A Law Centre (NI) Response - February 2010

Introduction

In this response we first set out some general thoughts about the proposals and then respond to specific questions where appropriate.

Asylum Support and Destitution

The consultation document notes that the overall amount spent on the asylum support system has halved over the last six years.   At the same time, the current system of NASS support has proved to be inadequate at keeping applicants and their families out of destitution.¹ Against this backdrop, it is extremely disappointing that a consultation on asylum support provides no scope for commenting on the existing asylum support or on the current rates of NASS payments. It is worrying that further cuts to the support system are now being sought.²

NASS rates were cut from £42.16 to £35.13 a week for adult single asylum seekers in October 2009.³ This equates to just 55% of Income Support, which is far short of the 70% rate that was initially set when NASS was established in 1999.

A person who has no means to meet her/his “essential living needs” is destitute.⁴ Evidence shows that many asylum seekers in receipt of asylum support meet this definition, including those who are actually in receipt of NASS support. Asylum seekers may not be able to buy adequate winter clothing or food for special dietary needs. Pregnant asylum seekers report particular difficulties in maintaining good health throughout pregnancy and the maternity grant of £300 has proved to be insufficient. People may struggle to keep in touch with their lawyers and may not be able to travel to attend medical appointments or UKBA interviews.⁵

Asylum seekers in receipt of section 4 support are at greater risk of destitution than those on full NASS support as the inflexible voucher system cannot meet all essential needs. Vouchers cannot always be used to buy medicines, sanitary items, stationery and stamps, school uniform, baby milk formula or food for special dietary needs.⁶ Vouchers do not allow the individual to use public transport or make telephone calls.⁷ In Northern Ireland, the voucher system has largely been replaced by the “Azure” card system. Although the card offers a little more flexibility as it is accepted by more outlets, recipients can still not use local shops, charity shops or use transport or telephones. In addition, as the card’s balance is ‘wiped’ at the end of each week, applicants cannot save up for more expensive items such as winter clothing. In any event, the “Azure” card is still a form of ‘cashless’ support, which has been described as ‘inhumane and ineffective’.⁸

Most severely at risk of destitution, however, are refused asylum seekers without support. There are numerous reasons as to why refused asylum seekers may be in this position: they may not be eligible, they may be deterred from applying by the complex application forms or it may be due to UKBA administrative error⁹ or delay.¹⁰ Exact numbers are unknown although it is estimated that there are three hundred thousand refused asylum seekers living in the UK.¹¹

Destitution can affect physical health and mental health (with extreme anxiety, depression and post traumatic stress being most commonly cited conditions) and may place an unbearable stress on relationships between family and friends as ‘good will’ support cannot always be sustained. Destitution may make asylum seekers particularly vulnerable to exploitation and criminality and may also negatively impact on community cohesion and social exclusion.¹²

Against this backdrop of high levels of destitution among asylum seekers, UKBA’s stated commitment to ensure that the asylum support system provides an ‘appropriate’ level of support rings hollow.¹³  Accordingly, we urge UKBA to restore a NASS rate that is a minimum of 70% of Income Support; in any event, NASS should be at least £45 per week for single adults.¹⁴

Work Permission

Arguably one of the most advantageous and cost effective way of supporting asylum seekers would be by granting work permission.  This would bring innumerable benefits for individuals and to the public purse. Evidence does not support the UKBA’s contention that granting work permission would act as a “pull factor” for asylum seekers.’¹⁵ The Court of Appeal¹⁶ the Joint Committee on Human Right¹⁷ and the Independent Asylum Commission¹⁸ have criticised the policy of refusing work permission to asylum seekers.  There is a strong argument for granting asylum seekers work permission if their asylum application has not been finally determined within six months and we urge UKBA to review its policy on this as a matter of priority.¹⁹

Legal Representatives

The consultation document outlines UKBA’s intention to get ‘tougher with legal representatives who make unmeritorious further submissions on behalf of their clients’.²⁰ It is not clear what is intended here. Immigration legal advisers are regulated by OISC, which has powers to take action against unscrupulous representatives.  If the intention is to increase regulation of the advice sector this should be a matter for consideration by the OISC. Any proposed change to the regulatory system should be clearly set out.

Burden on Social Services & Charities

The NASS support system does not provide support to all asylum applicants. Social Services have responsibility  for unaccompanied asylum seeking children and adult asylum seekers who have needs for ‘care and attention’, which arise not ‘solely’ as a result of their destitution but because they are disabled, ill, elderly, etc.²¹  A range of charitable organisations also provide assistance to those in need.

Restricting NASS support may place more demands on Social Services. There is also likely to be an impact on refugee communities and local charities, which may be compelled to intervene and assist individuals barred from the revised support system. The Impact Assessment document does not attempt to quantify the likely costs borne to Social Services and charities as a result of these proposals. Consequently this omission distorts the net benefit figures.

Q.1 Some asylum seekers frustrate the system by not making their claim at the earliest possible stage. Should we reserve the right not to support them in some circumstances?

This proposal revives section 55 of the Nationality, Immigration and Asylum Act 2002, which became the subject of intense scrutiny in the Limbuela case.²²  In Limbuela, the House of Lords held that the high threshold for ECHR Article 3 may be crossed if ‘a late applicant with no means and no alternative sources of support, unable to support himself, is, by the deliberate action of the state, denied shelter, food or the most basic necessities of life’.²³ As such, the Lords queried the lawfulness of the proposal. Section 55 has also been widely criticised by community groups, charities and church groups, which find themselves ‘bridging the gap’ despite lack of funding to do so.²⁴

The consultation document asserts that this provision is necessary to ‘tackle the issue of people frustrating the system’ and seems to implicitly link ‘late’ asylum applicants with fraudulent claims.²⁵ Yet asylum data shows that the majority of asylum applicants do not lodge their applications immediately at port on their arrival but instead make in-country applications at a later point.²⁶ There is no evidence to suggest that in-country applicants are any less genuine than port applicants, nor is there any evidence that section 55 has ever been successful at differentiating between asylum seekers and economic migrants.²⁷ There are many different factors that explain why a claim is not always made at the earliest possible stage (normally deemed to be three days). The case study below illustrates one such example.

Case study:  Fadzai is a Zimbabwean national who arrived in UK to join her husband. Her husband assured her that his solicitor was processing an application on her behalf and Fadzai resided in the UK for over two years, under the (erroneous) assumption that UKBA was dealing with her case. Two years later, her husband left her and it then emerged that no application of any kind had ever been lodged by the “legal representative”.  Fadzai claimed asylum and applied for asylum support. She was granted Refugee Status approximately 12 months later, which was about three years after she had arrived in the UK.

We therefore strongly oppose the proposal to reserve the right not to support asylum seekers who do not claim asylum at the earliest opportunity. It is manifestly unfair to prevent an applicant from receiving support on the basis that they did not apply at the earliest possible stage. We are disappointed that the UK government is intent on pursuing this policy, seemingly deaf to the criticism levelled by the highest judicial authority in the UK and others.

Q.2 Do you agree with our proposals to repeal those parts of legislation which we do not intend to use [...]?

Yes. In general we support the notion that unused powers should be removed from the statute book. In particular, we welcome the proposal to repeal Section 9 and 10 of the Asylum and Immigration (Treatment of Claimants, etc.) 2004 Act.

Q.3 Should we support any failed asylum seekers who have been found to have no protection need by the independent appeals system?

Yes, there are many circumstances whereby support should be provided to failed asylum seekers, including all those listed at 2 (a) – (f).

Circumstance (d) states ‘where there is another issue outstanding which would require support to be provided to prevent a breach of a person’s human rights’. This should be worded more broadly to correspond to case law that confirms that human rights law requires the state  to provide support not just where there is a breach of human rights but also where there is ‘imminent prospect of serious suffering’.²⁸

Further, destitute refused asylum seekers who have lodged a fresh claim should also be supported while their representations are being considered. Under current arrangements, the submission of further representations does not automatically render a person entitled to asylum support. Case law, however, has confirmed that this should normally be the correct approach, as removing support, only to reinstate it under other provisions, would be a waste of resources.²⁹ Unfortunately, the proposal not to support fresh claim applicants appears to be consistent with the new asylum arrangements announced on 13 October 2009 whereby a decision must be made to accept new submissions as a fresh claim application before support can be granted.  We urge UKBA to revise this policy as it is likely to result in further destitution and thereby place a significant burden on charitable groups.

Q.4 Do you agree that we should be able to set a fixed time limit for support for those supported on the basis that they are taking steps to leave, with no right of appeal?

We do not support a fixed time limit for support for those who are taking steps to leave the UK. There are numerous reasons why the process may take longer than the proposed 3 months. The reasons include practical barriers (acknowledged in the consultation³⁰) but also include compassionate reasons, such as applicants being in receipt of a course of fixed-term medical treatment, or dependent children who are due to complete a school year. It is essential that the system retains the necessary flexibility in order to deal humanely with these cases.

It is unclear whether support will only be granted in three month blocks or whether it will be possible for support to be granted for longer periods. Requiring all applicants to re-apply for support every three months could have a substantial administrative impact especially where there are long-term barriers to return e.g. countries to which UKBA has suspended removals on safety grounds, as well as potentially leading to breaks in support. Will such individuals be obliged to return to interim accommodation while their claim for further support is being processed? If so, the administrative cost of these accommodation transfers would be substantial and unnecessary.

We also oppose the proposal to remove the right of appeal to the Asylum Support Tribunal for applicants whose support is terminated after three months.³¹ A recent CAB report found that the quality of decision-making within the asylum support process is poor.³² This highlights the need for continued access to an independent adjudicator.³³ Until there is a substantial improvement in the quality of decision-making, it follows that UKBA is not justified in limiting appeal rights.

Q.5 Do you agree that the way in which support is provided to asylum seekers should be different than the way support is provided to those who have been found to have no protection need?

The Joint Committee on Human Right’s review of the treatment of asylum seekers recommended the introduction of a ‘coherent, unified, simplified and accessible system of support for asylum seekers, from arrival until voluntary departure or compulsory departure’.³⁴ Indeed, the Committee saw ‘no justification for providing varying services of support’.³⁵

It is unhelpful to draw distinctions between asylum seekers and refused asylum seekers by having different support systems in place. A single system whereby all asylum seekers (including pending/refused asylum seekers) receive the same support could bring substantial resource savings by eliminating administration and review costs.

In addition, a single system could encourage asylum seekers to maintain contact with the UKBA rather than the current system which provides little incentive to asylum seekers to refrain from going ‘underground’ if their applications are refused.³⁶ Furthermore, the proposal to introduce additional distinctions is hardly in keeping with the simplification ethos currently being pursued with the Immigration Simplification Bill 2009.

Q.6 Do you think that closer working with both the voluntary sector and local authorities will:

a) help applicants understand the options available to them at each stage of the process?

b) encourage those who are found to have no protection need to accept their position and return voluntarily?

While the Law Centre recognizes the importance of dialogue and constructive engagement between the sectors, it is essential that the voluntary sector retains its independence from the UKBA. Voluntary organisations often play an invaluable role throughout the asylum process, but it is, of course, unlawful for such organisations to provide immigration advice unless they have the necessary accreditation with the Office for the Immigration Services Commissioner. We have no basis for believing that immigration advisers, including those within the voluntary sector, do not provide the ‘best possible, honest and realistic appraisal of the potential outcomes for the application and to manage their expectations’.³⁷

Q.7 Do you agree that case owners should be able to tailor accommodation provisions for those who have been found to have no protection need and bring families who purposefully frustrate the system into full board accommodation (where this could assist with removal or return?)

This proposal is to introduce full board accommodation for refused asylum seekers.  ‘accommodation centres’ were originally envisaged in the 2002 Act. However, this proposal was ultimately abandoned by the Immigration Minister Tony McNulty on 14 June 2005. Media reports indicate that government’s change in policy was due to the falling number of asylum applications and to a shift in focus to removal.³⁸  It is of note that the number of asylum applications in 2008 is broadly similar to the 2005 data.³⁹

However, this new proposal does not appear to be related to asylum figures, but instead appears to be envisaged as a form of punishment of families who ‘purposefully frustrate’ the system. There is currently no evidence to suggest that ‘increased monitoring’ of families encourages voluntary returns.⁴⁰

The proposal of full board accommodation echoes the Irish asylum support system of Direct Provision, which has operated since 2000. The system has been fiercely criticised on a number of grounds including the indefinite nature of Direct Provision accommodation, overcrowding, lack of privacy and lack of access to specialised and support services. The adverse impact on children’s physical and mental health has been a particular issue of concern.⁴¹  It has been argued that Direct Provision is not compatible with the right to adequate housing and interrelated rights to food and health outlined in the international Bill of Rights.⁴² In short, Direct Provision is not a model that the UK should consider replicating.

Section 55 of the Borders, Citizenship and Immigration Act 2009 which came into force on November 2nd 2009, requires UKBA to safeguard and promote the welfare of children when carrying out its existing functions.  UKBA is required to abide by the principle that ‘every child matters.’⁴³ The proposal to house refused families in accommodation centres is firmly at odds with the duty to promote the welfare of the child.

Q.8 Do you agree that the offences to tackle support fraud should apply to all types of support?

In this proposal, the UKBA seeks to extend investigatory powers so as to ensure that fraud offences apply to all forms of asylum support. Under current provisions, some offences do not apply to individuals in receipt of section 4 support. The relevant offences it seeks to extend are section 105 (false representations), section 106 (dishonest representations) and section 107 (delay or obstruction). We do not agree that the additional asylum offences should be introduced for the following reasons.

The current application process for asylum support is complex. The Section 4 application is 16 pages of technical language and can require applicants to produce additional supporting documentation. The Law Centre is aware of cases whereby failure to complete the forms correctly has led applicants being warned of having committed fraud. It therefore follows that a simplified application process coupled with wider access to quality advice may reduce the number of apparent fraud instances.

We are particularly concerned about the application of section 106 (dishonest representations). This provision is already widely framed and includes a failure to notify a change of circumstances (s.1(c)). Given the nature of Section 4 support, whereby applicants do not have cash to use telephones or public transport, it may be extremely difficult for some applicants, especially those who do not speak English, to satisfy these requirements.

As a general point, the trend of ‘criminalising’ the asylum system has been criticised by the Council of Europe’s Commissioner for Human Rights, Thomas Hammarberg as causing increased marginalisation and stigmatisation and thereby detrimental to community relations.⁴⁴

Conclusion

We are particularly alarmed by the tone of this consultation and the punitive measures that are being proposed. Unfortunately, although this consultation is framed as an ‘asylum support’ document, the effect of its proposals will actually result fewer asylum seekers being eligible for support. We fear that UKBA has not given due consideration of the spectre of destitution and the long term negative effects that it can have on individuals, dependents, charities and the wider society.

Accordingly, we can support little of the proposals outlined in this consultation.