Migrants with no Immigration Status
-
Intro
In the UK there are believed to be a number of people present who do not have permission to be in the country. They are variously known as illegal immigrants, irregular migrants or undocumented migrants. There is no generally accepted definition of what an irregular or undocumented migrant is. There is general agreement that calling someone an “illegal immigrant” is insulting and inaccurate, even though this term is used a lot by the media. In terms of FNPs without immigration status who may be released into the community, you may see: • FNPs who had been living in the UK without immigration status who are released back into the UK following a sentence which does not meet the criteria for deportation. These may include refused asylum seekers, overstayers or trafficked persons. While these cases may be passed to the Immigration Control Enforcement team for removal action, it is not uncommon for people to remain in the UK for some period of time. • FNPs who had been living in the UK with no Immigration status but are resisting deportation on Article 8 Human Rights Act grounds. FNPs who are seeking to stay in the UK on asylum or Article 3 Human Rights Act grounds see the section on asylum seekers. • FNPs who previously had status in the UK, for example Indefinite Leave to Remain, who have had their immigration status revoked pending deportation action, but who are resisting deportation on Article 8 Human Rights Act grounds. Again, FNPs who are resisting deportation on asylum or Article 3 Human Rights Act grounds should refer to the section on asylum.
-
Rights and Entitlements
Any person who is released into the UK with no immigration status will face substantial problems in accessing any kind of services. This will cause problems for any person working to resettle that FNP or for any Probation staff member working with the FNP in the community.
-
Accommodation
A person who has no immigration status is not eligible for social housing from a local authority or for any housing benefit. Therefore, unless they can be accommodated by a friend or family member, they will have to seek other options Section 4 accommodation An FNP who is resisting deportation may be eligible for support from the Home Office known as Section 4 support. Section 4 support consists of provision of accommodation and non-cash support (currently provided using a card known as an Azure Card which can be used at certain retailers). An FNP who is currently detained on an immigration hold can apply for Section 4 support prior to an application for immigration bail. An application can be made to the Home Office s4 Bail Team on the form which can be found on their website here: http://www.ukba.homeoffice.gov.uk/asylum/support/apply/section4/ When an application for a bail address is received, the HOIE will seek advice from the Offender Manager on what kind of accommodation is suitable for compliance with any license conditions. Usual practice in provision of s4 accommodation is that a person is first accommodated in Initial Accommodation (IA), usually B&B or other similar short term accommodation which is managed by third party providers. They will then be moved on to Standard Dispersal Accommodation (SDA), which can be situated anywhere in the UK, usually multiple occupancy accommodation in urban areas. Initial Accommodation may be deemed not appropriate if the applicant has a conviction for a violent, sexual or serious drug offence and/or falls into MAPPA category 1, 2 or 3, managed at Level 2 & 3. Depending on the information provided by the OM, the first accommodation offered may be Standard Dispersal Accommodation if this is more suitable then IA. In some cases, where deemed necessary from the information provided, Complex Bail Accommodation may be recommended. This is appropriate where the Offender Manager has identified specific licence conditions which could not be met if the individual were to be accommodated in Standard Dispersal Accommodation. Where Complex Bail Accommodation satisfies the accommodation requirements but is not available, the application for accommodation will be refused on the basis that the Home Office is not in a position to provide the applicant with a suitable section 4 bail address within the cohort of accommodation available. However, any decision to refuse accommodation may be challenged at an appeal to the Tribunals Service – Asylum Support and/or at Judicial Review. When providing Section 4 accommodation, the Home Office should take account of any risk posed to other people at the address, and the general public. Those who are accommodated at the same address are likely to be a mixed population of offenders and non offenders When the FNP has been assessed as requiring management in an Approved Premises, they may still apply for section 4 accommodation for move on purposes from the Approved Premises. Approved Premises may insist that the Home Office confirm that section 4 accommodation will be made available for move on purposes before they accept an FNP Approved Premises Approved Premises are primarily an offender management resource, rather than a form of accommodation. Most but not all, Approved Premises are full board; the rest are self-catering. Approved Premises are not suitable for offenders whose licence period has expired. AP residence lasts only as long as the offender’s risk of harm requires it and so cannot be assumed to extend to the licence expiry date. Pressure of space means that AP management will need to move offenders on as soon as the situation allows. Any plan to place a foreign national offender in an AP must therefore also include a move-on plan, or it is likely to be rejected by the AP. It is important that the Home Office confirms that suitable s.4 accommodation will be provided by the Home Office for move-on accommodation. While offenders are in APs, UKBA has agreed to fund their maintenance charges where they are unable to fund them themselves. Because these charges do not include catering costs in self-catering APs, those APs will not be suitable for the majority of foreign national offenders.
-
Social Services assistance
In very limited circumstances social services sometimes provide housing for families with children or other people who are in need of care and support. These cases must meet very specific criteria under two pieces of legislation. S17 Children Act 1989 S17 of the Children Act 1989 imposes upon social services a duty to promote and safeguard the wellbeing of children in need in their area. In some cases, the powers created under this legislation have been used to accommodate and support families with children. This area of law has been very heavily legislated and any person seeking accommodation under these powers would be advised to take expert legal advice. In brief, if a person or couple • Are the carers for a child or children under the age of 18; and • Are destitute and without accommodation; and • Are not entitled to any other form of accommodation (for example s4 asylum support); and • Cannot reasonably be expected to leave the country, usually because they have an ongoing Article 8 Human Rights Application then they may be able to get some assistance from social services. The usual process in such cases would be that the child/children in the case would be referred to social services for a child in need assessment. Social services must look at the best interests of the child when considering such cases so, for example, although the duty under the Act is for the wellbeing of the child, they must consider whether it would be in the best interests of the child to be accommodated without their parent/carer (i.e. taken into care) and, in most cases, unless a parent/carer can be shown to be harming or mistreating the child, it would be rare to be able to show that it would be in the best interests of the child to separate him/her from his/her parents. However, it is not unusual for social services in the early stages of an assessment to stress the possibility that a child could be taken into care without clarifying in what circumstances this might occur. It should also be noted that in some social services areas (particularly those in less urban areas) front line social workers may not be familiar with the power to accommodate families. S21 of the National Assistance Act 1948 Vulnerable adults may apply to local social services for help under the community care legislation. The local authority must carry out an assessment of need under s47 the National Health and Community Care Act 1990 and, if the person is assessed as needing accommodation, may have a duty to provide it under S21 National Assistance Act 1948 (more commonly used to place people in care and nursing homes). Section 21 imposes a duty on social services to provide accommodation to "persons aged eighteen and over who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them." There have been a number of cases which have clearly established that someone who is destitute and has no accommodation and no means of support at all is soon likely to fall into the state where their health has deteriorated to the extent that they will be in need of care and attention because of their destitution. Again, this an area where there is a great deal of case law around what constitutes a need for care and attention. It has been held that the need must not have “arisen solely because he is destitute; or because of the physical effects, or anticipated physical effects, of his being destitute.” Because of the complexity of this issue anyone seeking assistance under this provision should seek expert legal advice. Other accommodation for people with no recourse to public funds The remaining options for people without recourse to public funds are extremely limited and tend to depend on the availability and good will of charitable or faith organisations. Some people find it hard to believe that it can be the case that people who are present in the UK and who are known to Immigration Enforcement can be in a situation where they have no entitlement to any accommodation or support; however, it is true. In general, the following avenues may be explored • Winter night shelters. Between November and March a number of winter night shelters open which may offer temporary respite for those with no other accommodation available to them. Such accommodation tends to be extremely basic, for example a mattress on the floor of a church building, but may be a better alternative than the other option, which would usually be sleeping rough. In London, the website Homeless London publishes a list of winter night shelters in the London area annually, usually in early November. It can be found on www.homelesslondon.org. For lists of winter night shelters in other areas contact local homelessness agencies. • For people who have no recourse to public funds but do have permission to be in the UK (for example, EEA nationals who have been unable to access benefits, people with leave to remain but a no recourse condition) they may be able to get assistance from an organisation such as Emmaus UK, who provide accommodation for a small number of people on the condition that they contribute to and abide by the rules of the community. If you have an Emmaus group in your area it is worth building a relationship with them. You can find out more information about Emmaus at their website www.emmaus.org.uk. • For other clients with no recourse to public funds they may be able to seek support from one of a very small number of charities who provide accommodation to people in this situation. Many of the charities only support particular kinds of migrant (for example, refused asylum seekers) and many may not be able to accommodate people who have a history of serious offending. A list of charities can be found on the NACCOM website, www.naccom.org.uk.
-
Subsistence
Those people who are in accommodated by the Home Office in Section 4 accommodation will receive non-cash subsistence in the form of card (Azure Card) which can be used at certain retailers. Of course, this can be problematic as it means that the person cannot pay for any item which is not sold by an approved retailer, for example transport fares, a barber or a launderette. For those who are not in receipt of Section 4 support, the situation may be even worse. Some FNPs may have family and friends who are willing and able to support them, but often if family and friends are in difficult financial circumstances themselves, the added burden of another person to support can be challenging and can put strain on relationships. A person who is in receipt of benefits cannot claim additional benefit for a person who has no recourse to public funds, so, for example, if a former FNP went to live with a spouse who was in receipt of Jobseeker’s Allowance, they would not be able to claim JSA for a couple when their partner moved in with them. They might in fact find themselves entitled to less money, for example, if they are in receipt of Housing Benefit, once their former FNP moved in with them, the Housing Benefit would be subject to a non-dependent deduction, regardless of the fact that the former FNP would not be eligible for any benefits and would be unable to work. For those who end up surviving on the goodwill of friends and family, or who have nothing, they may wish to explore the following options. Foodbanks Foodbanks are not designed as a long term option for those who have no other support. They are primarily envisaged as a ‘stop gap’ measure for those who are between means of support, for example awaiting the payment of a new benefit or on a temporary benefit sanction. However, most food banks are willing to give up to 3 food parcels (usually provided on a weekly basis) to people without support due to other circumstances. Most foodbanks in the UK are registered with the Trussell Trust. A list of foodbanks can be found on their website www.trusselltrust.org/map. It is wise to contact the Foodbank before attending as most only take referrals from registered referral agencies and there may be other criteria which apply for access Homelessness Day Centres and Soup runs The Pavement magazine, a resource for homeless people, publishes a list of homelessness day centres, soup runs and other essential services for homeless people. Most of these are accessible to migrants with no immigration status. A directory of services can be found on their website, www.thepavement.org.uk/services.php.
-
Health Care
Not all health care in the UK is free. The National Health Service provides it for all those who qualify, but those who do not qualify are charged. Where charges are possible, therefore, documents may be checked since immigration status is a major factor in determining eligibility. While there is no reason for services that do not attract charges to check immigration status, they sometimes do, and they may refer a patient on to services for which a charge is payable and checks may be made. The charging regulations discussed here (The National Health Service (Charges To Overseas Visitors) Regulations 2011 No. 1556) apply only to England. The new regulations came into force on 1st August 2011, after a consultation held in the previous year. Full details including the actual regulations and guidance are published on the website of the Department of Health. Health services exempt from charges Health services provided by GPs, opticians and dentists (primary services) are not covered by the charging regulations. GPs have discretion to refuse people from their lists as permanent patients but cannot do this on any discriminatory basis. Services provided as NHS walk-in centres are usually primary services and not covered by charging regulations. This can be confusing as some walk-in centres (like some GP out of hours services) are provided from hospital bases. However, services provided in the community (outside a hospital) by someone employed by a hospital are chargeable. All health services can be provided privately, for a charge. The charging regulations also list which NHS services are exempt. They are (a) accident and emergency services (including ambulance services), whether provided at a hospital accident and emergency department, a minor injuries unit, a walk-in centre or elsewhere, but not including any services provided— (i) after the overseas visitor has been accepted as an in-patient; or (ii) at an outpatient appointment; (b) services otherwise than at, or by staff employed to work at, or under the direction of, a hospital; (c) family planning services; (d) treatment in respect of a disease listed in Schedule 1 of the Regulations. These are infectious diseases (so a public health reason is offered for treatment): Acute encephalitis Acute poliomyelitis Anthrax Botulism Bruscellosis Cholera Diphtheria Enteric fever (typhoid and paratyphoid fever) Food poisoning Haemolytic uraemic syndrome (HUS) Infectious bloody diarrhoea Invasive group A streptococcal disease and scarlet fever Invasive meningococcal disease (meningococcal meningitis, meningococcal septicaemia and other forms of invasive disease) Legionnaires’ Disease Leprosy Leptospirosis Malaria Measles Mumps Pandemic influenza (defined as “phase 6” in the World Health Organisation’s (WHO) influenza pandemic phases, or influenza that might become pandemic – defined as “phase 4” or “phase 5”) Plague Rabies Rubella Severe Acute Respiratory Syndrome (SARS) Smallpox Tetanus Tuberculosis Typhus Viral haemorrhagic fever Viral hepatitis Whooping cough Yellow fever (e) treatment for sexually transmitted infections, In England, treatment for HIV is exempt from charge for overseas visitor. Elsewhere in the UK, HIV treatment for non-exempt overseas visitors can be restricted to the initial diagnostic test and associated counselling; (f) services provided to an overseas visitor who is liable to be detained in a hospital or, received into guardianship under the Mental Health Act 1983 “(the 1983 Act)” or any other enactment authorising detention in a hospital by reason of mental disorder, or subject to a community treatment order under the 1983 Act; (g) treatment which is provided in circumstances where— (i) a requirement to submit to the form of treatment concerned is imposed by, or included in, an order of a court; and (ii) paragraph (f) does not apply. Health services subject to charges Generally any services provided by a hospital trust rather than a primary care trust will be subject to charges. This includes: • hospital treatment of all kinds • maternity care provided by the hospital • pregnancy terminations (abortions) • health care provided by teams under the control of hospitals Some people do not have to pay charges The Regulations provide a comprehensive list, which includes: • Anyone who has been lawfully resident in the UK for 12 months (except people who have come to the UK as visitors for medical treatment) and their family members. • If a person completes the 12months while in treatment then charges no longer apply for any treatment received after the 12 month period has ended. • Anyone lawfully in the UK in order to work, study, do certain types of volunteering, be self employed or to take up permanent residence in the UK and their family members • Anyone exercising EU rights to reside or reciprocal rights underwritten by the EU • Refugees, those granted humanitarian protection and discretionary leave, asylum seekers and rejected asylum seekers who are supported by the Home Office under S95 or S4 of the IA Act 1999. • Immigration detainees and prisoners • Employees on UK registered shipsVictims of trafficking: “anyone who the ‘Competent Authorities’ of the UK: (a) consider that there are reasonable grounds to believe that person is a victim within the meaning of Article 4 of the Convention, and the recovery and reflection period in relation to that person under Article 13 of the Convention has not yet expired; or (b)have identified that person as a victim within the meaning of Article 4 of the Convention. • The Competent Authorities are the UK Human Trafficking Centre (UKHTC) and, where cases are linked to asylum and immigration issues, the UK Border Agency (UKBA). • Cases certified as needing treatment for exceptional humanitarian reasons by the Secretary of State (the example given is where the UK caused the injury to be treated) • Diplomats • People serving in the British or NATO armed forces • People covered by reciprocal agreements (a list of these is provided in the guidance, it includes countries that are part of the ECSMA) If a patient starts a course of treatment while exempt and then becomes liable for charges, the treatment remains free until it is finished. Treatment subject to charges Even when charges are payable, there are certain rules. Generally, at the point at which a patient enters the hospital system, s/he is told that she will be charged, and payment requested before treatment starts. If s/he cannot pay, then treatment is refused. But treatment must always be offered if it is immediately necessary or urgent, irrespective of the ability to pay. The Guidance says: “4.5 Immediately necessary treatment is that which a patient needs: to save their life, or to prevent a condition from becoming immediately life-threatening, or promptly to prevent permanent serious damage from occurring. 4.6 Relevant NHS bodies must always provide treatment which is classed as immediately necessary by the treating clinician irrespective of whether or not the patient has been informed of, or agreed to pay, charges, and it must not be delayed or withheld to establish the patient’s chargeable status or seek payment.” Maternity treatment “4.7 Due to the severe health risks associated with conditions such as eclampsia and pre-eclampsia, and in order to protect the lives of both mother and unborn baby, all maternity services, including routine antenatal treatment, must be treated as being immediately necessary. No woman must ever be denied, or have delayed, maternity services due to charging issues. Although she should be informed if charges apply to her treatment, in doing so, she should not be discouraged from receiving the remainder of her maternity treatment. OVMs and clinicians should be especially careful to inform pregnant patients that further maternity care will not be withheld, regardless of their ability to pay. 4.8 Urgent treatment is that which clinicians do not consider immediately necessary, but which nevertheless cannot wait until the person can be reasonably expected to return home. Clinicians may base their decision on a range of factors, including the pain or disability a particular condition is causing, the risk that delay might mean a more involved or expensive medical intervention being required, or the likelihood of a substantial and potentially life-threatening deterioration occurring in the patient’s condition if treatment is delayed until they return to their own country. 4.9 For urgent treatment relevant NHS bodies are strongly advised to make every effort, given the individual’s circumstances, to secure payment in the time before treatment is scheduled. However, if that proves unsuccessful, the treatment should not be delayed or withheld for the purposes of securing payment. 4.10 Treatment is not made free of charge by virtue of being provided on an immediately necessary or urgent basis. Charges found to apply cannot be waived." Other treatment is described as non-urgent: routine elective treatment that can be left until the patient returns home. Obviously, if the patient cannot return home soon, treatment that was non-urgent may become urgent. All decisions about whether treatment is urgent, immediately necessary or non-urgent are made by clinicians. The guidance, however, notes that: “4.17 For undocumented migrant patients, including failed asylum seekers, the likely date of return may be unclear and will have to be assessed on a case-by-case basis, including their ability to return home. Some may be prevented by travel or entry clearance restrictions in their country of origin, or other conditions beyond their control. 4.18 For some cases relating to undocumented migrants, it will be particularly difficult to estimate the return date. Relevant NHS bodies may wish to estimate that such patients will remain in the UK initially for six months, and the clinician can then consider if treatment can or cannot wait for six months, bearing in mind the definitions of urgent and non-urgent treatment given above. However, there may be circumstances when the patient is likely to remain in the UK even longer than six months, in which case a longer estimate of return can be used.” Once treatment has started, the aim is, wherever possible, to stabilise the patient so that s/he can return home to continue treatment if necessary. The guidance says: “This should be done wherever possible, unless ceasing or limiting treatment would precipitate a deterioration in the patient’s condition.” Hospital charging procedures The hospital has the obligation to charge, but hospital trusts are encouraged to tell GPs about the charging regulations so that they can tell patients if they are likely to be charged for any treatment for which they are referred. GPs are also asked to identify any patients they refer who may be covered by the charging regulations, but are under no obligation to do so. When a new patient arrives at a hospital or is referred to it, the booking clerk, receptionist or other staff member in the hospital asks two questions: - “Are you a UK/EEA/Swiss national or do you have a valid visa or leave to enter/remain in the UK?” - “Which country/countries have you lived in for the last 12 months?” Patients will then be asked to provide “basic proofs” of their status and residence. If the answers to these questions or lack of proofs indicates that the patient might be classed as an “overseas visitor” liable to pay charges, the case will be referred to the Overseas Visitors Manager and team who will investigate further and decide if charges are payable. These teams often contact Home Office Immigration Enforcement. Any treatment not deemed immediately necessary will be withheld until payment is arranged. If treatment has to be provided before payment is received, patients (or someone representing them) are usually asked to sign an undertaking that they will pay. Hospitals are encouraged to install facilities for credit card payments to encourage easy payment. If a patient dies, payment may be sought from his/her estate but relatives should not be actively pursued for payment, and they are certainly not liable for any payments for treatment. Hospitals are not allowed to waive charges and are expected to take all reasonable steps to get payment, including employing debt recovery agencies. Once all reasonable steps to recover the debt have been taken, and the hospital is satisfied that, given the patient’s circumstances, it cannot recover the debt, it can be written off. Effect of NHS charges on immigration status Since October 2011, anyone with a debt of or in excess of £1,000 will normally be refused by HOIE if they seek further permission to enter or remain in the country.
-
Employment, Education and Training
A person who has no immigration status in the UK is not entitled to take up employment and is likely to be barred from taking up most mainstream education and training. Theoretically, if a person is known to HOIE and has some kind of ongoing immigration case there is nothing to prevent them from taking up voluntary work. In terms of education and training, some community organisations may run informal classes or training to which access is not dependant on immigration status.