Migrants without recourse to public funds

Published: 19 August 2013
  • Individuals subject to immigration control are not usually eligible for ‘public funds’, i.e. housing assistance and most welfare benefits.
  • In very limited circumstances, children or adults who need to be ‘looked after’ may be eligible for local authority support and/or accommodation.
  • To establish whether they have a duty to provide support, the local authority must conduct an assessment of need alongside a test of eligibility.

Since 1996, immigration rules have largely required individuals subject to immigration control (other than asylum seekers) to be financially self-sufficient as a condition of their stay in the UK.1, 2 This means that they must be able to support themselves or be wholly supported by their family or sponsor in the UK without having “recourse to public funds”.

Permission to enter or remain in the UK may be subject to the condition that the person concerned has “no recourse to public funds”. That means that they will not be eligible for most benefits, tax credits or housing assistance that are paid by the state.

This condition does not apply to British citizens, Commonwealth citizens, people who have been allowed to stay permanently, people with refugee status and humanitarian protection, or to people granted exceptional or discretionary leave to remain if there is no condition attached with regard to recourse to public funds. EEA nationals and their families are entitled to the same benefits and housing assistance as UK nationals, subject to certain conditions, depending on which country they come from, and whether or not they are, or have been, working in the UK.i

Undocumented migrants and people with outstanding applications for leave also have no recourse to public funds. While asylum seekers are excluded from housing and most benefits, they may be entitled to help from the separate system of asylum support (see Asylum support, accommodation and dispersal).

For the purpose of the immigration rules, public funds comprise housing support and a range of benefits available to people on low incomes. Excluded public funds are: Universal Credit, income-based Jobseeker's Allowance, Income Support, Child Tax Credit, Working Tax Credit, Social Fund payments, Child Benefit, Housing Benefit, Council Tax Benefit, State Pension Credit, Attendance Allowance, Severe Disablement Allowance, Carer's Allowance, Disability Living Allowance, Personal independence allowance, Social Fund payments, allocation of local authority housing, local authority homelessness assistance, Health in Pregnancy Grant, and income-related Employment and Support Allowance.1,3

Benefits which are dependent on National Insurance contributions are not considered public funds. Moreover, neither is health care nor local authority education schooling, although other rules may restrict their availability to migrants.

However, in some circumstances, usually where there is no other assistance available, local authority social services departments may provide accommodation, financial support and support services to children in need and their families, and to adults who require such support because of physical or mental illness, disability or old age.

These services are primarily provided under the Children Act 1989 (CA 1989) section 17 and the National Assistance Act 1948 (NAA 1948) section 21 and will be provided to people who are ‘ordinarily resident’ within an authority. Ordinary residence has no statutory definition but usually means where the person is actually living or present, even if this is only for a very short period.

Many migrants are also excluded from some of these accommodation and support provisions. The Nationality Immigration and Asylum Act 2002 section 54 and schedule 3 specifically restricts access to services under these acts to a range of migrants who are:

  • citizens of other EEA countries
  • people granted refugee status in other EEA countries
  • ‘failed’ asylum seekers who have failed to co-operate with removal directions
  • ‘failed’ asylum seekers with a dependent child (or children) certified by the Secretary of State as having failed to take reasonable steps to leave the UK
  • people who are in the UK in breach of the immigration laws. This applies to overstayers or illegal entrants, but not to people who claimed asylum on arrival in the UK.

There are some exceptions to the above exclusions. Anyone, whatever their immigration status, who has been compulsorily detained under the Mental Health Act 1983, is entitled to aftercare support, which could include accommodation, under section 117 of the Act.4

Families with dependent children who are subject to a removal order can receive accommodation and support until they fail to co-operate with removal directions. Local authorities can also offer such support to destitute EEA nationals and EEA refugees with dependent children while the local authority makes arrangements for them to travel to the relevant state or until they fail to co-operate with such arrangements.

Accommodation and support under the CA 1989 or NAA 1948 can be provided to those people otherwise excluded by Schedule 3 where it would be a breach of a person’s human rights under the European Convention on Human Rights (ECHR) to refuse to provide them. Such grounds are most likely under Articles 3 or 8 of the ECHR (see Humanitarian protection, discretionary leave and other protection for an explanation of these Articles) but it is not always clear what would constitute a breach of human rights.

There is considerable case law relating to local authorities’ duties for support and accommodation in relation to the ECHR.

Local authorities need to carry out a human-rights assessment to establish whether there is an obligation on the authority to provide support in order to prevent a breach of a person’s human rights.5 For example, the courts have decided that a ‘failed’ asylum seeker excluded by Schedule 3, but who had made fresh representations to the Home Office and who needed looking after, should be supported by Social Services under s21 National Assistance Act 1948 (NAA 1948).6 

In another case, the Court of Appeal also decided that families who had outstanding applications for leave under Article 8, who were not ‘obviously hopeless or abusive’, could be supported under s17 Children Act 1989 (CA 1989).7 The law in this area is extremely complex and where a migrant is seeking support in these circumstances legal advice should be sought as a matter of course.

The provisions under the NAA 1948 do not entitle someone to support from social services if their claim is based solely on destitution. In 2008, a ruling by the House of Lords in M v. Slough Borough Council decided that destitute adults with a medical condition, or who were disabled, frail or old, could only be accommodated by social services if they needed ‘looking after’.

This case involved a person with HIV who had no need for ‘care and attention’ beyond medical treatment provided by the NHS. This judgment removed the right of many HIV-positive asylum seekers to receive housing support from social services under Section 21 of the National Assistance Act.2 The judgment did not clearly define care and attention, but stated that it involved an individual needing some help in looking after him or herself ‘even to a relatively small degree.’ Such help can include needs such as help with domestic tasks, nursing care, counselling, mental-health support, personal care, etc.8

In a 2012 case, the local authority’s refusal of support was deemed unlawful. The Royal Borough of Kensington and Chelsea had refused to provide the person support under the National Assistance Act 1948 or to carry out an assessment under the National Health Service and Community Care Act 1990. Mr De Almeida, a terminally ill Portuguese national living with HIV, filed a judicial review. The High Court decided that the decisions to deny the man care and assistance, and to deport him, amounted to a breach of his right to freedom from ill-treatment and his right to respect for his private life protected by articles 3 and 8 of the European Convention on Human Rights.9

In another judgement known as Zambrano, the European Court of Justice held that the parents of a child who is a national of a Member State must be granted the right to work and the right of residence in that Member State in order to protect the right of the child to live in Europe.10

The UK subsequently amended its rules so that non-EEA nationals who are a primary carer of a dependent British citizen, such as a child, have the right to reside and to work in the UK – provided the British citizen would otherwise be forced to leave the EEA and be deprived of exercising their rights as an EU citizen. Those with a Zambrano right who meet the entitlement criteria will be entitled to claim contributory benefits in the UK (e.g. contribution-based Jobseekers Allowance), but not income-related benefits. The relevant regulations for applicable benefits will be amended.11

Social services’ duty under NAA s21 exists even towards asylum seekers who are eligible for support from the Home Office under section 95 or section 4 of the Immigration and Asylum Act  1999 (IAA1999) (see below Asylum support, accommodation and dispersal) if they need ‘looking after’.

Moreover, if the asylum seeker has children then social services will support the adult with the Home Office contributing to the accommodation and support costs of the children. However, because of the ‘need for looking after’ threshold set by the Slough judgment, fewer asylum seekers with HIV are now eligible for this support.

Other destitute people subject to immigration control may be eligible to NAA 1948 s21 support if they need ‘looking after’. These include adults who have made an application for leave to remain under Article 8 of the ECHR or other immigration rules. Adult overstayers in need of ‘looking after’ may be assisted with accommodation and support under s21, pending their return to their country of origin, and may be assisted with basic travel costs.

Social services departments also have the power to provide residential accommodation for destitute pregnant women and nursing mothers who are in need of care and attention not otherwise available to them.  However, this is a power and not a duty.  If the pregnant woman is an asylum seeker, social services will refer her to the Home Office. In other cases she would have to meet the ‘looking after’ test outlined above, though criteria for this in relation to pregnancy have not yet been tested in court.12 There is evidence of migrant pregnant women sleeping rough and relying on homeless services for meals.13, 14

It is very difficult for women with no recourse to public funds who are destitute as a result of domestic violence to obtain support unless they can also demonstrate a need to prevent harm to themselves or their children in addition to destitution.15 The case of Khan v. Oxfordshire indicated that there may be instances where  a victim of domestic violence has a need for care and attention which  arises from domestic violence itself and not solely because of destitution, for example if she was in need of medical treatment and needed ‘looking after’. This will depend on the individual circumstances of each case.16,17ii

However, it has been argued that “for a significant number of women, the existence of the 'no recourse to public funds' requirement in immigration and welfare law, prevents them from making use of the domestic violence rule because they cannot access safe housing or benefits to escape domestic violence. The result is that they are faced with a stark choice, leave and face destitution or stay and risk their lives.”

In certain circumstances, a victim of domestic violence who came to the UK to join a partner, may be able to apply for indefinite leave to remain. Moreover while preparing this application, the individual may be eligible for short-term leave to remain, lasting three months and with recourse to public funds. The UKBA call this route ‘Destitute Domestic Violence’ (DDV).18

To establish whether they have a duty to support an individual or a family under the CA 1989 and the NAA 1948, local authorities need to conduct both an assessment of need and a test of eligibility. A community care or community mental health needs assessment must be carried out to establish an adult’s need to be ‘looked after’, or, in the case of a child, a CA 1989 s17 assessment.15 Local authorities have a statutory duty to carry out such an assessment if they are aware that a person may be in need of community care or Children Act services. To test eligibility the authority must establish a person’s ordinary residence, whether they are destitute, and whether they are excluded for support under immigration legislation. If they are ineligible on the grounds of immigration status, the authority must nevertheless carry out a human-rights assessment to establish their obligation to support them under the ECHR.12

i. This section does not discuss the entitlements to social assistance of EEA nationals who are not economically active.

ii. Following the judgment in R[Clue] v. Birmingham City Council such women may now be entitled to support under Section 17 of the Children Act if they are making a claim for leave following domestic violence.


  1. Home Office Public Funds. See www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/modernised/cross-cut/public-funds/funds.pdf?view=Binary (date accessed: 1 July 2013), 2013
  2. Willman S and Knafler S Support for Asylum Seekers and Other Migrants London: Legal Action Group , 2009
  3. UK Parliament Nationality, Immigration and Asylum Act UKP, 2002
  4. UKBA 'No recourse to public funds' - what does it mean? www.ukba.homeoffice.gov.uk/while-in-uk/rightsandresponsibilities/publicfunds/, (date accessed: 17 August 2010), not dated
  5. No Recourse to Public Funds Network (NRPF Network) Practice Guidance for Local Authorities: Assessing and Supporting Adults with No Recourse to Public Funds www.nrpfnetwork.org.uk/guidance/Documents/adults_with_nrpf_guidance.pdf, 2009
  6. England and Wales High Court R (AW) v. Croydon [2005] EWHC 2950 QB, 2005
  7. England and Wales Court of Appeal R (Clue) v. Birmingham City Council and another [2010] EWCA Civ 460;[2010] WLR (D) 109, 2010
  8. Meade N and K Housing and support for HIV positive asylum seekers – Implications of Withdrawal of Section 21 Local Authority Support London: National AIDS Trust and Hackney Law Centre www.nat.org.uk/Information-and-Resources/Housing.aspx . Date accessed: 19 March 2010, 2009
  9. UK Human Rights Blog Unlawful to refuse support for Portuguese with AIDS-nearly legal. http://ukhumanrightsblog.com/2012/05/15/unlawful-to-refuse-support-for-portuguese-aids-sufferer-nearly-legal (date accessed: 1 July 2013), 2012
  10. Migrants Rights Network Zambrano rule changes laid before Parliament. www.migrantsrights.org.uk/news/2012/zambrano-rule-changes-laid-parliament (date accessed: 1 July 2013), 2012
  11. Gerardo Ruiz Zambrano v Office national de l’emploi (ONEm). http://curia.europa.eu/juris/liste.jsf?language=en&num=C-34/09 (date accessed: 1 July 2013), 2011
  12. Willman S and Knafler S Support for Asylum Seekers and Other Migrants London: legal Action Group, 2009
  13. Maternity Action Personal communication with the author unpublished, 2010
  14. Open Democracy Gender and destitution, www.opendemocracy.net/5050/jenny-phillmore/gender-and-destitution-in uk (date accessed: 1 July 2013), 2012
  15. Fellas Local Authority Obligations toPeople with No Recourse to Public Funds www.wsmp.org.uk/documents/wsmp/No%20Recourse%20to%20Public%20Funds/nrpf_local_authority_obligations.ppt.pdf, (date accessed: 1 July 2013), 2007
  16. NRPF Network Practice guidance for local authorities - assessing and supporting victims of domestic violence who are from abroad and have no recourse to public funds www.islington.gov.uk/publicrecords/library/Health-and-social-care/Information/Guidance/2010-2011/(2010-04-12)-Victims-of-Domestic-Violence-with-NRPF-Guidance.pdf (Date accessed: 1 July 2013), 2010
  17. Campaign to Abolish No Recourse to Public Funds Resource Pack. http://www.southallblacksisters.org.uk/downloads/HowCanISupportHerResourcePack.pdf (Date accessed: 1 July 2013), 2008
  18. Home Office Protecting victims of domestic violence: a new immigration policy. See www.ukba.homeoffice.gov.uk/visas-immigration/while-in-uk/domesticviolence/ (accessed 13 January 2014), 2012
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