Human dignity is inviolable. It must be respected and protected
provides Article 1 of the Charter of Fundamental Rights of the European Union 2000/EC 364/01.
Those claiming asylum in the UK who are solely reliant upon government support have no other source of financial support and in light of the current government stance towards such asylum claimants there is a real risk of their living in poverty and potentially being destitute thus adversely affecting their ability to have a dignified standard of living in UK.
Some asylum claimants coming to the UK looking for protection are vulnerable victims of torture and may also consist of families with young children . Whilst their claims are being progressed, for those who have applied for and are eligible for asylum support, the UK government has a duty to provide them with such support. There is therefore a need for provision of dignified levels of support that meet the essential living needs of these vulnerable claimants – they have to be viewed as needing to spend as much as UK households to meet their essential needs.
Reports in the media at times appear to give the impression that asylum claimants supported by the government are living in luxury…
” Asylum seekers housed in hotel with spectacular sea views”, reported the Telegraph on 24 September 2014(http://www.telegraph.co.uk). The news report states that up to 130 asylum seekers have been moved to a seafront hotel in Folkestone, Kent to ease overcrowding elsewhere. The Telegraph report continues: “The hotel’s website adds, this accommodation offers that exquisite dining experience that you won’t forget at the magnificent Premier Restaurant. At the Ocean Bar guests can relax and enjoy some evening entertainment which is taken care of by the very high entertaining cabaret shows, these shows take place every night”.
The title of this news report contrasts sharply with yet another news article on the same subject also from The Telegraph on 18 September 2014 : Six hundred Asylum seekers crammed Into 98-bed hotel. The news article states, “The local MP is now calling for the Home Office to take action. Steve Reed has written to the Immigration Minister James Brokenshire MP after Croydon Council’s housing enforcement team discovered overcrowding at the Queen’s Hotel, in Church Road, Crystal Palace, earlier this month. Inspectors found one of the buildings had 500 people sleeping in it, while another building, which is supposed to accommodate up to 68, had 100 people in it. There were more than four people living in ensuite rooms and they found one room was occupied by nine people”.
The second article appears to reflect more the reality of the problems faced by asylum claimants in the UK in relation to their accommodation needs and in particular their essential financial living needs. Clearly where the asylum claimants have adequate resources to cater for their accommodation needs, they would not have to live in such overcrowded conditions.
Asylum claimants solely reliant upon government support have no other source of support. Section 115 of the Immigration and Asylum Act 1999 excludes asylum seekers and their dependants from entitlement to most social security benefits, including income support, disability related benefits, social fund payments and child benefit.
Further asylum seekers are ordinarily prohibited from working while they are waiting for a decision on their claim. Although asylum seekers may apply for permission to work if they have been waiting for 12months or more for an initial decision from the Home Office, where that permission is granted it is restricted to employment in one of the Home Office’s list of shortage occupations and they are not permitted to engage in business or self-employed activities. Where the outcome of their asylum claim results in a grant of refugee status or some other form of leave to remain, then they may also become eligible for benefits.
PART VI OF THE IMMIGRATION AND ASYLUM ACT 1999
Types of support provided under the 1999 Act include the following;
(1) SECTION 95 SUPPORT – SUBSISTENCE AND/OR ACCOMODATION
The Home Office may provide or arrange for the provisions of support for asylum seekers or dependants of asylum seekers who appear to be destitute or to be likely to become destitute (ie within 14 days). A person is considered to be destitute if he does not have adequate accommodation or any means of obtaining it (whether or not his other essential living needs are met) or he has adequate accommodation or the means of obtaining it but cannot meet his other essential living needs. Support may be provided subject to conditions.
Section 96 sets out the ways in which support may be provided under Section 95 such as providing accommodation; making provision for essential living needs of the supported person and his dependants; to enable the supported person if he is an asylum seeker to meet expenses incurred in connection with his claim for asylum; to enable the asylum seeker and his dependants to attend bail proceedings in connection with his( and dependant’s) detention and under any provision of the Immigration Acts. Where however the Secretary of State considers that the circumstances of a particular case are exceptional, the Secretary of State may provide support under Section 95 in such other ways as may be considered necessary to enable the supported person and his dependants to be supported.
Section 97 provides that when the Secretary of State exercises their powers under Section 95 to provide accommodation, the Secretary of State must have regard to the fact that the accommodation is to be temporary pending determination of the asylum seeker’s claim, the desirability in general of providing accommodation in areas in which there is a ready supply of accommodation and such other matters as may be described. The Secretary of State may however not have regard to any preference that the supported person or his dependants may have as to the locality in which the accommodations is to be provided. In determining how to provide, or arrange for the provision or support, under section 95, the Secretary of State may disregard any preference which the supported person or his dependants may have as to the way in which the support is to be given.
The relevant application form for support is Form ASF1.
(2) SECTION 98 – TEMPORARY SUPPORT
Under Section 98 of the 1999 Act, the Home Office may provide or arrange for the provision of support for asylum seekers or dependants of asylum-seekers who it appears to the Home Office may be destitute. Section 98 support may be provided under this section only until the Home Office is able to determine whether support may be provided under Section 95.
(3) SUPPORT UNDER SECTION 122
Section 122 of the 1999 Act describes an eligible person as one who appears to the Secretary of State to be a person for whom support may be provided under Section 95. Where an application for support under section 95 has been made by an eligible person whose household includes a dependant under the age of 18, where it appears to the Secretary of State that adequate accommodation is not being provided for the child, she must exercise her powers under section 95 by offering and if her offer is accepted by providing or arranging for the provision of adequate accommodations for the child as part of the eligible person’s household. Further if it appears to the Secretary of State that essential living needs of the child are not being met, she must exercise her powers under section 95 by offering and if her offer is accepted by providing or arranging for the provision of essential living needs for the child as part of the eligible persons’ household.
Section 122 therefore imposes a duty on the Secretary of State in relation to the accommodation and essential living needs of destitute children of asylum seekers.
(4) SECTION 4 SUPPORT
Under Section 4 of the 1999 Act, the Secretary of State may provide or arrange provision of accommodation for those whose claims for asylum have failed or for those who have never claimed asylum but are on temporary admission or are released on bail from immigration detention.
Section 4 support is intended as a limited temporary form of support for people who are expected to leave the UK. The criteria that a failed asylum seeker or the dependants of a failed asylum seeker must meet to be eligible to receive support under section 4 of the IAA 1999 are set out in regulation 3 of the Immigration and Asylum (Provision of Accommodation to Failed Asylum- Seekers) Regulations 2005 No 930. The Regulations set out the criteria for the grant of and conditions for continued support for failed asylum seekers. The test for destitution for Section 4 support is the same as that used to determine section 95 supports.
Section 4 support can also be provided to those who are released on immigration bail. In these circumstances, the Immigration and Asylum(Provision of Accommodation to Failed Asylum Seekers Regulations 2005 No. 930 does not apply in such cases and a separate process must be followed( by reference to the Home Office Section 4 Bail Accommodation Process Instruction).
The Home Office policy is to offer all support accommodation on a ‘no choice” basis, although individual special circumstances are taken into account. The majority of those housed under section 4 are allocated shared accommodation
Section 4 support is not provided in the form of cash- support is provided in the form of self- catering accommodation with a weekly credit to the Azure pre-payment card to purchase food and essential toiletries. The Azure pre-payment card replaced Section 4 vouchers in February 2010 and can be used by applicants supported under section 4. The card can be used at supermarkets and at a variety of other outlets. The Azure pre-payment card provided for those accommodated under section 4 only can be used to buy items such as food and drink items, baby milk and food, toiletries. In exceptional cases full -board accommodation may be provided depending on availability.
A failed asylum seeker applies for section 4 supports by completing Asylum Support Form (ASF1).
THE ASYLUM SUPPORT REGULATIONS 2000 NO. 704
These Regulations make provision supplementing Part VI of the Immigration and Asylum Act 1999. They have the effect that support is to be available to asylum-seekers and their dependants who apply in accordance with the Regulations and appear to the Secretary of State to be destitute, or to be likely to become destitute within 14 days of the application being considered. The Regulations define who is a “dependant” of an asylum-seeker for these purposes and set out the matters to be taken into account in deciding whether a person, or family group, is destitute. They also set out what support can be expected to be provided to a successful applicant: this will generally take the form of accommodation, provision for other essential living needs or both accommodation and such provision. The Regulations make provision for the notification of the Secretary of State when changes of circumstances occur that may affect the support to be provided. They enable the Secretary of State to require contributions towards the cost of providing support in some cases, and to recover sums; they also set out cases where support can be suspended or discontinued, and make provision for bringing tenancies to an end.
Regulation 10 applies where the Secretary of State of State decides that asylum support should be provided in respect of the essential living needs of a person. The asylum seeker receives weekly cash payments to meet additional living expenses such as food and clothing in the amounts set out in a table in Regulation 10(2)(and Regulation 10A where applicable) .
The current amounts are :
- Single adult £36.62-(other than a small legacy remnant of over 25s who have been on support since 2009 who receive £42.62)
- Qualifying couple £72.52
- Lone parent aged 18 or over £43.94
- 16 & 17 yr olds £39.80
- Children under 16 £52.96
In addition to the Regulation 10(2) payments, additional cash payments are made to pregnant women and children under the age of three:
(1) Under Regulation 10A, added by amendment in 2003, additional weekly amounts to be paid to pregnant women and children under the age of three are as follows:
- Pregnant women £3
- Babies under the age of one £5
- Children aged one and two £3
(2) Pregnant women are granted a maternity payment (for each pregnancy) of £300 which is payable in the period from 8 weeks before the estimated delivery date to 6 weeks after birth.
APPEALS FROM REFUSALS OF ASYLUM SUPPORT
Under Section 103 of the 1999 Act as amended by section 10(3) of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004, there is a right of appeal to the Tribunal Service on an application for Section 95 and 4 support where the Secretary of State decides that the applicant does not qualify for support or stops support or decides not to provide or continue with accommodation.
The applicant may appeal to an Adjudicator. The applicant should appeal to the Tribunal Service Asylum Support within 3days of receipt of the refusal decision.
The Adjudicator may require the Secretary of State to reconsider the matter; may substitute his decision for the decision appealed against or may dismiss the appeal. The Adjudicator’s decision is final and he is required to give his decision in writing. Where the appeal is dismissed, the Secretary of State will not entertain any further Section 95 application unless there has been a material change in circumstances.
THE EUROPEAN UNION DIRECTIVE
The Reception Directive (Council Directive 2003/9/EC) includes the following;
(1) A common policy on asylum, including a Common European Asylum System, is a constituent part of the European Union’s objective of progressively establishing an area of freedom, security and justice open to those who, forced by circumstances, legitimately seek protection in the Community.………
(4) The establishment of minimum standards for the reception of asylum seekers is a further step towards a European asylum policy.
(5) This Directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union. In particular, this Directive seeks to ensure full respect for human dignity and to promote the application of Articles 1 and 18 of the said Charter.……..
(7) Minimum standards for the reception of asylum seekers that will normally suffice to ensure them a dignified standard of living and comparable living conditions in all Member States should be laid down.……..
(9) Reception of groups with special needs should be specifically designed to meet those needs.……..
(12) The possibility of abuse of the reception system should be restricted by laying down cases for the reduction or withdrawal of reception conditions for asylum seekers.……..
(15) It is in the very nature of minimum standards that Member States have the power to introduce or maintain more favourable provisions for third-country nationals and stateless persons who ask for international protection from a Member State.….
The purpose of this Directive is to lay down minimum standards for the reception of asylum seekers in Member States.
General rules on material reception conditions and health care
1. Member States shall ensure that material reception conditions are available to applicants when they make their application for asylum.
2. Member States shall make provisions on material reception conditions to ensure a standard of living adequate for the health of applicants and capable of ensuring their subsistence. Member States shall ensure that that standard of living is met in the specific situation of persons who have special needs, in accordance with Article 17, as well as in relation to the situation of persons who are in detention.
Modalities for material reception conditions
1. Where housing is provided in kind, it should take one or a combination of the following forms:
(a) premises used for the purpose of housing applicants during the examination of an application for asylum lodged at the border;
(b) accommodation centres which guarantee an adequate standard of living;
(c) private houses, flats, hotels or other premises adapted for housing applicants.
2. Member States shall ensure that applicants provided with the housing referred to in paragraph 1(a), (b) and (c) are assured:
(a) protection of their family life;
(b) the possibility of communicating with relatives, legal advisers and representatives of the United Nations High Commissioner for Refugees (UNHCR) and non-Governmental organisations (NGOs) recognised by Member States.
1. Member States shall take into account the specific situation of vulnerable persons such as minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minor children and persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence, in the national legislation implementing the provisions of Chapter II relating to material reception conditions and health care.
2. Paragraph 1 shall apply only to persons found to have special needs after an individual evaluation of their situation.”
IMPLEMENTATION OF THE DIRECTIVE
The Directive was implemented in the UK in part through existing health, education and community care provisions, with amendments to policy and in part through the Asylum Seekers( Reception Conditions) Regulations 2005 (SI 2005 No 7), the AS Regulations 2005.
Regulation 5 requires the Secretary of State to offer support under section 95 or 98 to an asylum seeker (or his family member) if the Secretary of State thinks that he is eligible for it. Regulation 4 requires the Secretary of State to take account of the special needs of a vulnerable person when he is providing or considering whether to provide support under section 95 or 98 of the 1999 Act. A vulnerable person is defined as someone, such as a minor, a disabled person, a pregnant woman, an elderly person or a lone parent who has had an assessment that confirms he does have special needs. Paragraph (4) makes it clear that the Secretary of State is not obliged to carry out such an assessment.
CHALLENGE TO THE LEVEL OF ASYLUM FINANCIAL SUPPORT
Refugee Action successfully brought a challenge over the level of financial support for asylum seekers in the following case;
R(On the Application of Refugee Action) v The Secretary of State for the Home Department 2014 EWHC 1033 Admin:
The case was concerned with support for adult asylum seekers and their dependant children awaiting final determination of their asylum claims and additionally failed asylum seekers who still have dependant children under 18 for so long as they remain in the UK. The judicial review challenge arose following an announcement by Parliament on 6 June 2013 that the level of support provided in cash to meet the essential living needs of asylum seekers for the financial year 2013/2014 should remain frozen at the rates which had applied since 2011- such support being provided pursuant to Section 95 to 98 of the 1999 Act. The Court however emphasized that the question was not what the Court considers to be the appropriate amount to meet the essential living needs of asylum seekers as that judgment lay with Parliament. The Court was not concerned with accommodation as the claim was a generic challenge to the level of asylum support provided by way of weekly cash payments to asylum seekers as a group under section 95 and the AS Regulations 2000.
The Court concluded inter alia, that the information used by the Secretary of State to set the rate of asylum seekers was simply insufficient to reach a rational decision to freeze rates. No account was taken of the erosion of rates in real terms, nor any attempt made to identify a more appropriate inflationary measure to apply. It was not for the Court or the Claimant to set out the exact parameters of the inquiry and investigation which would be sufficient. What the Claimant had established was that the Secretary of State had failed to take reasonable steps to gather sufficient information to enable her to make a rational judgment in setting the asylum support rates for 2013/2014. The Secretary of State can only fulfill her duty under section 95 by making periodic reviews.
The Secretary of State was therefore found to have acted unlawfully in setting payments to meet the essential living needs of asylum seekers by failing to take reasonable steps to gather sufficient information to make a rational judgment in setting the asylum support rates for 2013/2014.
On 12 August 2014, Refugee Action reported on their website; Home Office Announces Asylum Support Rates Will Remain Unchanged Following Review, Despite Legal Challenge– ” The Home Office announced the cripplingly low level of support paid to people seeking asylum in the UK will remain unchanged….. Refugee Action is warning that this disappointing decision will continue to push some of the most vulnerable individuals and families in our society further into poverty. Thousands of people who are banned by the government from working are being forced to live on as little as £5.23 a day…..Commenting on the review, Refugee Action Chief Executive Dave Garratt said: We are appalled by this decision. It will have a devastating impact on the dignity and wellbeing of thousands of individuals and families in our government’s care. Refugee Action refuses to accept that this is a rational response to the judge’s ruling. In its review, the Home Office suggests that asylum seekers need, for example no more than £1.08 per week to spend on toiletries, £2.51 per week on clothes and footwear and £3.00 on bus and train fares. It also suggests that £23.88 is sufficient to cover weekly food costs for an adult….”
In light of the government’s stance, the general view is that the current levels of asylum support may be forcing claimants into poverty, however there are also other issues faced by asylum claimants relying upon government support.
Even though able to apply for support, the practical reality is that the Secretary of State may not provide support to those who seek it who have not claimed asylum as soon reasonably practicable. Under Section 55 of the Nationality, Immigration and Asylum Act 2002 applicants may not be provided with support if they fail to claim asylum as soon as reasonably practicable after arriving in the UK, unless providing support is necessary to avoid a breach of a person’s rights under the European Convention of Human Rights. A Section 55 decision is always required where an asylum applicant or a failed asylum applicant applies for support under Sections 98, 95 or 4 of the 1999 Act subject to certain exceptions. Although a Section 55 refusal may be susceptible to judicial review, where applicants are excluded they are at risk of destitution more so where they are unable to work.
When a claimant receives notification that they have been refused asylum ( or they have appealed against that refusal and had all their appeal rights dismissed) they are entitled to receive asylum support for 21 calender days (plus 2 days for postage). The prescribed period is defined by regulation 3 of the Asylum Support ( Amendment)) Regulations 2000. The asylum seeker is therefore expected to leave the UK voluntarily, make alternative arrangements for their own support or face forcible removal. Where voluntary removal does not take place and the Home Office do not forcibly remove the failed asylum seeker, with no other means of support this is likely to leave the claimant destitute. Some asylum claimants may not leave the UK voluntarily as despite exhaustion of rights of appeal they may still genuinely believe that they are at risk on return to their country of origin. In some cases upon submission of further representations and supporting evidence to the Home Office, a recognition of refugee status or other leave to remain may be forthcoming from the Secretary of State.
Support for any asylum claimant is supposed to be temporary however continued reliance upon support depends on long the Home Office will take to make decisions on their claims and any further subsequent period whilst they await a determination of their appeal by the Tribunal- meanwhile the asylum claimant is expected to survive on the current levels of support provided by the government
The current levels of support therefore determine whether realistically asylum claimants can be said to be living with dignity in the UK. Having regard to the issues raised in the legal challenge by Refugee Action, there is a genuine risk that asylum claimants as currently supported by the government are at risk of living lives of poverty in the United Kingdom.