Executive summary

This is a discussion paper looking at how to deal with the needs of those migrant workers who fall through the gaps in welfare and financial provision after losing temporary employment or other substantial change in circumstances.  The need for a fund is threefold.  First, an emergency fund would be an important vehicle for dealing with a crisis such as the one that occurred in June 2009 within the Roma Community.  The worldwide negative media coverage reflected very poorly on Northern Ireland.  One newspaper report at the time estimated the negative coverage caused a loss of £50 million in financial investment.

Secondly, the failure to provide welfare support often leads to greater displacement costs with those left destitute ending up needing emergency hospital treatment, or becoming involved in the criminal justice system at a considerable financial cost.

Thirdly, Northern Ireland (like others) is measured by how society treats the most

vulnerable.  The fund would be an innovative and visible way of combating the negative image of Northern Ireland.   The current reality is that incidents in Belfast gain far greater coverage than a similar occurrence in other cities simply due to our (unfounded) reputation.

The paper sets out some of the gaps in provision for meeting immediate needs of migrant workers and suggests:

The paper also outlines how such an initiative might be financed and managed and addresses legal issues arising from the approach being suggested.

Background

A fund to address gaps in welfare provision for migrant workers, and a longer term audit to deal with such gaps was initially suggested by the Law Centre in June 2009.  This was done in a paper presented to the Department for Employment and Learning’s migrant worker best practice thematic sub-group.  Shortly after the paper was written a number of Roma families were forced out of their accommodation in Belfast attracting adverse domestic and international media coverage.

Over the next few months a number of bi-lateral meetings were held between relevant government departments.  In addition, Belfast City Council convened a seminar to examine lessons to be learned in the aftermath of the Roma incident (a report is due shortly).  The Health and Social Care Board also organised a conference examining migrant worker’s access to health and social services support and produced a report from the conference.

Against this backdrop, the Community Foundation convened a round table meeting in January 2010 of key government departments and other important stakeholders including the Housing Executive, Belfast City Council and Law Centre (NI) to move forward the issue of developing a fund and the audit of gaps in provision.

The meeting conducted on the ‘Chatham House’ rule basis agreed that an options paper should be provided to look to how a fund will work in practice including addressing any legal issues that may arise.  The meeting also agreed that the OFMDFM’s Racial Equality Forum sub-group on immigration could be a useful vehicle to progress these issues.

Since that meeting the All Party Assembly group on Minority Ethnic issues has debated the issue and is supportive of the creation of an emergency fund.  The immigration sub-group of the Racial Equality forum is now also up and running having held its first three meetings, agreed membership, terms of reference and immediate priorities to include working on addressing the gaps in provision for migrant workers and others.  The sub-group includes membership from the four main government departments involved in the issue (OFMDFM, DHSSPS, DEL and DSD) alongside UKBA, NIHE, the Health and Social Care Board, Northern Ireland Human Rights Commission and key voluntary sector organisations working in the field of migration and immigration.  It is convened by OFMDFM and chaired by the Law Centre.

Significant tension has also re-emerged between the Roma community and local communities.  In order to try and defuse growing concerns the Lower Ormeau Road Action Group convened a meeting with OFMDFM support in June 2010.  The meeting was for both the local community and Roma people to examine issues and how they could be tackled.  The meeting included input from local PSNI, education and library board, health and social care trust and voluntary sector organisations including the Law Centre and Housing Rights Service.  The meeting was helpful but, it is clear that there remains a real risk of a recurrence of a significant incident with effectively similar ramifications for both the Roma community and the reputation of Northern Ireland that happened in the summer of 2009.

The need for the Fund

The plight of migrant workers when losing employment first came to prominence as a result of the tragic case of Oksana Sukhanova a young Ukrainian woman on a work permit who lost her job, tied accommodation and legal status in December 2004.  As a result, she had no entitlement to housing or social security support and after ten days in a local hotel she ended up sleeping rough, contracting frostbite and having had to have her legs amputated from below the knee.  There was a significant public outcry.  The cause of this tragedy was a design rather than systems failure.  If Oksana Sukhanova had sought help from the Northern Ireland Housing Executive or the Social Security Agency her needs could not have been effectively and lawfully been met by either organisation.  Social services could have offered some very limited emergency support.

Over five years later we cannot be confident a similar tragedy could not occur.  The difficulties statutory agencies faced in dealing with the Roma crisis last year was another illustrative case in point.  While Ministers made very positive and welcome statements of support, the agencies they manage had little flexibility to offer practical and financial help.  From the outset, it was clear that around 90 per cent of those made homeless wished to return to Romania.  Those who wished to stay, however, could not be offered sufficient bridging support to meet their needs and they also left as well. In the end powers under the Withholding and Withdrawal of Support (Travel Assistance and Temporary Accommodation) Regulations 2002 were used to allow the Roma families and individuals to travel back to Romania.

A further more recent example is Eriks Prenclavs, an A8 national who lost his sight in a work place accident.  As Eriks was not registered under the Home Office Worker Registration Scheme he has been left without support or work while he pursues financial compensation and seeks rehabilitation.

Since the Sukhanova tragedy information provision has improved.  In particular, the development of a migrant worker action plan led by DEL and signed off by the Northern Ireland Executive in 2009 was a significant step forward.  Nonetheless, the rights and entitlements available to migrant workers are so complex that service providers understanding of these rights in their differing circumstances remains patchy to say the least.  Those rights can depend on whether the migrant worker is from a long standing EU country, the A8 Accession States, the more recent A2 countries or from elsewhere and here under the new Home Office points scheme.  For those not from the long-standing EU the loss of employment can have severe consequences on the right to welfare support.  The working group convened by DEL to produce the action plan identified and acknowledged the need to address the lack of access to welfare support for migrant workers who temporarily or otherwise lose work.  A barrier to bringing forward concrete proposals was the sense that access to welfare state services for Accession State nationals and others was driven by a broader UK wide political imperative namely to discourage migrants coming to the UK to seek social security and other support.  In effect, this driver is reflected in legislative provision on access to services and income.  This applies in spite of many of the welfare provisions being transferred rather than reserved matters.

There has been no evidence of migrant workers arriving solely to access the welfare state.  In fact, the reverse appears to hold true with Home Office registered A8 nationals often failing to claim entitlement to tax credits and other benefits.  Moreover, the research evidence from the Institute for Public Policy Research and others is that migrant workers make a net positive financial contribution to the economy through payment of taxes and national insurance contributions.

Current position

The numbers arriving in Northern Ireland from the A8 countries (Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovak Republic and Slovenia) and A2 countries (Bulgaria and Romania) is declining.  The figures on numbers seeking to register in 2009 and 2010 to date were the lowest since the A8 and A2 countries joined the European Union in May 2004 and January 2007 respectively.  No doubt the economic downturn in the United Kingdom and elsewhere has played a substantial role in the changing pattern of economic migration.  Nonetheless, the economic downturn has still left many migrant workers vulnerable (both the relatively settled and the newly arrived).

There are a variety of circumstances in which migrant workers lose employment and are particularly vulnerable by not having access to social security and other types of support.  These include:

The last of these groups is most problematic in that the notion of undocumented workers as people who arrive unlawfully and work illegally does not form an accurate picture of the range of circumstances that can apply to migrant workers.  For example, a Polish worker who arrives in Northern Ireland finds seasonal work and registers that work through the Home Office Workers Registration Scheme has a right to reside and is entitled to access in-work social security benefits including housing benefit and also public housing (though the reality is that most migrant workers move into the private rented sector).  If the seasonal work ends before twelve months are up and he or she does not find alternative employment within 30 days then the right to reside status is lost.

In practice, the Polish national is not asked to leave the UK but, he or she cannot access out of work benefits and is no longer entitled to access public housing.  In effect, a person can move very quickly from having a right to reside to losing this status.  As a result, there should not be a segmentation of emergency support for migrant workers based on why lawful status has been lost or whether a person had the right to work in the first place.  Any such attempt to do this will create the pitfall statutory services face i.e. the struggle to comprehend who is entitled to support and on what legal basis.

The list outlined above is not exhaustive but covers typical circumstances affecting A8, A2 and migrant workers from elsewhere.  Three typical Law Centre case studies are set out below:

She challenged this decision unsuccessfully and Women’s Aid provided her with accommodation free of charge and social services provided some financial support.  In early 2008 she found part time work and the Law Centre brokered an agreement with social services to pay for childcare support on a discretionary basis while a tax credits claim was made and the new employment registered.  After almost two years in Women’s Aid she was able to obtain independent accommodation of her own.

The case studies illustrate the role the voluntary sector has often been pushed into playing.  The Law Centre has a number of similar examples covering Women’s Aid, the Simon Community and other voluntary sector housing providers.  Depending on where a person lives, St Vincent de Paul, the Salvation Army, other church groups, and other organisations have all provided some level of assistance.  Social services have also played a role in providing emergency and ongoing financial support.  Other migrant workers have not been able to access support and have ended up sleeping on the streets.  Access to financial and other support is piecemeal and inconsistent.  Many migrant workers losing a job have little or no savings so even a temporary interruption in employment can have devastating consequences.

From May 2011 A8 nationals will be able to access social security, housing and other support on the same basis as long-standing members of the European Union.  This does not allow A8 nationals to simply arrive and claim means-tested social security benefits.  In practice, an A8 national will still have to show he or she is habitually resident in Northern Ireland and has exercised freedom of movement as a worker by having been employed sufficiently long in both the United Kingdom and at least one other member state.  There will, however, no longer be a requirement to register all employment for a continuous period of 12 months to normally qualify for means-tested benefits when out of work.  A similar easement for A2 nationals is unlikely to come into effect until January 2014.

In practice, the issue of migrant workers and others falling through cracks in the welfare system altogether is not about to go away.

Preliminary work has been done to examine the cost of support in cash and in kind to support migrant workers and others who are unable to access statutory financial support.  One hostel provided in Belfast provided £33,000 in kind support to 342 migrants in 2009 covering food, clothes, transport, sleeping bags and translation services.  A church organisation provided £29,000 in financial support and reported significant unmet need.  A refugee support group spends £4,000 a year and assists fifteen people a month while turning away more people than it can assist.  The local Red Cross provides around £9000 a year plus in-kind support.  Other large providers also make a substantial contribution including St Vincent de Paul, the Simon Community and Women’s Aid.

There are also broader unexplored consequences of a lack of access to welfare services.  By way of illustration, in Craigavon there has been a difficulty in getting Roma families and their children registered with General Practitioners.  Without a GP, a child cannot receive Mumps, Measles and Rubella (MMR) and other essential vaccinations which are essential for children’s health and to prevent under public health problems.  Bringing these and other gaps in provision to attention often depends on the determination of individual staff within statutory organisations.  There is no effective audit of gaps in welfare provision and their social and financial consequences.

One counter concern is that a fund may act as a magnet to attract migrant workers and others to Northern Ireland.  There is no evidence to suggest such an impact in that research this year by the Refugee Council ‘Chance or choice understanding why asylum seekers come to the UK’ revealed that three quarters of asylum seekers had no knowledge of welfare benefits and support before arriving and no expectation of receiving support.  The Law Centre’s own experience is that migrant workers are less likely to take up benefits than those originally from Northern Ireland belying the notion that the social security system is a motivation for coming to Northern Ireland.

Funding gaps in provision – the Migration Impacts Fund

An initial option to fund emergency provision was through utilising the Migration Impacts Fund (MIF).  The MIF was initially proposed in the Home Office’s Green Paper ‘The Path to Citizenship’ in March 2008 and subsequently announced as an initiative in January 2009.  The MIF was a fund created from a levy added to fees charged for non EEA nationals applying to study or work in the United Kingdom.  The fund generated £70 million to be distributed to address pressures on public services resulting from migration for a two year period from April 2009 – March 2011.  Just under one million pounds was allocated to the Northern Ireland Executive in April 2009 and was not hypothecated.  The Northern Ireland Executive has the discretion to decide how to allocate the funds in line with its priorities.  A similar sum was due to be transferred in this financial year.  However, the Department for Communities and Local Government has decided to end the fund from the end of September 2010.  For 2010/2011 Northern Ireland has therefore reduced funding from the MIF with no prospect of ongoing financial support from this source.

As a result, while the MIF funding allocated to Northern Ireland through Barnett could be utilised to kick-start an emergency fund to meet gaps in provision for migrant workers and others in social need but it would need further financial support from within Northern Ireland funds.  The fund could be co-ordinated by either a government department or administered by an independent organisation on behalf of government (one example might be the Community Foundation for Northern Ireland).  The fund would have clear criteria and be aimed at providing grants to key third sector organisations who provide specific support for migrant workers and others.  In practice, the aim would be to target the main grants to a small number of specific organisations (for example, Women’s Aid, Simon Community, St Vincent de Paul, Salvation Army, STEP).  By way of illustration, the fund could provide grant aid up to an agreed sum to Women’s Aid to meet the accommodation costs of victims of domestic violence who cannot access social security support.  The financial support would not be confined to migrant workers or asylum seekers (or their partners) though in practice many of those affected will be migrant workers as they are less likely to have access to mainstream provision.  Similar payments could be made to other emergency accommodation providers or to organisations providing or paying for services for migrant workers and others.  Sums could also be granted to provide transitional support to ease migrant workers back into employment for example, childcare costs for a short period to allow a lone parent to start work while waiting for a tax credits claim to be processed and to meet other needs to facilitate migrant workers back into employment.

In addition, a sum of money could be set aside for groups to apply for assistance for innovative projects to assist migrant workers and others (for example a local community health group promoting the importance of vaccinating young children among a local ethnic minority population).

It is very likely that the fund will relieve some Departments from expenditure, for example social services payments to migrant workers.  Moreover, one hostel which is unable to provide accommodation unless housing benefit is payable reported that two A8 nationals refused accommodation subsequently were held on remand in Maghaberry for 12 months at an expense considerably in excess of the cost of hostel accommodation.  In addition, the fund should ideally be for a three year period though agreement for a review towards the end of a first year is more realistic.

These are extremely difficult times in which to be arguing for any additional funds.  Nonetheless, the potential displacement costs generated elsewhere of not providing any welfare support makes the case one that has a value for money component.  Moreover, the difficulties that occurred post June 2009 in dealing with displaced Roma families suggests that an emergency fund could be an important vehicle to deal with such a contingency more effectively and ameliorate the potential damage to Northern Ireland Plc.

The applicants to the fund would be recognised third sector organisations with individuals being unable to apply directly to the fund to meet their own needs.  A grant making trust provides a tried and tested working model for distributing funds.  This model would involve a payment to administer the fund and normally cover producing and publicizing agreed criteria, evaluating applications, an advisory panel to consider recommendations and trustees of the charity approving grants alongside the after grant work to ensure proper reporting and accountability for expenditure of grants.

Moreover, a grant-making charitable trust would seek monies for a complementary initiative to audit gaps in provision and suggest a longer term strategic approach to dealing with the issue.  Further, monies could also be sought to commission independent research to examine how the fund has worked in practice.   There are real possibilities that charitable trusts with an interest in this issue and a track record in Northern Ireland would respond positively to an approach of this nature.   In effect, the emergency Fund could generate added value by unlocking other monies for complement any work.

Legal issues

If the Northern Ireland Executive was to create an emergency fund the, OFMDFM (as a co-ordinating body) could utilize the MIF as part of its general expenditure under the Community Relations (Amendment) (NI) Order 1975.

Having reviewed briefly other Government Department’s powers to grant aid third sector organisations there does not appear to by any legal impediment to other government departments to supporting or contributing to a fund.  For example, the Department for Social Development’s powers to provide financial assistance to third sector organisations comes from the Social Need (NI) Order 1986.  The powers in the Order are wide ranging and include the discretion to provide financial assistance to meet specific social needs including promotion of economic activity, the provision of housing, social or community facilities, the improvement of environment with a catch all power to fund anything not mentioned which the Department considers will benefit a district.

The Department for Employment and Learning has powers to grant financial assistance under section 1 of the Employment and Training Act (Northern Ireland) 1950 as amended by the Employment and Training (Amendment) (Northern Ireland) Order 1988.  This provision enables the Department to make arrangements as it considers appropriate for the purpose of assisting persons to train for, obtain and retain employment suitable for their ages or capacities.  These arrangements can include securing that such assistance is provided by persons other than the Department.  It is arguable that contributing to an emergency fund to meet the needs of migrant workers without employment falls within this section.

The powers of DHSSPS to contribute to a fund are more problematic.  Article 71 of the Health and Personal Social Services (NI) Order 1972 allows the Department to give assistance (by way of grant, loan or both) to voluntary organisations providing services similar or related to any of the health or personal social services.  Voluntary organisation is very widely defined to cover any association carrying on or proposing to carry on any activities other than for the purpose of gain by the association or by individual members.  This suggests that providing direct support to the fund may be difficult.  However, an alternative option would be to allow the organisation administering the fund to recommend a particular grant and then, for DHSSPS to fund that specific organisation.

It should also be noted that the Department’s powers to make arrangements to prevent illness, provide care for illness or after care under Section 7 of the Order are subject to the condition that such arrangements should not be made to certain non-European Economic National Area individuals who are subject to specifically defined immigration control and is destitute.  A similar limiting condition applies to the Department’s general welfare duty under Section 15 of the Order.  I would not anticipate either of these provisions being utilized by the Department for the purposes of the fund.

A second consideration is the issue of the fund being utilized to assist individuals who do not have a lawful ‘right to reside’ in the United Kingdom.  In effect, this becomes almost impossible to guarantee or police as a migrant worker losing his or her employment, or leaving a relationship due to domestic violence can lose the right to reside almost immediately.

Paradoxically, funding to assist a migrant worker to stabilize his or her situation and ease the transition back into employment will also provide the pathway back into regaining the right to reside in the United Kingdom.

In addition, immigration rules provide for individuals (and families) to be admitted to the United Kingdom on a variety of temporary grounds or for the purposes of leading to long term settlement.  Many of the grounds for permission to enter and remain in the United Kingdom are based on applicants having ‘no recourse to public funds’.  Public funds has a specific meaning in immigration law and is defined within the immigration rules.  The legal definition of public funds covers a list of specific social security benefits.  This list is exhaustive meaning that other public monies are not to be considered as ‘public funds’.  As a result, if an emergency fund allowed a third sector organisation to provide free accommodation or other support it would not constitute public funds and prejudice the immigration or other legal status of any applicant.

In any event, there is also a precedent for funding support to those with no recourse to public funds.  The Home Affairs Select Committee inquiry into the government response to Domestic Violence, Forced Marriage and Honour based Violence in 2008 raised the issue of support for victims of domestic violence  who have no recourse to public funds due to immigration status.  The Home Office in response has commenced and funded a pilot initiative with a housing provider Eaves Housing for Women Ltd to act as a national co-ordinator to identify and manage refuge provision for victims of domestic violence who have no recourse to public funds.  Money is being provided to refuges for a limited period while claims for Indefinite Leave to Remain under the Domestic Violence Rule are fast-tracked by UKBA.

In conclusion, there is no legal reason why an emergency fund could not be utilised to assist third sector organisations to provide support to migrant workers and others.  Such an arrangement does not require grant aided bodies to conduct any form of status test on those receiving assistance.

Moving ahead

There is a clear need to move quickly to create an emergency fund.

These tasks include:

A realistic timetable would suggest trying to have the fund ready for operation by January 2011.

Law Centre (NI), September 2010