Immigration and Nationality Directorate

Section 54 of the Nationality, Immigration and Asylum Act 2002 LOCAL AUTHORITY BRIEFING PACK

Contents

1 Section 54 – An Introduction to the issue 2 Why have these measures been introduced? 3 Frequently asked questions 4 Technical Questions and Answers 5 Annex A – Policy Measures 6 Annex B - ECHR (including background note) Section 54 of the Nationality, Immigration and Asylum Act 2002: Background to the issue

 “Benefit Shopping” is the term that has been used to describe persons who arrive in the UK or remain in the UK attracted, wholly or to a great extent, by more generous or personally advantageous public support systems than elsewhere. The term ‘shopping’ reflects the personal choice being exercised by individuals.

 The phenomenon first emerged in around 1999. Newly arrived Dutch nationals of Somali origin were approaching the London Borough of Barnet and other local authorities for support. It appears that these Dutch citizens had arrived some years before in Holland from Somalia, successfully claimed asylum and gone on to acquire Dutch nationality. As Dutch nationals, they are not subject to immigration control on entering the UK as they have EEA passports.

 These individuals were approaching local authorities for support, having already been refused income-related benefits from the DWP . All new arrivals in the UK, including returning British citizens from abroad, are required to pass what is known as the ‘habitual residence test’ before being allowed access to income-related benefits such as job-seekers allowance and income support. Further information on the ‘habitual residence test’ is contained in the Benefit Shopping Q&A.

 Dutch Somali parents with children were asking local authorities to accommodate them under the provisions of section 17 of the Children Act 1989.

 Section 17 places a general duty on the local authority to safeguard and promote the welfare of children within their area who are in need and, so far as is consistent with that duty, to promote their upbringing within their families.It gives local authorities a range of powers that they can exercise in order to fulfil that duty, including the ability to provide assistance in kind or in cash, and to make arrangements for others to provide any services necessary.

 Those without children could claim assistance under the National Assistance Act 1948. Section 21 of that Act allows local authorities, with the approval of the Secretary of State, and to such an extent as he may direct, to make arrangements for providing : - residential accommodation for persons aged 18 or over who by reasons of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them; and - residential accommodation for expectant and nursing mothers who are in need of care and attention which is not otherwise available to them.

 A person to whom section 115 of the Immigration and Asylum Act 1999 [what does this section say – idea to say briefly]applies may not be provided with residential accommodation if his need for care and attention has arisen solely because he is destitute, or because of the physical effects, or anticipated physical effects of his being destitute.

 Section 29 of the National Assistance Act allows local authorities, with the approval of the Secretary of State to provide welfare to those aged 18 or over who are blind, deaf or dumb or who suffer from a mental disorder of any description and those aged 18 or over who are substantially or permanently handicapped by illness, injury or congenital deformity. A more detailed explanation of the type of welfare a local authority may provide to persons under Section 29 is contained in the benefit shopping Q & A.

 Local authorities may also provide support to individuals under various other pieces of legislation including the Health Services and Public Health Act 1968, the National Health Service Act 1977, the Local Government Act 2000 and the Immigration and Asylum Act 1999. Again a more detailed explanation of the support local authorities can provide under these pieces of legislation is contained in the benefit shopping Q&A.

 There are no precise figures available relating to the number of individuals arriving in the UK and seeking social assistance. However, anecdotal evidence suggests that over the last 18 months, between 2000 and 10000 of Dutch Somali origin have migrated to Leicester alone.

 Local authorities have adopted different approaches in dealing with claims for support from these individuals. In the case of G-v-Barnet, the Court of Appeal upheld that the local authority had acted reasonably in offering a Dutch national of Somali origin the means to return to Holland with her child where support was otherwise available, alongside an offer to take the child into care. Similarly, in the cases of Ali and Mohammed –v-Birmingham, the Court held that the local council was acting lawfully in offering transport for the families to return to the Netherlands, where they had welfare rights, with an offer to accommodate the children if the travel was declined. However, Sheffield local authority wanted to adopt a different approach and keep families together until such time that they passed the Habitual Residency Test and responsibility for support fell to the benefits system.  Local Authorities have incurred substantial financial costs in supporting these individuals. Sheffield City Council indicated spending of £563,000 in the financial year 2001/02 and Birmingham City Council an estimated 2.8 million in supporting individuals covered by the benefit shopping policy. Why have these measures been introduced?

The measures contained within Section 54 and Schedule 3 of the Nationality, Immigration and Asylum Act 2002 have been introduced to restrict support to the increasing numbers of individuals who are arriving in the UK from other EU/EEA Member states and seeking social services assistance.

The measures are intended to help ease the pressure bought to bear on local authorities and at the same time provide these individuals and their families with the means to return to their home country. To date, many local authorities have been uncertain as to whether and to what extent they should be providing support. These legal measures are intended to provide local authorities with some clarification,

The provisions set out in Section 54 and Schedule 3 will substantially reduce local authority spending on these individuals Existing case law has assisted in the development of these measures (see section one G-v-Barnet and Ali and Mohammed-v- Birmingham).

The measures apply to four categories of individuals:

 Those with citizenship in another EU/EEA Member State  Those with refugee status in another EU EEA Member State  Failed asylum seekers who fail to comply with removal directions  Those unlawfully present in the UK

An outline of the measures in respect of each category is attached at annex A.

Under these provisions children and other vulnerable persons will continue to receive appropriate thus enabling families to stay together by accepting the offer of a journey home. In particular, those with special care needs will continue to have them met until the date of travel. If they do not travel, and they have not provided an acceptable excuse, for example they were too ill to travel and a medical certificate supporting that, then care will be reduced to the minimum level in order to comply with the European Convention on Human Rights.

The provisions also create two new offences in order to guard against those who may seek to abuse the support and facilities offered to them. Firstly, it will be an offence for a person to accept the offer of a journey home, then return to the UK and claim short-term accommodation or the offer of a journey home again. Secondly, to help ensure Local Authorities have the best information before them when considering a request for support under these provisions, it will be an offence for a person to fail to mention any previous request for support under these measures. The provisions also require local authorities to take all reasonable steps to investigate an individual’s background and report to the Home Office any individual they suspect to be unlawfully present in the UK. This will facilitate the Home Office to instigate removal action against appropriate individuals.

The practical guidance that the Home Office has produced will assist local authorities in the application of the measures. Most frequently asked questions

Q Surely we cannot prevent those people who have nationality in another EU/EEA State from coming here?

A EEA nationals have the right of free movement throughout the EEA so that they have the right to enter the UK without restrictions, but they only have the right of residence here if they are exercising EC Treaty rights. They need to meet the normal criteria for receiving benefits, such as passing the habitual residence test for income support. To pass that test they need to demonstrate an intention to settle in the UK. The people we are talking about fail the habitual residence test, and go on to claim support from local authorities so that they can remain in the UK and later re-apply for support under the habitual residence test.

Q What is the habitual residence test?

A The habitual residence test is the test applied to those seeking access to Income related benefits such as Job Seekers Allowance and Income Support. It seeks to ensure that those eligible for social services and housing have sufficiently close ties to the UK. It was introduced to restrict access to benefits for people with little or no connection to the UK and no commitment to settling here. Its underlying principle is that UK taxpayers should not have to subsidise people with very tenuous links to the UK.

Q How will Local Authorities establish an individual’s immigration status?

A Local authorities will be required to take all reasonable steps to investigate an individual’s background. We are also seeking to provide details to local authorities of individuals who fail to comply with removal directions. We will provide guidance to local authorities on practical steps to help them identify the specified classes.

Q Will the Home Office provide extra funding to Local Authorities?

A The Home Office will not be providing funding to local authorities. These measures will ensure the burden on social services is reduced, not increased.

Q Are the proposed measures compatible with ECHR?

A Yes. Support will continue to be provided in circumstances where there would otherwise be a breach of an individual's ECHR rights, in particular, Articles 3 (right to protection from torture or inhumane and degrading treatment) and 8 (right to family life). Additional Q&A on the compatibility of the measures with ECHR is attached at Annex B

Q Won’t persons unlawfully present in the UK just claim asylum?

A At present it is more beneficial to such persons to quietly derive support from the local authorities rather than bring themselves to the attention of the immigration authorities to claim asylum and receive support from the Home Office. In the past local authorities could support families with children indefinitely even if they were here unlawfully, until detected by the immigration authorities. Local authorities will now have to report such cases to the Home Office who will arrange for their removal. If these individuals apply for asylum then that will bring them into the main asylum support scheme.

Q Aren’t you breaking up families? /Aren’t the needs of children best met by remaining with their families?

A No. We want families to stay together, for example in the case of those with refugee status elsewhere in the EU/EEA, temporary accommodation will be provided to entire families until the date of travel. We will be providing these families with the means to stay together in all cases by accepting a ticket home or complying with attempts to remove them from the UK. We consider that individuals with children will act as responsible parents and in their children’s best interests by accepting our offer of temporary accommodation and returning home. If they do not, we would have to consider if their child was in need of care in the same way as we do for others.

Q Will these measures leave people destitute on the streets?

A There is no reason why these measures should leave people destitute on the streets. Those with citizenship or refugee status in EU/EEA states have a means of support elsewhere and can avoid destitution by returning home and these measures will help them to return. In the case of failed asylum seekers and those unlawfully present in the UK, these people have no right to remain here and can avoid destitution by co-operating with removal directions set by the Immigration Service. It is imperative that limited Social Services budgets be preserved for those entitled and in genuine need. People will avoid destitution by returning home.

Q What if people are too ill to travel?

A Should an individual be too ill to travel, support would continue to be provided (that is the offer of a journey home would be left on the table and where appropriate, short term accommodation), subject to the provision of a full medical certificate.

Q What about those with care needs?

A Support will be provided to individuals with special care needs until the time of their warrant to travel. Should they fail to travel, care will only be provided to the minimum level in order to comply with Human Rights obligations.

Q Why are those unlawfully in the UK being supported by the taxpayer?

A We are not providing accommodation to everyone. Short-term temporary accommodation will only be provided to families with children until the date of their removal. Should they fail to travel; only children will be offered support under S20 of the Children’s Act 1989, the other family members will have support and accommodation terminated. This is consistent with the approach we are taking in other categories. Technical Q&A

1. What types of benefits are being withheld from the four categories of people?

 Paragraph 1(1) of the Schedule details the various pieces of legislation that give entitlements to benefits. These will be withheld from the four categories of people dealt with by this measure,that is:  those with citizenship in another EU/EEA Member State  those with refugee status in another EU EEA Member State  failed asylum seekers who fail to comply with removal directions  those unlawfully present in the UK

2. What types of benefit are available under s.21 or s.29 of the National Assistance Act 1948?

Section .21 allows local authorities, with the approval of the Secretary of State, and to such an extent as he may direct, to make arrangements for providing:  residential accommodation for persons aged 18 or over who by reasons of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them (sub-section 1(a)): and  residential accommodation for expectant and nursing mothers who are in need of care and attention which is not otherwise available to them Sub- section 1(aa));

A person to whom section 115 of the Immigration and Asylum Act 1999 applies may not be provided with residential accommodation under sub-section 1(a) if his need for care and attention has arisen solely because he is destitute, or because of the physical effects, or anticipated physical effects of his being destitute.

S.29 allows local authorities, with the approval of the Secretary of State, and to such extent as he may direct in relation to persons ordinarily resident in the area of the local authority, to make arrangements for promoting the welfare of persons to whom this section applies. That is to say, persons aged 18 or over who are blind, deaf or dumb, or who suffer from mental disorder of any description, and other persons aged 18 or over who are substantially and permanently handicapped by illness, injury or congenital deformity or such other such disabilities as my be prescribed by the Minister.

Under section 29 arrangements may be made for:  informing persons of services available for them.  giving such persons instruction in their own homes or elsewhere in methods of overcoming the effects of their disabilities.  providing workshops where such persons may be engaged in suitable work, and hostels where persons engage in the workshops.  providing persons to whom this section relates with suitable work in their own homes or elsewhere.  helping such persons in disposing of the produce of their work.  providing such persons with recreational facilities in their own homes or elsewhere.  compiling and maintaining classified registers of the persons to whom arrangements under section.

3. What types of benefit are available under s.45 of the Health Services and Public Health Act 1968?

This provides that a local authority may with the approval of the Secretary of State, and to such an extent as he may direct, shall make arrangements for promoting the welfare of older people. A local authority may employ as their agent for the purposes of this section any voluntary organisation or any person carrying on professionally or by way of trade or business, activities which consist of or include the provision of services for old people, being an organisation or person appearing to the authority to be capable of promoting the welfare of old people.

No arrangements under this section may be given effect to in relation to a person to whom section 115 of the Immigration and Asylum Act 1999 applies solely because he is destitute, or because of the physical effects, or anticipated physical effects of his being destitute.

4. What types of benefit are available under s.21 and schedule 8 to the National Health Service Act 1977?

Section 21 states that services described in Schedule 8 to this Act in relation to:  care of mothers,  prevention, care and after-care,  home help and laundry facilities are functions exercisable by local social services authorities, and that Schedule has effect accordingly.

Care of mothers and young children

With regard to the care of mothers and young children, Schedule 8 states that a local social services authority may, with the Secretary of State’s approval, and to such extent as he may direct, shall make arrangements for the care of expectant and nursing mothers (others than for the provision of residential accommodation for them).

Prevention, care and after-care

With regard to prevention, care and after-care, Schedule 8 states that a local social services authority may, with the Secretary of State’s approval, and to such extent as he may direct, shall make arrangements for the purpose of the prevention of illness, and for the care of persons suffering from illness, and for the after-care of persons who have been suffering and in particular for:  the provision of persons whose care is undertaken with a view to preventing them from becoming ill, persons suffering from illness and persons who have been so suffering, of centres and other facilities for training them or keeping them suitably occupied and the equipment and maintenance of such centres.  the provision of, for the benefit of such persons as are mentioned above of ancillary or supplemental services.  the exercise of the functions of the authority in respect of persons suffering from mental disorder who are received into guardianship under Part 2 or 3 of the Mental Health Act 1983.

No arrangements for the above services may be given effect to in relation to a person to whom section 115 of the Immigration and Asylum Act 1999 applies solely because he is destitute, or because of the physical effects, or anticipated physical effects of his being destitute.

Home help and laundry facilities

With regard to home help and laundry facilities, Schedule 8 states that it is the duty of every local social services authority to provide on such a scale as is adequate for the needs of their area, or to arrange for the provision on such a scale as is so adequate, of home help for households where such help is required owing to the presence of a person who is suffering from illness, lying-in, an expectant mother, aged, handicapped as a result of having suffered from illness or by congenital deformity.

Every such authority has power to provide or arrange for the provision of laundry facilities for households for which home help is being, or can be, provided under this sub-paragraph.

5. What types of benefit are available under sections 17, 23c, 24a or 24b of the Children Act 1989?

Section 17 places a general duty on the local authority to safeguard and promote the welfare of children within their area who are in need and, so far as is consistent with that duty, to promote their upbringing within their families. It gives local authorities a range of powers that they can exercise in order to fulfil that duty, including the ability to provide assistance in kind or in cash, and to make arrangements for others to provide any services necessary.

Section 17(10) defines a child as being in need if:

 he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him of services by a local authority;  his health or development is likely to be significantly impaired, or further impaired, without the provision for him of such services; or  he is disabled. Section 17 does not impose any specific duties on local authorities to meet the assessed needs of any specific child, only powers to enable them to do so.

Section 23C sets out the duties of a LA in respect of a former relevant child: that is, a qualifying care leaver who is now aged 18+. They must provide a Young Person’s Adviser and a Pathway Plan, which must be reviewed at least every six months. The responsible authority must to keep in touch with them until they are at least 21, or later if they are still being helped with education or training.

On top of this, the Act creates new duties on local authorities to provide general assistance for these young people, in cash or in kind, until they are 21, and to assist with employment, education and training. The duty to assist with education and training will last for as long as the young person is pursuing their agreed programme, even if it takes them past the age of 21.

Sections 24A and B set out LAs’ powers and duties in respect of qualifying persons – that is, care leavers who have been looked after at some time after reaching the age of 16 but who do not qualify as former relevant children. The LA must advise and befriend them, and has powers to provide assistance along very similar lines to its duties in respect of former relevant children, though not a Young Person’s Adviser or a Pathway Plan. Assistance with education and training cannot run past the age of 24 for qualifying persons.

6. What types of benefit are available under s.2 of the Local Government Act 2000?

Section 2 of the Local Government Act 2000 (“the Local Government Act”) provides a wide power for local authorities to improve the economic, social and environmental welfare of a local area provided it is not specifically prohibited elsewhere in legislation.

There is a possibility that asylum-seekers or other categories of persons who are affected by this policy could have support provided to them under section 2 of the Local Government Act. The policy proposal is that such support should not be provided, other than the provision of a return ticket (or temporary accommodation pending the return journey), as detailed in the schedule.

7. What types of benefit are available under the Immigration and Asylum Act 1999?

The National Asylum Support Service (NASS) was introduced in the Immigration and Asylum Act 1999. NASS provides accommodation and other financial support for those persons who have had a claim for asylum recorded by the Secretary of State.

There continue to be a large but declining number of asylum seekers supported by local authorities under arrangements prior to the existence of NASS (the "Interim scheme"). These cases are provided with support under the Asylum Support (Interim Provisions) Regulations 1999 (in exercise of powers in the 1999 Act) and local authorities are able to claim grant from NASS.

There are also a steadily declining number of asylum seekers who receive social security benefits. Eligibility for social security benefits is dependent on the asylum seeker applying on arrival before 3 April 2000 and it is only available until the Secretary of State has made a decision on the person’s asylum claim - at this point, if appealing, the person can apply to NASS (if refused on or after 25 September 2000) or for older cases their local authority (if refused before 25 September 2000).

For singles and childless couples asylum support continues for 21 days after they have had their appeal disposed of. During the 21 day period the Immigration Service will normally attempt removal. For those singles and childless couples who can't be removed, for example because there is no return route to their country of origin then asylum support will normally be ended 21 days after their appeal has been disposed and the person can apply to NASS for support under section 4 of the Immigration and Asylum Act 1999 (hard case support).

11. What are the full criteria for hard case support? (Section 4 of the Immigration and Asylum Act 1999)

A person may be provided with support under section 4 of the Immigration and Asylum Act 1999 (“ the Act”) if:

. His/her claim for asylum has been determined (within the meaning of Part VI of the Act); . He/she has been supported by the National Asylum Support Service or by a local authority under Schedule 9 to the Act; . He/she is no longer an asylum-seeker within the meaning of Part VI of the Act; . He/she appears to be destitute within the meaning of Part VI of the Act; and . He/she has no other avenue of support.

Each case will be considered on its merits, but support will not normally be made available to a person unless:

. He/she is unable to leave the United Kingdom by reason of a physical impediment to travel e.g. through illness or late pregnancy; or . The circumstances of the case are exceptional; and

he/she is taking all reasonable steps to leave the United Kingdom and, in any event, is complying fully with the efforts to remove him/her.

. Support may also be provided if it is clear that an eligible person has been granted permission for judicial review of any determination in respect of his /her application for asylum or has made an application for permission to apply for judicial review and the application does not appear to the Secretary of State wholly unmeritorious.

Support under section 4 of the Act will be basic full board accommodation normally outside of London and those supported may be required to subject themselves to regular monthly reviews and, other than in cases where judicial proceedings are outstanding, be able to show that they are taking all reasonable steps to leave the United Kingdom and in any event are complying fully with efforts to remove them.

12. Will families with children end up on hard case support?

No- where an asylum seeker's household includes a dependent child under 18 then asylum support will continue until they have failed to comply with removal directions. Families who can't be removed receive removal directions and will continue to receive asylum support by virtue of section 94(5) of the Immigration and Asylum Act 1999, (albeit that the Bill is amending this in clause 38(4) and (5)).

13. Why have you decided to remove support from families with children. Under the 1999 Act they were provided with support until they left the UK?

Families with children who have been refused asylum and lost their appeal can and should leave the UK either through the Voluntary Assisted Returns Programme or in compliance with removal by the Immigration Service. Those that fail to co-operate with removal will have their support withdrawn. 14. How will local authorities who provided support to asylum seekers under the Interim Scheme know when an asylum seeker has failed to comply with removal?

There is already a process in place to inform local authorities when they should cease providing support to these cases.

15. What about an EEA national who has been here for 10 years? They won’t be eligible for these types of support.

A person who had lived in the UK for 10 years would pass the habitual residence test. They would be entitled to the income-related benefits, such as jobseekers allowance, income support and housing benefit. They would not need recourse to these other types of benefit.

16. What about a refugee from another EEA state who has been residing here for an extended period?

Refugees from other EEA states remain subject to immigration control and would be expected to return to their host country where support would be available.

17. Does the Habitual Residence Test take account of immigration status?

Not in itself. However, before applying the habitual residence test, a person must first satisfy the immigration criteria for access to income-related benefits. The criteria, as set out in s.115 of the Immigration and Asylum Act 1999, mandates those person subject to immigration control are not eligible for the income-related benefits and therefore the habitual residence test would not be applied in this case. UK and EEA nationals are not subject to immigration control; therefore the habitual residence test is applied to them alone.

18. Which types of people are granted leave to enter or remain in the UK with recourse to public funds?

Broadly speaking a person subject to immigration control who has limited leave to enter or remain is not eligible for support from public funds. The immigration rules include requirements that those seeking to enter or remain in this country should have the basic means to support themselves and any dependants without the need to seek assistance from the State. However, access to support from public funds may be exceptionally granted in cases where it has been agreed to grant refugee status, or exceptional leave to enter or remain on humanitarian grounds, or once agreed, when granting further exceptional leave. 20. What are ‘public funds’ exactly?

The Immigration and Asylum Act 1999 and the Immigration Rules define public funds for immigration purposes. The following is a list of public funds as defined:

 Income based Jobseekers’ Allowance (JSA);  Attendance allowance;  Severe disablement allowance;  Invalid care allowance;  Disability living allowance;  Income support;  Working families’ tax credit;  Disabled person’s tax credit;  A social fund payment;  Child benefit;  Housing benefit;  Council tax benefit; or  Housing and homelessness assistance.

21. Will people allowed to enter and/or remain the UK with recourse to public funds be excluded from the types of benefits covered by the benefit shopping measures?

No. They will be eligible in the normal way.

22. What are the countries of the EEA?

The 15 member states of the EU, and Norway, Iceland and Liechtenstein. EEA nationals have the same immigration rights as EU citizens under European Community Law.

23. Paragraph 3 of the Schedule says that nothing prevents the exercise of a power or duty to the extent it is necessary to avoid breaching a person’s convention rights or their rights under Community Treaties. What does this mean in reality?

Title III of the Treaty establishing the European Community sets out the Treaty provisions on the freedom of movement of persons. These Treaty provisions set the framework for the rights of nationals of one member state to enter and reside in another member state for the purpose of working in that state, receiving services in that state etc. There is then a whole host of EC Directives and Regulations to give effect to these free movement rights.

24 Which directives give effect to these free movement rights? (1) Under Directive 68/360 EU nationals can enter and reside in the UK for the purpose of working in the UK. They can bring their families with them. Under Article 7(2) of Regulation 1612/68 such a worker is entitled to receive the same social and tax advantages as UK workers.

(2) Under Directive 73/148 EU nationals can enter and reside in the UK for the purpose of setting themselves up here as self-employed persons or to receive services here. Again they can bring their families.

(3) Under Directive 90/364 EU nationals and their families can enter and reside in the UK provided that they have sickness insurance and sufficient resources to avoid becoming a burden on the social assistance system of the UK. This Directive is a catch all Directive in that it confers entry and residence rights on EU nationals and their families who do not have such rights under any other provision of Community law.

(4) Under Directive 93/96 EU students and their families can come to the UK for vocational training. However, the student has to assure the UK authorities that he/she has sufficient resources to avoid becoming a burden on the social assistance system of the UK and the student has to have sickness insurance.

EC case law is not clear on the point of whether work seekers are entitled to benefits in the same way as workers. But it appears that work-seekers do not have the same status, and will not be entitled to full equality of treatment as regards social benefits in the Host State, as actual workers.

So what if the directives give a person rights to benefits in the UK – such as workers from other EEA states. Will they be excluded by Schedule 3?

No. Paragraph 3 covers this point. Schedule 3 would not allow withholding benefit to a worker from another EEA State where this would be a breach of a person’s rights under the Community Treaties. ANNEX A POLICY MEASURES

Those with Refugee Status in another EU/EEA State

 If childless, no support other than the offer of a warrant to travel to the country where status has been granted;  If with children, temporary accommodation by Local Authority and a warrant to travel home as soon as possible. If they don’t travel the warrant offer stays on the table but no further accommodation unless they are too ill to travel/a dependent child is too ill to travel;  In the event of failure to travel, children will be offered places in care but no further accommodation or support for adults;  If they have care needs, support will be provided until the time of the warrant. If they fail to travel care will only be provided to the minimum level in order to comply with Human Rights obligations. If they are fit enough to travel, the travel warrant will also be offered.

EU/EEA Nationals

 Same as above, unless exercising treaty rights as ‘workers’

Failed Asylum Seekers Failing to Comply with Removal Directions

 Once they have failed to comply with removal directions, no further support or accommodation to the individual or family other than the offer of care for any children under s.20 of the Children Act.  Support to those with special care needs limited to the minimum level in order to comply with Human Rights obligations

Persons Unlawfully in the UK

 Local Authorities have statutory obligation to inform IND if they suspect a person/persons may be unlawfully present in the UK – in appropriate cases Home Office will then issue removal directions;  If with children, temporary accommodation by Local Authority until the date of travel. If they don’t travel no further accommodation unless they are too ill to travel/ a dependent child is too ill to travel  If they have care needs support will be provided until the date of travel. If they fail to travel care will only be provided to the minimum level in order to comply with Human Rights obligations. Former Unaccompanied Asylum Seeker Children (UASCs)

 UASC's are now normally granted ELR until they are aged 18.  If a UASC reaches 18 and again applies for asylum, then asylum support will be available. If they subsequently have their claim determined then support will come to an end in the same way as any other adult failed asylum seeker. Accommodation and cash will not be available if asylum support is ended and the person is also receiving continuing care under the Children Leaving Care Act.

Other Measures in Support of the Above

 New criminal offence created where someone has been through the system, sent away with a travel warrant and then comes back to try again  New criminal offence to fail to disclose previous applications made for support under this proposal.  Local Authorities are to be required to inform IND if they suspect applicant is unlawfully present in the UK so that IND may trace the person and where appropriate issue removal directions.  Travel arrangements home must be arranged so that any support is provided for the shortest possible period prior to travel by the most cost-effective means.

Reasons for Not Travelling

Those who fail to travel will have support withdrawn, or in the case of those with care needs, reduced to the minimum level necessary to comply with ECHR unless:

 The individual is medically unfit to travel, and a doctor certifies this in advance of, on, or within 3 days of the date of booked travel. Any well partner would travel.

 A dependant child is medically unfit to travel, and a doctor certifies this in advance of, on, or within 3 days of the date of booked travel. In this case one parent or guardian may remain with the child. The rest of the family will travel.

 There is an unavoidable failure in the public transport system that could not have been reasonably foreseen or avoided.

General Exemption

 Local Authority may provide any support to any person outside of the above to the minimum level needed to avoid breaching Articles 3 and 8 of ECHR.

Annex B ECHR

1 Benefit Shopping: Is withholding support a breach of Article 3 ECHR?

 There may be exceptionally severe cases where in all circumstances, it would be contrary to Article 3 to deny support. Paragraph 3(a) of Schedule 3 to the Bill would allow support to be provided in those cases.

 It would not be contrary to Article 3 to withhold support from someone who has been given a travel permit enabling him to go to a country which will provide him with support, if the person freely chooses not to leave the country.

2 Benefit Shopping: Is withholding support a breach of Article 8 ECHR?

 Article 8(1) could, in principle, be breached in exceptionally severe cases. However, any interference with these rights will generally be lawful by virtue of Article 8(2). These measures pursue the legitimate policy of ensuring that local authorities' scarce resources are concentrated on those who cannot receive support elsewhere. The proposals achieve this policy in a proportionate manner, by providing the means of returning to the country that can provide an alternative source of support. The Government has a wide “margin of discretion” when deciding how to allocate scarce public resources: decisions of this sort are better made by democratically elected institutions than by the Courts.

3 NASS: Is it a breach of Article 3 if NASS withdraws support due to breach of conditions?

 The Government accepts that Article 3 is absolute and unqualified and in exceptionally severe cases the withdrawal of support can in principle constitute a breach of Article 3.

 Whether Article 3 is breached will be a question of fact in each case, depending on all of a person's particular circumstances. Article 3 will not be breached simply because a person is "destitute", as defined in section 95 of the Immigration and Asylum Act 1999 (and as being amended by clause 38(6) of the Bill  We should be able to withdraw support from those who abuse our systems. The Asylum Support Regulations 2000 provide for support to be withdrawn if there is a breach of the conditions under which support is provided. When support is withdrawn in the UK decisions are taken on a case by case basis and the person can appeal to an Asylum Support Adjudicator.

 Withdrawal of support may engage ECHR Article 3 in some exceptionally severe circumstances but we do not consider that destitution alone reaches the threshold required to be reached before Article 3 is engaged.

 In the event that an applicant considers that their rights under ECHR have been breached they can ask for NASS support to be reinstated.

4 NASS: Withdrawing support from asylum seekers who don't travel is a bit excessive/ disproportionate isn't it?

 We cannot allow asylum seekers to have chance after chance of travelling when they do not have good reason. To do so would undermine the dispersal process- it would mean that our temporary accommodation would very quickly fill up and the re-booking of travel and allocating accommodation would be an unnecessary drain on resources.

 Withdrawing support to those that fail to travel without reasonable excuse sends out a clear message that asylum seekers must comply with our processes. Of course if an asylum seeker has a reasonable excuse for not travelling then we will re-arrange travel and we ensure that asylum seekers are aware of the consequences of failing to travel to dispersal accommodation.

5 NASS: What if a family fails to travel?  In such circumstances they are required to leave their temporary accommodation but they are informed that an offer of support remains open to them. Dispersal support is provided if they take up the offer. ECHR - BACKGROUND NOTE

Article 3 - Prohibition of torture

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

Article 6 - Right to a fair trial

1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgement shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

3. Everyone charged with a criminal offence has the following minimum rights:

(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; (b) to have adequate time and facilities for the preparation of his defence; (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.

Article 8 - Right to respect for private and family life

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Relevant court cases

In O'Rourke v UK (No39022/97); McQuiston v UK (No 11208/84) it was held that Article 3 is not breached if a person's condition is a result of his own actions and decisions.

In Bensaid v UK (No 444599/98) the court held that the threshold is high, particularly where the harm in question has not been directly inflicted by the State.

R (Husain) v Asylum Support Adjudicator and Home Secretary (judgement of 5 October 2001):

Hussain, a disabled asylum seeker, was initially supported by NASS. He assaulted another asylum seeker resident with an iron bar in front of credible witnesses (one witness was the legal representative of another asylum seeker) and was arrested by police officers. NASS withdrew support because he had breached his conditions of support by breaching his occupancy agreement. He appealed to an Asylum Support Adjudicator (ASA) who dismissed his appeal. Hussain sought a judicial review arguing that there was a breach of Article 6 because the ASA are appointed by the Home Secretary and are not sufficiently independent from the Home Office.

Although the case was dismissed, in his judgement Stanley Burnton J made an obiter and unhelpful comment on Article 3:

"The question in the present case is whether the withdrawal of support from destitute asylum-seekers, who by definition lack the means of obtaining adequate accommodation or cannot meet their other essential living needs, in consequence of their misconduct, may constitute inhuman punishment or treatment and so violate Article 3. The judgement of the Court of Appeal in the JCWI case indicates that other means of support, principally charities, are scarce. In my judgement, unless other means of support are available when support is available when support is withdrawn, there will be a violation of Article 3".