Good practice in social care for refugees and asylum seekers

Background: Relevant legislation and policy

Relevant legislation and policy

Here is the legislation providing the local framework for the assessment and access to social care for asylum seekers and refugees.

Once refugees have been granted leave to stay they are entitled to receive provision on the same basis as UK residents.

• Local authorities have a duty to assess all individuals (including refused asylum seekers) if they appear to be in need of care services under Section 47 of the NHS and Community Care Act 1990.
• Local authorities have a duty to provide care under Section 21 of the National Assistance Act 1948. The Slough judgement clarified local authorities’ responsibilities under Section 21 of the National Assistance Act 1948. It clarified what care means in this context and ruled that to qualify for support, an individual has to have a care need above and beyond the provision of accommodation, such as personal care or household tasks.
• Schedule 3 of the Nationality, Immigration and Asylum Act 2002 prevents local authorities from routinely providing support to refused asylum seekers who are in the country unlawfully. There are some exceptions to these exclusions but they do not prevent local authorities providing assistance to refused asylum seekers if to do otherwise would be a breach of an individual's human rights under the Human Rights Act 1998. This means that local authorities should assess refused asylum seekers if care needs have been signalled, but it does not necessarily mean that they should provide support.
• Local authorities consider eligibility for care needs on a case by case basis, taking into account all the factors surrounding the individual's circumstances and seeking their own legal advice if necessary.
• In circumstances where an asylum seeker or refugee is eligible for support, direct payments or a personal budget may be the means by which support is provided rather than direct services.

Since 2009 the Department of Health has been reassessing the eligibility of refused asylum seekers to access NHS healthcare. The government’s consultation on a policy of restricted access to free treatment for refused asylum seekers was subject to a judicial review in April 2008, and was initially overturned but the government successfully appealed against this verdict in the court of appeal 2009.

The Court of Appeal (CA) found that refused asylum seekers were not eligible for free care on the grounds that they ‘cannot be said to be ordinarily resident in the UK, since their stay here is not 'ordinary'. The CA also found that failed asylum seekers cannot be considered exempt from charges by having resided lawfully in the UK for one year prior to treatment since they do not have the necessary ‘leave to enter’ in order to reside lawfully in the UK.

The Immigration Bill 2013 outlines planned legislation to introduce surcharges for migrants accessing health and social care provision.
Migrant Health Guide.

Links to UK legislation, guidance and Briefings

Care Act 2014
The Care Act contains some rules which may affect refugees and asylum seekers. These rules relate to rights to residency and persons subject to immigration controls.
Immigration and Asylum Act 1999
Local Government Act 2000
Nationality, Immigration and Asylum Act 2002
Asylum and Immigration (Treatment of Claimants, etc.) Act 2004
Department of Health, Social Services and Public Safety (2004)
Borders, Citizenship and Immigration Act 2009
Equality Act 2010