Legal eye: a matter of basic human rights

Legal eye: a matter of basic human rights

Legal eye: a matter of basic human rights

First Published 01 May 2000

When is a refugee fleeing civil war ‘intentionally destitute’? When they fall foul of tough new UK asylum procedures, it seems.

Upheavals and civil wars in Africa and Europe in the 1980s and 1990s caused an increasing stream of refugees to seek safety and shelter in the UK. As a deterrent measure, the last government’s 1993 Asylum and Immigration Appeals Act launched a programme to withdraw entitlement to benefits and housing. The reform has continued under this government, the latest step being the 1999 Immigration and Asylum Act. ‘Interim arrangements’ came into force on 6 December and the Act itself took effect -on a phased basis -from April this year.

The interim arrangements affect those applying for asylum in-country, rather than at the port of entry. New cases and those asylum seekers currently provided with support under the 1948 National Assistance Act are caught by the new rules, as are those who are currently eligible for benefits but who become destitute (for example, where their eligibility for benefits ceases following a refusal of asylum). A package of support and accommodation will be available for these groups, but only for applicants who meet a destitution test.

The package of support and accommodation is very limited unless exceptional circumstances apply. The support element is made up of vouchers and no more than £10 a week per person in cash.

If support is provided, other help which had been available (for example, services for children in need under section 17 of the 1989 Children Act) will no longer be available. Asylum-seeking children who are unaccompanied will, however, still be eligible for services under the Children Act -over 1,000 such children make claims for asylum each year in the UK.

The scheme is extremely harsh. Once a claim for asylum has been refused and appeal rights exhausted, asylum seekers without dependants cease to be eligible for any help at all. There is no safety net to provide support and accommodation. Asylum seekers with dependent children are in a slightly more favourable position as, after the exhaustion of rights of appeal, there will be the limited protection of the Children Act.

Of vital importance to asylum seekers is the pursuit of their asylum claims. The support package is intended to include help with travel expenses so that interviews may be attended and appeals pursued properly, with advice.

At the heart of the new scheme is dispersal -asylum seekers being referred to other local authorities. The Home Office took over this function from April, by means of the new National Asylum Support Service. But practical difficulties in securing sufficient accommodation have delayed full implementation of the scheme.

Another harsh feature of the scheme is the removal of support in some other circumstances -for example, if an applicant is ‘intentionally destitute’, a crude disqualification modelled on intentional homelessness. Support may also be refused if an applicant has already approached another local authority for support.

Support may also be refused if, within the previous 12 months, the applicant has sought help under the National Assistance Act or the Children Act -acting as a penalty to those asylum seekers who may have obtained and then lost help in the past. Moreover, a failure to comply with ‘reasonable conditions’ which may be attached to the support package can lead to its discontinuance.

This is bound to lead to conflict. Early experience has shown that some local authorities -although only a tiny minority -are ready to conclude that no support need be provided where asylum seekers have failed, by a matter of minutes, to turn up and catch buses hired to take them to the place where accommodation will be provided. Similarly, a breach of hostel rules could lead to the loss of support. These issues will no doubt be argued about fiercely through the courts.

It is worth recalling that the purpose of allowing asylum seekers to remain in the UK lawfully is to enable them to pursue their claims for asylum. The real cause of the difficulties faced by local authorities and asylum seekers is the huge backlog and the absence of a scheme for determining claims fairly and swiftly. To apply measures intended to deter claims without first resolving this underlying problem will cause unnecessary hardship.

Asylum seekers are entitled, like anyone, to the benefit of human rights contained in the European Convention which becomes part of UK domestic law in October this year. Conferring a right to respect for home and family life, conferring a right to a fair and public determination of a person’s rights and obligations (including a claim for asylum), which provides that rights and freedoms contained in the convention shall be enjoyed without discrimination.

The scheme introduced by the Immigration and Asylum Act must, in its practical application, comply with these key rights. If the scheme prevents asylum seekers from keeping their families together and pursuing their claims for asylum properly, it will fail the human rights test.

Russell Campbell is HHSE’s chief solicitor