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NRPF: The crisis facing the children of migrants

Cameron Boyle, political correspondent for the Immigration Advice Service, explains the impact on the children of migrants of having no recourse to public funds and encountering problems with local authorities’ application of Children Act 1989, section 17.

Cameron Boyle, political correspondent for the Immigration Advice Service.

Many children of migrants in the UK are living in indescribably desperate conditions due to the immigration status of their parents. Food poverty, street homelessness and abject destitution are commonplace, yet their voices continue to be ignored in decision-making. In any moral society, the safety and wellbeing of children should take precedence above all else. However, the 'No Recourse to Public Funds' (NRPF) condition is applied to all 'persons subject to immigration control' (PSIC). 'Public Funds' used in this sense encompasses a considerable amount of mainstream benefits. Many of the children suffering as a result of NRPF hold British citizenship. Many have lived in the UK their whole lives. Yet they are prevented from accessing a vital safety net, purely due to their parents' irregular immigration status.

The only avenue of support left for migrant families in such circumstances comes via Section 17 of the Children Act 1989, whereby local authorities are obliged to provide both subsistence and housing to all children in need (as defined by the provision) under their jurisdiction. However, despite its intended purposes, a combination of the government's 'hostile environment' policy (which the Government now refers to as the 'compliant environment' policy and by which it seeks to make staying in the United Kingdom as difficult as possible for people without leave to remain, in the hope that they may "voluntarily leave") and cuts to public spending means that many families are prevented from accessing the support they need. Thorough systemic reform is needed in order to safeguard the children of migrants in the UK. This article will discuss the key issues facing NRPF families, and will pinpoint key areas where change is needed.

What is NRPF?

The 'No Recourse to Public Funds' condition is attached to immigration statuses of varying types. It is a clause that does not necessarily lead to negative consequences. For example, holders of a Tier 2 General Work Visa or a Tier 4 Student Visa are excluded from accessing public funds. Holders of the former are able to support themselves through wages – to work in the UK one requires an employment sponsor who guarantees that you will be earning above the £30,000 threshold. Holders of the latter can be granted the visa only if they have demonstrated that they have the means to support themselves. In light of this, NRPF is not always synonymous with destitution. It is those whose immigration status has changed or who have never been self-sufficient who are most likely to encounter difficulties.

The immigration statuses to which the NRPF condition is applied are as follows:

• Persons Subject to Immigration Control (PSIC): this category includes those who have stayed in the country after the expiration of their visa and have been unable to, or are in the process of, regulating their immigration status. It also includes undocumented migrants who have entered the country illegally. PSIC also includes documented migrants who have the NRPF clause attached to their leave – most forms of time-limited leave are included in this, such as the aforementioned Tier 2 and Tier 4 visas.

• Asylum seekers and refused asylum seekers: asylum seekers who have a pending asylum support claim are excluded from accessing public funds. Voluntary sector support is often sought for individuals in this situation. Also excluded from public funds are asylum seekers who are 'Appeal Rights Exhausted', and have reached the end of their legal process.

• An additional category concerns those who do not satisfy the eligibility criteria for accessing public funds. A relevant example of an individual in this category is a 'Zambrano' carer, ie a primary carer of a British citizen who is not a national of an EEA member state. Carers in this situation have the right to remain alongside the child of whom they are the primary caregiver, but are given the NRPF condition.

A further group of individuals who receive the NRPF condition are those who have been granted leave to remain on the basis of family or private life. The right to reside on this basis is brought about by Article 8 of the European Convention on Human Rights, which states that there 'shall be no interference by a public authority' into a person's right to respect for their family or private life. With this in mind, there are circumstances in which a visa overstayer or illegal entrant can be granted leave to remain on this basis. Project 17, an organisation that works with NRPF families, advocate that 'Legal aid should be reinstated for individuals applying for leave to remain on the basis of family or private life.' This is a crucial way in which central government can make the law fairer for NRPF migrants. One of the key drivers of destitution for individuals in this situation is the lack of 'free legal advice and representation to resolve immigration issues.' The absence of legal aid for individuals in this situation increases the likelihood of a person becoming either destitute or separated from their family. Project 17 also advocates the scrapping of immigration application fees for leave to remain on the basis of family or private life.

The services and support that are classed as 'Public Funds' in this context are as follows:

• Attendance allowance

• Carer's allowance

• Child benefit

• Child tax credit

• Council tax benefit

• Council tax reduction

• Disability living allowance

• Housing and homelessness assistance

• Housing benefit

• Income-based jobseeker's allowance.

What is Section 17?

Under Section 17 of the Children Act 1989, local authorities are obliged to provide subsistence and housing for all children 'in need' in their area. As Project 17 states, the classification of 'in need' is broad. A child is considered in need if they cannot achieve or maintain "a reasonable standard of health or development' (s 17(10)).

Migrant families with NRPF often contain children classed as 'in need' due to their exclusion from a number of benefits. As a result, local authorities are responsible for the wellbeing of such children in spite of their parents holding the NRPF status. A report from Compas estimates that there are 6,000 NRPF children being supported by Section 17 in England and Wales. Whilst it is in place to function as a lifeline for destitute children, cuts to public funding and the government's apparent focus on exposing the fraudulence of migrants has resulted in (according to the view of many, including The Children's Society) Section 17 prolonging destitution and suffering rather than ameliorating it.

What are the key drivers of destitution amongst migrant families?

Many migrant NRPF families experience destitution according to the definition applied by the government. According to the Immigration and Asylum Act 1999 s 95(3) and the Nationality, Immigration and Asylum Act 2002 s 19(1), a person and their dependants are defined as destitute if they do not have adequate accommodation and do not have the requisite funds available for providing food and other essential items. However, The Children's Society point out that destitution is a far more multifaceted concept than this and deserves a broader definition. There are a worrying number of incidents where a migrant marries a British national, and becomes trapped in an abusive relationship. In many cases the migrant has NRPF so is unable to leave the relationship, but they also do not meet the destitution criteria because they are deemed as having accommodation and subsistence. The individual is often still destitute (in real terms) due to the abusive nature of their relationship, but is not deemed as such in the eyes of the law. Going forward, the statutory definition of destitution ought to account for those without any basic rights or entitlements rather than focusing purely on one's access to housing and finances.

The Children's Society pinpoints the key drivers of destitution amongst migrant families as being:

• not having a legal right to work

• low income

• relationship breakdown and domestic violence

• inadequate and precarious housing

• the lack of free legal advice and representation around immigration

NRPF families are also excluded from the government's 30 hours of free childcare scheme. Without access to free childcare, parents are often unable to work. When NRPF is factored into that equation, there is nothing to prevent a family from falling into destitution. Project 17 advocates that the free childcare scheme should be extended to NRPF families.

As stated, the lack of free legal advice is a significant driver of destitution. In 2012 legal aid was cut for non-asylum immigration cases. Many NRPF families have to resort to selling possessions and engaging in illegal forms of employment in order to fund legal costs. Not only this, but the Home Office application fee is beyond the means of most families (£2,389 per applicant plus a fee for each dependant). Project 17 recommends that application fees should be scrapped for those applying for leave to remain on the basis of private or family life.

The 'hostile environment' policy is also pertinent when discussing the key drivers of destitution. The policy has resulted in employers and landlords taking the role of immigration officials. The government's 'right to rent' scheme requires landlords to check the immigration status of tenants. This will lead to increased levels of homelessness for undocumented migrants such as those with a pending visa application.

What are some of the hostile gatekeeping measures in place that prevent migrant families from accessing support?

The hostile environment policy has also led to hostile gatekeeping methods being used to make it difficult for NRPF migrants to access Section 17 support. Sixty per cent of Project 17's clients were wrongly refused support when they first approached their local authority.

Project 17 states that these methods include:

 Misinformation: 22 per cent of families were wrongly refused support on the basis of their immigration status. Some families were wrongly told that they were attempting to request public funds by seeking Section 17 support, even though it is in place for those with NRPF. Some parents are excluded from support under Schedule 3 to the Nationality, Immigration and Asylum Act 2002, however local authorities must decide whether a failure to grant support would be in breach of human rights.

• Attacks on credibility: Local authorities often focus on exposing a person's destitution claim as fraudulent rather than safeguarding the needs of a child. Fraud officers are often embedded into the Section 17 interview process. Parents are frequently unaware of this and therefore unable to seek legal advice in advance. Project 17 advocates that fraud officers should have no involvement in Child in Need assessments, as they act as a deterrent to vulnerable families and therefore put children at greater risk of destitution.

• Intimidation and aggression: Migrant families seeking Section 17 support claim that they are regularly the recipients of intimidation and aggression from local authorities and immigration officials. For example, one Nigerian woman told Project 17 that she had been called 'bush girl' by her social worker. Immigration officials form part of 'Child in Need' assessment teams in several London boroughs. The fear of deportation or detention deters many families from seeking support.

• Threats to take child into care: Many NRPF migrants have said that they have been told by local authorities that their children would be taken into care. Legally this can only happen if there are genuine safeguarding concerns.

In order to ensure that the needs of the child take precedence above all else, it is crucial that 'Child in Need' assessments are conducted in line with Article 3 of the UN Convention on the Rights of the Child. This states that the child's views are treated with the utmost importance. Furthermore, Project 17 states that NRPF Network Practice Guidance should be adopted by local authorities to ensure they are carrying out consistent, lawful assessments and making decisions in accordance with best practice.

What are the key issues with the housing provided under Section 17?

The housing provided by Section 17 is generally not fit for purpose. A staggering 24 per cent of Project 17's clients had been left street homeless by their local authority. Article 27 of the UN Convention on the Rights of the Child states that every child must have a standard of living which is conducive to their health and development. However, children regularly report living with rats and cockroaches, not having access to basic facilities, not having any privacy, and anti-social behaviour from other residents. A study by Shelter has found that inadequate accommodation has a profound effect on a child's educational development. For the effect on children of living in inadequate housing, see also recent reports from the Children's Commissioner for England and the National Housing Federation.

This is echoed by the work of Project 17, which found that children were regularly being placed in housing that was a considerable distance away from their school. Such an early start and long journey was resulting in children being unable to function during the school day. The lack of statutory guidance in place regarding the provision of housing under Section 17 sustains the issue. The Children's Society recommend that all guidance is in line with the Decent Homes Standard, as this would ensure that all accommodation was conducive to a child's development.

What are the key issues with the subsistence provided under Section 17?

Section 17 financial support is often simply not enough to live on. In several cases the weekly subsistence rate falls below the asylum support rate of £36.50 per person per week. This is the legal bare minimum, and the local authorities that fall below this are in breach of the European Convention on Human Rights. As a result, Project 17 recommends that 'starting rates for financial support provided to families with NRPF under section 17 should never be lower than rates provided to destitute asylum-seeking families under section 4 of the Immigration and Asylum Act 1999'. Project 17 also states that some local authorities set financial subsistence rates in line with child benefit rates, a practice that was found to be unlawful in the case of PO v LB Newham [2014] EWHC 2561 (Admin).

There should be clear statutory guidance in place regarding how financial support is calculated. Some local authorities have provided money for the children but not the parents, even though this leads to the overall family unit suffering. The Children's Society's practitioners have been told of the ad-hoc nature of payments, and how subsistence rates fluctuate depending on which local authority area one is situated in. This is not a sustainable or effective way of administering financial support. Subsistence rates should be fair and consistent. The Children's Society recommends that subsistence rates 'should be aligned to mainstream benefit rates paid for living expenses, where accommodation is provided'.  Furthermore, Project 17 recommends that changes should be made to the Education Act 1996 to ensure children in families with NRPF are entitled to free school meals.

Going forward

At present, the local authorities responsible for providing Section 17 support to NRPF migrants are in violation of Article 3 of the UN Convention on the Rights of the Child. As mentioned, this states that the interests of the child should be the primary concern in decision-making. It is clear that this is not the case, as exposing the parents' destitution claim as fraudulent is given priority. Not only this, but a lack of statutory guidance regarding the provision of housing and subsistence is resulting in children suffering from destitution. Reform is needed on a local and national level in order to safeguard the needs of children.

Cameron Boyle is a political correspondent for the Immigration Advice Service.