In England, Nationality, Immigration and Asylum Act 2002 Sch 3 para 1(1), as amended by Immigration Act 2016, precludes the following classes of adults from being eligible for accommodation under Children Act 1989 s17 and 23C, Localism Act 2011 s1:
a)Persons, or their dependents, with refugee status that was obtained from an EEA member state (Sch 3 para 4).
b)EEA nationals (Sch 3 para 5).
c)Persons, and their dependants, who require leave to remain and do not have it (Sch 3 para 7B).
It follows therefore that while an authority may accommodate a child who is in the UK unlawfully they may not accommodate their parents. The sole exception, and only for those classes set out in paragraphs a) and b) above, is where the failure to do so would lead to a breach of their human rights or EU treaty rights: Sch 3 para 3. Those adults who fall within the classes set out at paragraphs c) and d) above may not be provided with support under Children Act 1989 s17 or Localism Act 2011 s1 if accommodation and support is being, or will be, provided pursuant to regulations made under Nationality, Immigration and Asylum Act 2002 Sch 3 para 10A. Nor may authorities provide accommodation to asylum-seekers and their families while their application for asylum is determined or to failed-asylum seekers and their families who face a genuine obstacle to leaving the UK: Immigration and Asylum Act 1999 s122(5).
Former relevant children are also precluded from obtaining accommodation under Children Act 1989 s23C: Nationality, Immigration and Asylum Act 2002 Sch 3 para 1A. They must instead be provided with accommodation pursuant to regulations made under Nationality, Immigration and Asylum Act 2002 Sch 3 para 10B.
In Wales, and what used to be the position in England, Nationality, Immigration and Asylum Act 2002 Sch 3 para1(1) precludes the following classes of adults from being eligible for accommodation under Social Services and Well-being (Wales) Act 2014 s37 and Local Government Act 2000 s2:
a)Persons, or their dependants, with refugee status that was obtained from an EEA member state (Sch 3 para 4).
b)EEA nationals (Sch 3 para 5).
c)Failed asylum seekers (without children) who are not complying with removal directions issued in respect of him (Sch 3 para 6).
d)Persons, other than asylum seekers, who are present in the UK unlawfully (Sch 3 para 7).
e)Failed asylum seekers living with children under the age of 18 who have been provided with a certificate by the Secretary of State that he is of the opinion that the failed asylum seeker has failed to leave the UK voluntarily (Sch 3 para 7A).
All of the above become eligible if the provision of accommodation under Social Services and Well-being (Wales) Act 2014 s37 is needed to prevent the breach of a person’s rights under Human Rights Act 1998 or their European Community treaty rights: Sch 3 para 3. Unlike in England, there is no equivalent support under paragraph 10A or paragraph 10B. Asylum seekers, including failed asylum seekers, with dependent children at the date of their application for asylum are also excluded from assistance under Social Services and Well-being (Wales) Act 2014 s37 and Local Government Act 2000 s2: Immigration and Asylum Act 1999 s122(5).