Written evidence from Child Poverty Action Group (CPN0006)

Many people in the UK and their children are excluded from accessing public funds through their immigration status. Poverty is likely to be much deeper among children whose parents have no recourse to public funds (NRPF), particularly if those parents have low or no earned income. Without access to the social security system, families are likely to rely on emergency provisions such as food banks and charitable support. We are extremely concerned that the acceptance rate for applications to have an NRPF condition lifted on the grounds of destitution has fallen sharply in 2021.

Abolishing NRPF would reduce extreme poverty among children while also helping to satisfy the government’s human rights obligations, removing the need for government to establish mechanisms to uphold these obligations towards families with NRPF. In the short term, the government can do more to protect children affected by NRPF from poverty by:

In addition to immigration status, children can be shut out of the benefit system due to their parents residence status. This primarily affects EEA nationals granted pre-settled status under the EU Settlement Scheme. They have been granted unconditional leave to remain by the Home Office but do not pass the "habitual residence test" (HRT) which is required by DWP to access certain benefits.

The number of EEA nationals being denied access to social security benefits because they do not pass the HRT is a growing concern. Between March and May 2021, 3,700 UC claims by EEA nationals in families containing children were rejected on the grounds of the HRT. There is no mechanism for these families to have their habitual residence status waived on human rights grounds if they are destitute. The government should amend the HRT rules so those with pre-settled status have a sufficient right of residence.

About this submission

Child Poverty Action Group works on behalf of the more than one in four children in the UK growing up in poverty. It doesn’t have to be like this. We work to understand what causes poverty, the impact it has on children’s lives, and how it can be prevented and solved – for good. We provide training, advice and information to make sure hard-up families get the financial support they need. We also carry out high profile legal work to establish and protect families’ rights.

As an organisation working to end child poverty, NRPF is a major concern. Having access to public funds is crucial to ensure children have a good start in life. Not having access to public funds has far reaching consequences into every aspect of children’s lives. Any government serious about ending child poverty must abolish the NRPF condition immediately.

This submission focuses primarily on one aspect of children’s and families access to public funds – social security. This is where our expertise lies / where we have most evidence. It is also of particular importance when considering the impact of NRPF on child poverty, as we know support provided via the social security system is the most immediate and effective way to reduce child poverty.

After consultation with Work and Pensions Committee clerks, we have included evidence relating to EEA nationals excluded from the benefit system. While not the explicit focus of this inquiry, CPAG is concerned about growing numbers of EEA nationals who have been shut out of the benefit system (effectively unable to access public funds) and the impact this has on child poverty.

Estimating the number of children with restricted access to public funds

Responding to inquiry questions: Approximately how many children in the UK live in households that have NRPF? What are the challenges involved in estimating this accurately? Is it possible to determine how many children who live in households with NRPF are British citizens? How many children in the UK are undocumented or have an insecure immigration status?

In order to estimate the number of children who are excluded from accessing the benefit system due to their immigration or residence status or that of their parents, it is necessary to clarify the different ways that children, or their parents, have restricted access to public funds. There are two primary ways that people are excluded from accessing public funds through their immigration status:

  1. People with leave to remain in the UK with a no recourse to public funds condition attached to it. S.115(9)(b) of the Immigration and Asylum Act 1999 defines them as "persons subject to immigration control" and they are excluded from benefits by s.115(1).
  2. People without leave to remain in the UK (such as overstayers, illegal entrants and most asylum seekers) fall within s.115(9)(a) of the Act and are also then excluded by s.115(1).[1]

If a child’s parents falls into one of these categories, they will be excluded from accessing public funds. In some cases, this includes children born in the UK and have British citizenship but are denied support from birth solely due to their parents' immigration or residence status.

Children can alternatively have restricted access to mainstream benefits because of their residence status. This primarily affects EEA nationals granted pre-settled status under the EU Settlement Scheme. They have been granted unconditional leave to remain by the Home Office (that is leave which has no restriction as to their ability to access public funds) but do not pass the "habitual residence test" (HRT) which is required by DWP to access certain benefits.

The number of EEA nationals being denied access to social security benefits because they do not pass the HRT is a growing concern. FOI data shows that between August 2020 and February 2021 an average of 9,000 UC claims a month by EEA nationals were rejected on the grounds of the HRT.[2] Another FOI revealed that between March and May 2021, 3,700 UC claims by EEA nationals in families containing children were rejected on the grounds of the HRT.[3]

Through CPAG's Early Warning System (EWS), a database of case studies submitted by frontline practitioners working directly with families experiencing problems with the social security system, we have encountered many cases of EEA nationals with pre-settled status who have failed the HRT. We have included examples throughout this submission alongside problems experienced by people with NRPF.

It’s also important to recognise that some people with the right to claim benefits can receive less if their partner has pre-settled status or an NRPF condition. For example, if someone is eligible to claim UC and their partner is not eligible, they will be paid a single person rate but the partner’s income will count against the award. While mixed-eligibility couples and families can receive assistance through social security, it may be at a considerably reduced rate.

The EWS examples below illustrate how households with children are not able to benefit fully from the social security system due to mixed eligibility:

A woman joined her husband in the UK on a spousal visa with an NRPF condition. The husband receives UC for himself and their daughter but no additional amount for his wife. She has recently been diagnosed with a terminal illness but is not eligible to claim PIP because of her immigration status. The family would also not be able to obtain carers allowance.

A woman is on a family reunion visa with recourse to claim benefits. Her ex-husband recently brought their child to the UK and claimed asylum. The women’s son now lives with her but has NRPF. The woman has claimed UC for herself and the child but this is a breach of the child’s NRPF condition and there is no way of removing a child from her UC claim in the same way that someone with a NRPF partner can make a single claim.

As the committee reflects on how to measure the number of children with restricted access to social security, it is important to recognise that access will be restricted in different ways depending on the residence and immigration status of the child and the membership of their household.

Given the different ways that children are excluded from accessing public funds or social security benefits, multiple data sources are needed to estimate the number of children affected. The Home Office will hold administrative data on the number of people with an NRPF condition attached to their leave to remain. It is not clear from the data that is publicly available if they record the presence of dependent children at the time their leave was granted or subsequently. The Home Office is unlikely to hold data on the number of EEA nationals who do not pass the HRT to claim benefits as this is in the jurisdiction of the DWP. After extending access to free school meals to children with NRPF, the Department of Education may be able to provide helpful information on eligibility for FSM among children with NRPF since provision was expanded, but this information is not currently in the public domain.

The scale of poverty among children excluded from accessing public funds

Responding to inquiry questions: What proportion of children with NRPF are living in poverty? How does this compare to children whose families do have access to public funds?

Due to the lack of available data, CPAG are not able to estimate the poverty rate among children excluded from accessing public funds, but we do know the factors that affect child poverty more generally. While having a parent in work reduces the risk of poverty, work is no longer the preventative factor that it once was - three-quarters of children in poverty have a working parent[4] - and 40 per cent of universal credit (UC) recipients are working. [5] It should not be assumed that children with NRPF who have a parent in work are not in poverty, or that they are not missing out on a valuable income top-up via the benefit system that plays an important role in reducing and preventing poverty amongst low income working families.

Poverty is likely to be much deeper among children whose parents have NRPF, particularly if those parents have low or no earned income. Without access to the social security system, families are likely to rely on emergency provisions such as food banks and charitable support. Meanwhile, families with children who are able to access UC benefited from an average payment of £1,070 in May 2021.[6] Not only are families with NRPF unable to access means-tested benefits, they are also unable to access supports that use benefit receipt to determine eligibility, such as free prescriptions, free school meals, healthy start vouchers, and school uniform grants.

Through EWS, we see how families who experience a crisis are unable to access the social security system that is designed to help people at their time of need, and the extreme hardship that results.

A woman with NRPF fled a relationship with her two children. Her ex-partner claimed child benefit while they were together. He continues to receive child benefit and sporadically transfers it, but the woman does not get all of the payments she is due. She cannot claim child benefit herself, due to NRPF. She is destitute.

An EEA national left her partner due to domestic abuse. She applied to the EU Settlement Scheme but has not received a decision; in the meantime, her claim for UC has been refused. She and her child are living on child benefit and support from social services. She is likely to be granted pre-settled status, which would not allow her to access UC. It is likely that the child benefit will be stopped.

An EEA national, who had been working cash in hand for over five years, stopped working when she fell pregnant and later separated from the child’s father. She ended up becoming homeless with her child. Her UC claim was refused because she failed the HRT. After being granted settled status through the EU Settlement Scheme, she made a successful UC claim.

Impact of the pandemic on children with NRPF and the government response

Responding to inquiry questions: What impact has the pandemic had on children with NRPF? Has the lifting of restrictions made any difference? What other financial support from the Government is available for families with NRPF who are facing financial hardship? How effective is this support? How have families with NRPF benefited from the new support that the Government introduced in response to the pandemic, such as the Coronavirus Job Retention Scheme and the COVID Local Support Grant?

There is evidence to suggest that the impact of the pandemic on children excluded from accessing mainstream benefits has been substantial. The number of applications made to the Home Office to have an NRPF condition lifted on the grounds of destitution reached 5,770 (including 1,380 children) in the second quarter of 2020 as the pandemic took hold. This is over 6 times higher than the average amount in 2019/20.[7]

In response to the pandemic, the government introduced the COVID Local Support Grant which allocated funding to local authorities in England to provide direct assistance to vulnerable households with the cost of food, energy and water bills and other associated costs as a result of the COVID-19 pandemic. This was not designated as a public fund and could be used to support those subject to an NRPF condition. However in England the use of these funds for children with NRPF was left to the discretion of councils. In contrast, the Scottish Government allocated £550,000 specifically to support people with NRPF during the pandemic.[8]

While furlough did not exclude people with NRPF, EWS has received multiple cases of families with children with NRPF or EEA nationals who lost their jobs during the pandemic and were refused the social security support they sorely needed. Some had a considerable work history in the UK but did not qualify for contribution-based benefits, some included families with British citizens, some were reliant on foodbanks, and one couple became homeless while their premature baby was in hospital.

A Bangladeshi national has been working in the UK for over 20 years but was furloughed and then made redundant because of Covid-19. He has NRPF and he is reliant on foodbanks to feed his two children, as he is not entitled to any other support.

A Spanish lone parent with a baby, born in June 2020, has lived in the UK for 3 years and has pre-settled status. She was working full time until March 2020, when her workplace was shut due to Covid-19. She was supported by her partner until September when he left the family. Her UC claim has been refused three times due to failing the HRT.

An EEA national lives with his non-EEA partner and two children including a new born baby. He is self-employed and has pre-settled status, his work is well-paid but he is struggling to find work due to lockdown. The DWP refused the claim is and he is awaiting an appeal. In the meantime they are dependent on friends and family and support from foodbanks.

An EEA national couple came to the UK in early 2020 and worked cash in hand for 3.5 weeks. They lost work due to Covid-19. The wife gave birth prematurely during this time and the baby is in hospital. They are in living in homelessness accommodation.

A British man has a baby with his wife who has NRPF. The man's job stopped when his firm closed down due to Covid-19. His wife is on maternity leave and has no income. The man claimed UC but is unable to access an advance payment until HRT decision has been made in relation to his wife, even though he claimed as an individual. The delay has been compounded by Covid-19 affecting DWP capacity.

Impact of FSM on children with NRPF

Responding to inquiry questions: The Government has extended eligibility for free school meals to some categories of children with NRPF on a temporary basis. What has been the impact of this policy?

Given that some families excluded from the social security system have no alternative sources of income, the availability of free school meals to children with NRPF during the pandemic guaranteed that they were at least able to access a regular daily meal.

Research from University College London shows the impact that excluding low income families from FSM has on the health and learning of children.[9] It includes first-hand accounts from children with NRPF on their experience of going hungry at school.

'[…] I was so hungry […] it was like I got stabbed with a knife and it's still there.' (Emmanuel, age 14, inner London)

'When I'm hungry I just can't concentrate, it's really, really hard for me to do that…so I just need to make my mind up and know that I will eat after five hours, seven hours when I get home [from school].' (Amara, age 15, inner London)

Research by Project 17 also shows that excluding children with no recourse to public funds can leave them feeling hungry and socially isolated.

‘I don’t get free school meals. My mum has to pay for my meals but sometimes I don’t eat lunch because like she needs to get money. Sometimes my belly will just hurt.’ (Jade, age 12)[10]

As part of CPAG’s research with children and families during the pandemic, parents whose children have been receiving FSMs have said how much they value that provision. Parents have referred to FSMs as making a “huge difference” to family life.[11]

The benefits of FSM provision are widely recognised and including:[12]

Many children with no recourse to public funds live in deep, long-term poverty and this has significant detrimental effects on their short and longer-term outcomes. CPAG estimates that a permanent expansion of FSM eligibility to families with NRPF would cost £10 million a year.[13] Returning to the pre-pandemic norm where children with NRPF are excluded from accessing FSM will not only affect their health, but also their ability to participate in school after many months of home learning.

Pre-pandemic support package for children with NRPF, impact and capacity

What role do other bodies, such as local authorities and third sector organisations, play in supporting children with NRPF? What impact has the pandemic had on these organisations’ capacity to support children with NRPF?

The only formal way that children in families subject to NRPF can receive support is via statutory duties applied to social services. Through Section 17 of the Children Act 1989 local authorities have a duty to alleviate destitution and prevent homelessness among families with children who are denied access to mainstream benefits. An equivalent legal duty applies in Wales, Scotland and Northern Ireland.

While these duties are vital to support children in extreme need who are excluded from accessing mainstream benefits, families receiving Section 17 support often continue to live in severe poverty. In addition, councils are not resourced to meet these duties. Central government does not fund local authorities to provide Section 17 support so costs are fully met through council budgets.

The NRPF network found that 66 local authorities supported 2,450 households at an annual cost of £44 million in 2019/20.[14] The average cost of providing accommodation and financial support to a household with children was £15,592 a year. Pre-pandemic, central government cuts to local government funding led to a 17 per cent fall in councils’ spending on local public services between 2009/10 and 2019/20.[15]

In addition to statutory duties, Social Work in Scotland have the power to make discretionary payments to families with NRPF. Before the pandemic, this was not a well utilised option but the Scottish Government with the Convention of Scottish Local Authorities circulated guidance to encourage local authorities to make use of these powers.

Local government can also support certain families in need through discretionary payments. While local welfare assistance funds in England, Scotland and Northern Ireland (though not in Wales) are public funds and therefore not accessible for those with NRPF, they could be used to support families with pre-settled status.

In practice, as we see through EWS, the support provided by local authorities, either in a statutory or discretionary capacity, is limited and unreliable.

A Brazilian Romanian national was granted pre-settled status in June 2019. She has a young child and made an application for universal credit (UC) in January 2021 after fleeing an abusive relationship. The application was rejected on the grounds of her not passing the HRT. She has instead been supported through social care services under the section 17 duty. This support is due to expire at the end of May 2021.

A woman came to the UK 15 years ago on a student visa and has overstayed. She is now trying to separate from an abusive partner, who has similar immigration status. She is working and has children who were born in the UK. Her immigration status precludes her from entitlement to any benefits. Social services have refused to help on the basis that she is working and should return to her country of origin.

An EEA national with two small children has pre-settled status but no other right to reside that will entitle her to UC. She was incorrectly refused a Scottish Welfare Fund crisis grant on the basis that she is a person subject to immigration control. She may be able to claim child benefit and council tax reduction if she signs on at the Jobcentre but will not be entitled to UC, best start grant or the Scottish child payment.

Some voluntary and community sector organisations and charities provide advocacy support and practical assistance to families denied access to mainstream benefits. This support can be a lifeline for people unable to access statutory support. However, as there is no designated public funding for charities to provide this assistance, provision is limited, acting largely as a stop gap.

A Nigerian woman was trafficked into prostitution, and has now escaped and is pregnant. The Home Office have referred her through the National Referral Mechanism for possible leave to remain due to being trafficked, but at the time of writing is awaiting a decision. She currently has NRPF and is being housed and supported the Salvation Army. She has no income of her own.

Lifting NRPF conditions

In response to inquiry questions: People with leave to remain on family or human rights grounds can apply to have the NRPF condition lifted in some circumstances. How effective has this measure been at preventing families from falling into serious hardship?

The option for parents with an NPRF condition attached to their leave to remain to apply to the Home Office to have their NRPF condition removed is essential to alleviate child destitution. This process has allowed almost 13,000 destitute people (including children) to access public funds since the onset of the pandemic.[16] However, we are extremely concerned that the acceptance rate for applications to have an NRPF condition lifted fell sharply to just 69% in the first half of 2021 compared to an average of 80% in 2019 and 2020.

It’s important to note that this option is not available to people with pre-settled status who fail the HRT. There is no mechanism for these families to have their habitual residence status waived on human rights grounds if they are destitute. This means they cannot access the destitute domestic violence concession, which is available to people with NRPF if their relationship breaks down due to domestic violence and they are in need of support. Cases in EWS demonstrate that this is leaving survivors of domestic violence destitute.

A Romanian woman was married to a non-EEA national and they moved to the UK together in 2016. The woman last worked in 2018 when she went on maternity leave and has been looking after her young children since then. She has separated from her husband because of domestic violence and he is unemployed. She was initially awarded UC on pre-settled status but this decision was revised. She now has no access to benefits and no other right to reside.

A woman with pre-settled status has been refused UC and she is a victim of domestic abuse. If she had been a non-EEA resident with a right to remain visa she would have been able to apply for the destitute due to domestic violence concession and have the NRPF condition removed from her visa enabling her to claim benefits.

A recent case in the Court of Justice of the European Union C-709/20 CG v Department for Northern Ireland, that Court held that it was unlawful to refuse a claim for universal credit to a woman with children without first ascertaining that doing so would not breach her fundamental rights (including the rights of her children and the right to live in dignity- usually held to mean the right to adequate food, clothing and shelter).[17]

The Court considered that the impact of refusing benefits to an individual on grounds of residence status needed to be checked prior to doing so. The requirement seems rational and humane to prevent destitution. However, the HRT rules as currently written do not allow for any such check to take place. At minimum they should be amended so that the requirement for habitual residence can be waived in circumstances where not to do so would create destitution. That would effectively put an EEA national with pre-settled status in the same position as a person with NRPF.

A way forward

Given the evidence above, it is hard to justify the ongoing use of NRPF. The NRPF condition prevents families with children from accessing a social security system that is intended to help people in need. The cost of abolishing the NRPF condition is likely to be less than many people envisage; many people subject to NRPF would not qualify for such benefits as their incomes would be too high; and the use of NRPF prevents the government providing targeted support to a small group of children and families likely to be living in deep poverty. Abolishing NRPF would reduce extreme poverty among children while also helping to satisfy the government’s human rights obligations, removing the need for government to establish mechanisms to uphold these obligations towards families with NRPF.

In the short term, the government can do more to protect children affected by NRPF restrictions from poverty by:

We also want to see the HRT amended so those with pre-settled status have a sufficient right of residence. At a minimum, the law should be amended so the HRT cannot prevent someone from accessing benefits that are needed to avoid destitution. As we have shown, without addressing this issue, children of EEA nationals are being subjected to extreme hardship and, in some cases, forcing parents to choose between living in an abusive environment or destitution.

 

September 2021

 

 


[1] We do not discuss the categories under s.115(9)(c)-(d) as they apply to much smaller groups.

[2] Reference number: FOI2021/17385

[3] Reference number: FOI2021/69427

[4] Department for Work and Pensions, Households below average income: for financial years ending 1995 to 2020, March 2021

[5] Department for Work and Pensions, People on Universal Credit via Stat Xplore, data is for July 2021

[6] Department for Work and Pensions, Households on Universal Credit via Stat Xplore, data is for May 2021

[7] Home Office, Immigration and protection data: Q2 2021, August 2021

[8] Scottish Government, Funding to prevent destitution during Covid-19, November 2020

[9] Child Poverty Action Group, Children Growing Up In Poverty Endure Hunger and Shame, April 2019

[10] Project 17, Seen not heard, February 2019

[11] CPAG and Covid Realties, Fixing Lunch, August 2021

[12] CPAG, Expanding eligibility for free school meals in England, December 2020

[13]Authors calculations. The figure assumes that the eligibility rate among children affected by NRPF is the same as children with recourse to public funds.

[14] NRPF Network, Councils achieve cost savings despite rising referrals and challenges obtaining immigration outcomes, September 2020

[15] Institute for Fiscal Studies, English local government funding: trends and challenges in 2019 and beyond, November 2019

[16] See note 7

[17] Judgment of the Court (Grand Chamber) of 15 July 2021. CG v The Department for Communities in Northern Ireland

[18] Authors calculations. The figure assumes that the eligibility rate among children affected by NRPF is the same as children with recourse to public funds.

[19] See note 18

[20] See note 18