (for example, one in the children's section, one for vulnerable adults). It is also important to note that knowledge of this issue and expertise in dealing with it vary greatly across different authorities so it is useful to know in advance how much of the law might need to be explained in making a referral. The NRPF Network provides guidance on policies and procedures that may help: however, although there is a Scottish NRPF network (contactable via the COSLA Strategic Migration Partnership) listed in their local groups, much of the guidance they produce does not cover Scottish social care law.

Is it legal?

It is not legal to:

  • offer immigration advice unless you are registered or exempted by the Office of the Immigration Services Commissioner (OISC)
  • assist illegal immigration into the UK (the penalty is a maximum of 14 years imprisonment), if this is done for money (for 'gain')
  • 'harbour' (i.e. offer accommodation to) a person in the process of assisting illegal immigration.

Providing advice and information is not assisting or harbouring. The guidelines about ethics, supervision and boundaries below should keep agencies within the law. They should also ensure that any organisation helping undocumented migrants is clear about what it is doing and why, which should mitigate any possible problems.

The Association of Charitable Funders commissioned a legal opinion on assisting destitute migrants, aimed mainly at funders and housing providers.  It is available, along with various other documents on supporting destitute migrants, from the Strategic Alliance on Migrant Destitution.

Trust, destitute migrants and confidentiality

No-one will willingly seek advice from someone they do not trust, and if an adviser is not trusted then it is unlikely s/he will be told all the relevant facts. Undocumented migrants have less reason to trust anyone than most: they may well already have been deceived (sometimes by people saying they are advisers) and they may be fearful of what information may be passed on. To tackle this:

  • make sure that there are clear statements about confidentiality in all publicity about the service
  • be clear about the limits of that confidentiality (who will you share information with, in what circumstances?) and make sure service users know about that too
  • work with community groups and faith communities to ensure they know that your service is open to undocumented migrants and that they can vouch for the fact that you are trustworthy
  • check with users about their confidence in your service (through your usual feedback mechanisms) and ask them to recommend it to friends and colleagues
  • ensure all staff (advisers, administrators, volunteer, managers, people working on other projects) have the same commitment to being trustworthy and open to undocumented migrants.
  • be aware that trafficked migrants will have much more difficulty trusting anyone because their trust has already been betrayed by people who said they would help.

Ethical issues

Undocumented migrants live complicated lives. Sometimes, to survive, they break the law, as well as maybe already being in breach of immigration law. Sometimes they want advisers to help them with that and can present us with some tricky ethical decisions. For example:

  • Is it OK if I lie to the school about where we lived before we came here?
  • Can you please apply for charitable funding for food so I can use it to buy a fake National Insurance number card and work with it?
  • Please do not tell the solicitor what I told you about my past because I may not tell him the same thing.
  • What are the consequences of my working illegally?
  • I am getting benefits to which I may not be entitled: what should I do?

And, most commonly:

  • What should I do (or what are the chances of this going wrong, or what would you do in my situation)?

In responding to this kind of question:

  • Be clear about who you are working for: you represent your organisation so, even if you have a lot of sympathy for and empathy with your clients, you must make decisions that will stand objective scrutiny.
  • You are an adviser. You offer advice and information. You are working in an area where accurate information is often difficult to come by. You cannot tell anyone what to do, you can simply tell them what you know about the risks and advantages of different options.
  • But some of these risks and advantages are ethical choices and there is no escaping that. This demands a thoughtful, honest and questioning approach from the adviser.
  • Be ready to face the situation where a destitute person who is desperate to survive gets money or food by stealing. How do you respond to that as an agency? What do you say to the client? These are core ethical issues, often debated by most religions and belief systems, but your agency may not have thought about them before.
  • Do not be scared of the ethics: discuss them in the organisation; decide where you stand; know where that fits with the organisation. Some colleagues may have very strong views on some issues, some may have ready-made ethical codes to fall back on. Work it out: where is the common ground on which you can all stand? What are your limits? Are they personal or common to the agency as a whole?
  • The balance is often between not colluding with a client's behaviour and not rejecting the client. A lot of agencies already walk this line very well because they work with people in other difficult situations: the criminal justice system, substance abuse, sex work. (The excellent good practice guidance on working with migrant sex workers produced by the UK Network of Sex Work Projects is full of very useful insights.)

Advising destitute migrants is different!

Advising undocumented migrants takes up more time because

  • Many undocumented migrants do not get advice or help until they reach extreme crisis, and often only then because they simply cannot survive without it. As a result, they often have multiple as well as complex problems and are likely to be in danger of complete destitution and street homelessness, which makes for very time-consuming and stressful interventions
  • Follow-up work is much more difficult because of undocumented status: most of the usual. resources available to an advice worker simply do not exist and, even where there may be a statutory responsibility, both the client and the agency involved may be extremely reluctant to enter into the necessary relationship: the agency because they will often seek to avoid the responsibility and budgetary implications, the client because of understandable fears about the results of contact with an official body.
  • The variety of cases and circumstances make it difficult for advisers to 'second-guess' or find shortcuts that might make their work easier.
  • The unexpected will usually happen. Increasing document checks, for example, may suddenly produce lots of people needing help because, although they were stable and working, they have suddenly lost their job.
  • Some undocumented migrants (especially if they have been trafficked or abused) may need a lot of patient work to build trust.
  • Setting aims for advice work with undocumented migrants is different. Most advisers offer information, advocacy and support to enable their users to change, but for undocumented migrants that change may ot be possible because they have so few options. Some users may deliberately obscure some aspects of their lives. Some may lead chaotic lives, most face chronic instability. Some may 'disappear' for months or years and then come back. Advisers need to think carefully about how they might measure 'success' or progress in these circumstances.
  • Advice work with undocumented migrants requires energetic and committed supervision, with agreement within the agency about how and why the work is done. The supervisor manages the relationship between the adviser, the client and the organisation, and so must be available for consultation by the adviser, willing to represent advisers' needs to managers and able to spot potential conflicts of interest.

How can we help destitute migrants regularise their status?

Only advisers registered or exempted with the Office of the Immigration Services Commissioner should offer immigration advice to individuals. It is helpful, however, to have an idea of what possible options there may be for migrants to regularise their status and also to use the various self-help resources available. Although most will not be able to do so easily or quickly (unless there are significant policy or legal changes), it is worth suggesting to people in the following situations that they find out more about their options:

  • Long residence: On 9th July 2012, a set of Immigration Rules (pdf) was introduced to cover people who may have established a right to family or private life in the UK. These cover
  • a person who has lived continuously in the UK for 20 years
  • a person over 18 who has lived in the UK for less than 20 years but has no ties with the country to which they would have to go if they were required to leave the UK
  • a child under the age of 18 who has lived in the UK for a continuous period of at least 7 years
  • a young person between the age of 18 and 25 who has spent at least half of their life in the UK.

People who fit into one of these groups can apply for leave to remain in the UK, although it is refused if the applicant has committed a crime, been subject to a deportation order or 'not conducive to the public good', and may be refused if the applicant has unpaid NHS bills or has supplied false information. This leave is granted in tranches of 30 months, and renewed if the same circumstances continue. After 10 years, the person can then apply for indefinite leave to remain on the grounds of long residence. If the person is destitute when they apply for the initial leave, the Home Office consider granting the leave with recourse to public funds. If not, then the four tranches of leave are granted with the right to work but no recourse to public funds

  • Right to family and private life ('Article 8'): the Immigration Rules introduced in 2012 were meant to codify the rights to family and private life expressed in Article 8 of the ECHR. However, there may be circumstances in which leave should be granted because the applicant has a right to family and private life but does not meet the requirements of the Immigration Rules. This is a complex and developing area of law and needs specialist legal input.
  • Parent of a British child: UK citizen children confer rights to reside on parents with care in some circumstances, as a result of the Ruiz Zambrano judgment in the ECJ. The EEA Regulations were amended on 8th November 2012 to include a new regulation 15A which now defines the right to reside for a person (P) where:
     
    1. 'P is the primary carer of a British citizen ('the relevant British citizen');
    2. 'the relevant British citizen is residing in the United Kingdom; and
    3. 'the relevant British citizen would be unable to reside in the UK or in another EEA State if P were required to leave.'

The right is described as a 'derivative' right to reside. The benefits and housing regulations passed on the same date remove people with a right to reside under regulation 15A from eligibility for housing allocation, homelessness services and means-tested benefits (but not from contributory benefits). For housing allocation and homelessness services there is transitional protection for all those who applied before 8th November 2012. There is no transitional protection for benefits.

Anyone with a right to reside who is destitute or homeless can seek help from social services (s17, Children Act 1989) since they are not excluded by Section 54 and Schedule 3 Nationality Immigration and Asylum Act 2002 (See R (U) v Newham LBC [2012] EWHC 610 (Admin)).

The interpretation of the Ruiz Zambrano judgment contained in the regulations is possibly unlawful (since the judgment focused on the right of the citizen child to live in the relevant country, and refusal of safety net benefits is a way of denying that right, which was what was at issue in the original case) and likely to be the subject of legal challenges.

  • People who fear return: Those in fear of returning home because of human rights abuses (including those at risk of being trafficked again) may be able to apply for asylum, and there are specific arrangements to allow some victims of trafficking to have a short time with no threat of immigration enforcement to consider their options. Those who face the prospect of inhuman or degrading treatment at home may be able to apply for leave on human rights grounds. They may also be able to reapply for asylum (called a 'fresh claim') or get a judicial review of a claim that has been refused. Once an asylum claim has been lodged, asylum support may be available.
  • People fleeing domestic abuse
  • EU freedom of movement and residence rights: Individuals may find that because of ancestry, marriage or other family relationship they can now use the freedom of movement and residence rights allowed by European Union rules as an EEA family member.

Asylum support

If an asylum claim has been or can be made, then check the rules for accommodation and support for asylum seekers

If an asylum application is accepted, the new refugee should be given 28-days notice after which the accommodation and money support ends. During this time s/he is expected to make the relevant applications for benefits and find their own accommodation or apply as homeless. Failure to provide the notice, the difficulties of making claims in this time and delays in benefits are a significant cause of destitution for refugees. Some court judgements make it clear that support should at least be continued until the Home Office have issued the relevant documents confirming status.

If an asylum application is finally refused, support ends, unless the asylum seeker has a child living with them. The applicant is then expected to return home, and if they do not do so via voluntary return may be removed. If they cannot do so (because of e.g. pregnancy, illness, opening a fresh claim for asylum) or need time to organise the return home, then they may apply for a restricted form of asylum support called Section 4: this offers accommodation and minimal support via a card that can be used only in specified shops.

However, a refused asylum seeker can reopen their asylum claim if they have information that has not been considered in the original application: this is called a 'fresh claim', and those making a fresh claim may also be able to get Section 4 support initially and then Section 95 support if the claim is taken on for active consideration.

Asylum support is vital for those who fear return, but the rules are complicated and the system does not always protect against destitution. The Asylum Support Appeals Project is a small charity which aims to reduce destitution amongst asylum seekers by protecting their legal rights to food and shelter. It offers training to agencies, and also publishes a set of excellent factsheets about the different forms of asylum support and the issues in claiming them.

Social care and destitute migrants

See relevant section of the website for options for people with social care needs. There you will find details of the support available for some destitute migrants with children or vulnerable adults in their households.

In some limited circumstances, a person who has applied for leave to remain and is destitute while waiting for a decision may be able to apply to the Home Office for support under section 4 (1) of the Immigration and Asylum Act 1999.  This may be granted if it is essential to avoid a breach of human rights: you can find a useful briefing on it by ASAP here (pdf).

Confidentiality and data protection

Undocumented migrants may have entitlements, but they often do not ask for them because they are worried about the Home Office being informed. The Home Office has a policy of encouraging people to inform on possible 'immigration offenders.

Explaining what rights migrants have to confidentiality is an essential part of advising them.

Generally, the law assumes that if you give personal information to a public body, they have a duty to keep it confidential. However,

  • there are legal exceptions to this (see below)
  • there is no guarantee that such information may not be passed to Home Office enforcement agencies by the individuals to whom it has been given, and not much that could be done if it were
  • this is a 'common law' right and so not clearly defined in some respects.

Personal information is confidential where:

  • the person giving the information has the right to expect that it should be or
  • there is a contract to guarantee confidentiality.

This covers all situations in which the information is given to someone who is a professional or carrying out a public duty. The person given the information has the obligation to keep it confidential. They may also have responsibilities under data protection legislation to look after it properly.

Article 8 of the European Convention on Human Rights, as well as guaranteeing the right to family life, also protects privacy.

Legal exceptions to confidentiality: even where information is confidential, there are two situations in which it can be passed on:

  • Where it is 'in the public interest' to do so. For example, a doctor can tell the police if he is worried that a patient will harm someone because of something the patient has told him in confidence. Sharing information with the Home Office, other than as required directly by the law (below) would not be in the public interest.
  • Where a law or the courts require the revealing of confidential information. Two relevant laws in this area are described below. There are also laws relating to notification of diseases and stillbirths, and s18 Prevention of Terrorism Act 1989 which makes it an offence not to offer the police information related to terrorism or proposed terrorist acts.

If you fear confidential information may be passed on and are sure there is no 'public interest' reason or legal basis for that to happen, it is possible to seek an injunction to prevent the disclosure of the information.

Data protection: The Data Protection Act 1998 regulates how anyone processes and uses personal information stored as 'data'. Data is information stored or collected to be stored on a computer or in a filing system and anything personal, i.e. anything that can allow the person to be identified (such as name, address, date of birth) is covered. There are special rules about 'sensitive personal data' which is anything identifiable that relates to ethnic or racial origin, religious or political beliefs, physical or mental health, sexual matters and criminal offences. Data must not be kept or used without consent unless necessary by law or in the interests of the person concerned or needed for contractual purposes. For ordinary personal data there is a 'substantial public interest exception'. For sensitive personal data explicit consent is needed unless it is for medical purposes.

Local authority duties: Generally, if individuals give personal information to a council officer then they will be protected by the law on confidentiality and data protection. However, there are two important pieces of law which apply to local authorities and are exceptions to this:

  • Section 129 Nationality, Immigration and Asylum Act 2002 allows the Home Office to 'require a local authority to supply information for the purpose of establishing where a person is' if they suspect that:
    • the person has committed an immigration offence (including avoiding immigration controls, working in breach of conditions or overstaying) and
    • the person is living or working in the local authority area.
    The Home Office has to contact the council in writing with the name and other relevant details of the person it wants to trace, and the council is then expected to respond within a reasonable time. The information passed on should simply be about where the person is (the home and work addresses), and no sensitive personal information should be shared with the Home Office.
  • Section 54 and Schedule 3 Nationality, Immigration and Asylum Act 2002 This part of the 2002 law makes certain people ineligible for some types of housing and financial support from local authority social work departments. It covers applications for housing and support under section 12 or 13A of the Social Work (Scotland) Act 1968 (c. 49) (social welfare services), sections 22, 29 and 30 of the Children (Scotland) Act 1995 (c. 36) (which allow support for adults looking after children) and some other powers or duties the social work department may have to provide housing and/or support to people with children and vulnerable adults (such as the elderly, people with disabilities or people with long term illnesses or being discharged from hospital needing care). The law on getting this support and housing is dealt with elsewhere, but this schedule also instructs local authorities to inform the Home Office about applications for help in certain clearly defined circumstances. These only apply when the local authority has been asked for help by someone it believes is either:
    • A 'failed asylum seeker' who has failed to cooperate with removal directions. This includes the dependants of any such asylum seeker, but does not include people applied for asylum after illegal entry or overstaying. So it only covers people who applied for asylum on entry or while legally in the UK, and were then refused, and then had removal directions served and then did not leave, or
    • A 'person unlawfully in the UK', which includes anyone who has entered illegally (avoiding immigration controls) or overstayed and not subsequently regularised their stay. An asylum seeker is not unlawfully in the UK while the asylum application is still being processed, however they entered or made the application, but will become unlawful when they get a final refusal on the asylum application.

Generally people who fit one of these two definitions cannot get help from social services, but it should be offered if a breach of their human rights would occur if no help was offered (for example, if someone was destitute and too ill to travel to comply with the removal directions).

If someone covered by these definitions approaches the local authority social work departments for help, the Home Office must be informed, and there is guidance and specific regulations about how such applications should be dealt with. Increasingly, there is cooperation between the Home Office and the local authority about such cases, and an application for help will usually result in any Home Office procedures, including deportation, detention and removal, speeding up.

Voluntary return

Voluntary return is an essential part of the range of options available to destitute migrants, but what is available depends on the status and type of migrant. Refugee Action runs the Choices service, funded by the Home Office and the European Returns Fund, for people subject to immigration control who want to return. Choices offers independent, non-directive, confidential advice and information about return. If, after such advice, the migrant decides s/he does not want to return, Choices offers referrals to other services for other help. There are three Choices return options, all of which pay fares home and each of which includes some elements of reintegration advice and/or funding and support for the returnee:

  • Assisted Voluntary Return for Irregular Migrants (AVRIM) for anyone who has no legal status in the UK (such as overstayers or illegal entrants) (this programme does not offer any financial help with reintegration)
  • Assisted Voluntary Return for Families and Children (AVRFC) for anyone under 18 or with children under 18 who is an asylum seeker, has discretionary leave outside the immigration rules, a refused asylum seeker or someone with no legal status in the UK
  • Voluntary Assisted Return and Reintegration Programme for asylum seekers, refused asylum seekers and people who were refused asylum but granted discretionary leave outside the immigration rules.

From the end of 2015, the Home Office is taking the voluntary returns service in-house and Choices will close.  No more cases are to be taken on after the end of November 2015.

For EU citizens, voluntary return may be available

  • From local authorities: for people to whom they would otherwise have responsibilities under support under the Children (Scotland) Act 1995 or community care for families with children.
  • Via reconnections projects run under rough sleepers programmes. Guidance on these is available from Homeless Link and Thames Reach runs a dedicated website to encourage reconnections (but don't use the Google translate button available and expect to get anything useful or understandable to share with migrants, as it mutilates the text).
  • From embassies or consulates: information about what some offer is available on the Routes Home website.

For people needing social care (i.e. households with children or vulnerable adults) social work departments may also offer voluntary return if they judge that it would be cheaper to do this than provide accommodation and support, or return is in the best interests of the child or vulnerable adult involved. Services for families with children are offered via schedule 3 of the Nationality, Immigration and Asylum Act 2002 and the Withholding and Withdrawal of Support (Travel Assistance and Temporary Accommodation) Regulations 2002 Si 2002/No. 3078. For vulnerable adults such return arrangements are made via local authority general powers (Part 3 of the Local Government in Scotland Act 2003).

Getting good immigration advice

People in these situations need good immigration advice from an adviser registered or exempted by the OISC or a lawyer. The OISC has a database on its website which can be used to find advisers. Legal aid may also be available for immigration cases (although it has been ended for many in England and Wales). Members of unions may find that their subscription covers immigration advice related to work, and some may have insurance policies that include legal expenses. It is important to note that legally aided immigration work is subject to some quality controls by the Scottish Legal Aid Board, but any solicitor can take on an immigration case if the client is paying for it. So care needs to be taken in finding a solicitor if paying privately. The Scottish Legal Aid Board has a solicitor finder facility.

You can also use the search facility provided by the Immigration Law Practitioners Association: this includes solicitors and other immigration advisers who may not be solicitors.

Background Topics

How can we improve housing for new migrants in the UK?

A Housing Practitioners' Guide to Integrating Asylum Seekers & Refugees

A Housing Practitioners Guide to Integrating Asylum Seekers and Refugees

Published by the Scottish Refugee Council with support from CIH Scotland

Research for these pages was funded by

JRF - Joseph Rowntree Foundation

Chartered Institute of Housing Scotland