5 Restricting family support
55. The Government proposes that the law should be
amended so that National Asylum Support Service (NASS) support
for families with dependent children whose claim for asylum has
been rejected and who have no avenue of appeal left, will end
as soon as it is confirmed that the family is in a position to
leave the UK, either via the Immigration Service or via a voluntary
assisted return. Under the provisions in Clause 7 of the
Bill, no other forms of support would be available to a family
in these circumstances, other than under Section 20 of the Children
Act 1989—which would entail separating the children from
their parents.[50] Section
20 provides that:
"Every local authority shall provide accommodation
for any child in need within their area who appears to them to
require accommodation as a result of … the person who has
been caring for him being prevented (whether or not permanently,
and for whatever reason) from providing him with suitable accommodation
and care."
56. Most of the organisations which submitted evidence
to us strongly opposed this proposal. Citizens Advice, for example,
claimed that it would leave families destitute in-between their
asylum claim being rejected and their eventual removal. They argued
that this will leave families with no incentive to co-operate
in their own removal, and that if they are made homeless it will
make the process of removal more difficult because the Home Office
will have no address at which to contact them.[51]
57. JUSTICE argued that in cases where the Home Office
is unable to enforce removal owing to conditions in the country
of origin or documentation difficulties, voluntary return may
not be a realistic option. In such circumstance, they claimed,
withdrawing support "would de facto amount to enforced
removal by threat of destitution and separation from their children",
which would be "immoral and unlawful".[52]
58. Mr Peter Gilroy of Kent County Council describes
this as the "most problematic" of the Government's proposals
from a local government perspective. He states:
"I do not understand why if families have
no avenues of appeal left they cannot simply be moved by the Immigration
and Nationality Directorate. It seems inappropriate to involve
the local authority in invoking Section 20 of the 1989 Children
Act. This would seem to be generally against the best interests
of the children as it would separate them from their parents and
would also involve the local authority in substantial costs. The
proposal does not address the role of the local authority should
the parent refuse to agree to Section 20 care for their children
whilst remaining homeless and putting the children at risk."[53]
59. The Refugee Children's Consortium argues that
if the proposal were implemented, "the Children Act is undermined,
children are placed at risk, and social workers are put in an
impossible ethical position".[54]
Mr Ken Livingstone, the Mayor of London, claimed that the proposal
would weaken the integrity of voluntary return programmes "by
using them as surrogate forms of coercive removal". He argued
that the separation of children from their parents under the Children
Act would cause "real distress" to them, and might motivate
families to try and stay together illegally or 'underground'.[55]
60. When we put these criticisms to the Minister
of State, she explained the rationale behind the Government's
proposals as follows:
"The proposals are not at all intended to
make families destitute. They are intended both as a deterrent
but also as an incentive. … I want to try and persuade as
many families as possible, when they come to the end of the road,
to go back in a dignified way, with support, on a voluntary basis.
It may seem contradictory to some people to say we are going to
restrict family support when we get to that point, but that is
our intention. It actually says to people, 'Look, there are some
alternatives here. We hope that you will take the best alternative
for yourself and your children, that is, to go voluntarily, but
if you do not, you will be removed forcibly and you will not continue
to get support until we have done that.' "[56]
61. Commenting on the possibility of the children
of asylum-seekers being separated from their parents and taken
into care under the new proposals, the Minister of State acknowledged
that "I do not think that is in the best interests of those
children, and I hope it would not come to that in any individual
circumstance at all".[57]
She later expanded on this comment:
"the children of families who are with their
parents and due to be removed, if it came to it that in a particular
case the children were taken into care, then we would act very
quickly in those circumstances to remove the whole family completely,
because clearly they would be with their parents. We would not
be leaving those children with local authorities for long periods
of time."[58]
62. The Minister of State subsequently wrote to us
clarifying the Government's position.[59]
She reiterated that the purpose of Clause 7 is "to ensure
that people who are under a legal duty to leave the country have
no incentive to frustrate and draw out the process". She
said that the Immigration Service would be issued with detailed
guidance about how to implement the measure, but in basic terms
they would be looking for clear evidence that a family had refused
or intended to refuse an opportunity to leave the country and
had no reasonable excuse (such as the serious illness of a family
member); or that they were failing to co-operate with steps to
resupply them with travel documents to enable them to leave. When
the Immigration Service had reached that view, it would seek to
interview the family, to make clear the consequences of their
non-compliance. Only in the event of continued refusal by the
family to co-operate would benefit be withdrawn.
63. The Minister of State said that the Government
did not seek the compulsory removal of all families illegally
present in the UK because of the expense and difficulty of this
option. However, some families might decide not to leave the country
even at the risk of destitution for themselves and their children.
The Minister went on:
"We cannot know what proportion of families
would act in such an irresponsible way: I hope it will be small.
Indeed, we have no reason to believe that asylum-seeking parents
are any more likely to prefer to abandon their children than any
other parents. What I do want to make clear, however, is that
even where this does happen it does not follow that the
children will need to be taken into local authority [care] under
the provisions of the Children Act …; indeed, we are determined
that the number of cases in which children are taken into local
authority care will be as low as possible. We will achieve this
by ensuring that families who are refusing to co-operate with
voluntary departure processes will be targeted for compulsory
removal so that we can ensure that all its members leave the country
together."
64. The Minister also informed us that the Home Office
is not in a position to give estimates of the number of families
to whom Clause 7 might apply. We believe that this is unsatisfactory
and that the Home Office should at least be able to publish figures
showing the number of families, including the number of children,
who are currently in the asylum system and to whom Clause 7 could
apply.
65. The Government sets out its view of the human
rights implications of its proposal as follows:
"Clause 7 creates a fifth class of person
(failed asylum seeker with family) who are ineligible for support
under Paragraph 1 of Schedule 3 to the Nationality, Immigration
and Asylum Act 2002. This raises an issue under Article 3 [of
the ECHR] (prohibition of torture and inhuman and degrading treatment)
and Article 8 (right to respect for private and family life) in
relation to removal of asylum support. However, the provision
is aimed at encouraging those who can leave but are not doing
so, to leave the United Kingdom. Any potential treatment contrary
to Article 3 or Article 8 is therefore avoidable. In any event,
there is a saving provision in Schedule 3 which would permit support
to be provided to avoid a breach of a person's Convention rights
in so far as necessary."[60]
66. We are very uneasy about this provision in the
Bill. We support the Government's objective, which is to encourage
people who have failed in their asylum claim to leave the UK voluntarily
when they are able to do so. However, the proposal in Clause 7
seems to us flawed, on several grounds:
- First, it may well have the
effect of driving failed asylum-seekers underground, and actually
making it harder to remove them.
- Second, for some families it will introduce an
incentive for them to do so while leaving their children in the
care of local authorities at public expense.
- Third, holding the threat of destitution over
failed asylum seekers raises the same ethical difficulties as
those raised by the existing section 55 of the Nationality, Immigration
and Asylum Act 2002 (which prevents the provision of support to
asylum seekers unless the Secretary of State is satisfied that
their asylum claim was made as soon as reasonably practicable
after arrival in the UK). This has been the subject of much criticism,
not least from members of the judiciary. We will comment further
on section 55 in our forthcoming report on asylum applications.
- Fourth, there is a real prospect of multiple
legal challenges to the deprivation of support and the enforced
separation of children from parents under the powers conferred
by Clause 7.
- Fifth, we are concerned that the 'saving provision'
in Schedule 3, enabling support to be provided if necessary to
avoid a breach of ECHR rights, may in fact—notwithstanding
the recent court judgement that destitution may not in all circumstances
be a breach of human rights[61]—vitiate
the purpose of the proposal. (The Joint Committee on Human Rights
will be reporting on the human rights implications of Clause 7
in due course.)
- Sixth, the Minister's comment that if children
were taken into care, the Government would act immediately
to remove them together with their parents from the UK seems to
commit the Government to removing all families with children when
their asylum claim has failed, and when they can safely be returned
to a country with which the UK has a repatriation agreement. However,
the unwillingness of some failed asylum-seekers to leave the UK
would be more satisfactorily tackled by a vigorous government
policy of swift compulsory removals, of the kind we advocate in
our earlier report on asylum removals.
67. We note that the difficulties the Government
face stem from a failure to integrate the removal system with
the asylum decision-making system. We believe that the priority
should be to improve the removal system so that it is understood
by all parties that a failed claim will lead to swift action to
effect a removal. In our report on asylum removals, we
commented on the disturbingly low rate of removals. Since the
publication of that report, in May 2003, the rate of removals
has increased: the Minister of State told us that the current
rate of removals of failed asylum seekers, as at November 2003,
was around 1,500 a month, or 18,000 a year.[62]
We welcome this improvement. Nonetheless, the rate of removal
is still unacceptably low in proportion to the numbers of people
eligible to be removed.
68. We share the Government's view that it makes
no sense for those families who cannot establish a right to asylum,
and who can be safely returned to their countries, to continue
to be supported at the taxpayers' expense. To do so undermines
the integrity of and public confidence in the asylum system. However,
we believe that, for the reasons given above, the Government's
proposals may be counter-productive.
69. The principle behind Clause 7, of removing taxpayers'
support from those with no right to asylum, is justified, and
we do not recommend that Clause 7 be removed from the Bill. However,
we recommend that the Government should give assurances that Clause
7 will not come into effect until the House is satisfied that
in practice it will not lead to significant numbers of children
being taken into care. We note the Minister's comment,
on the possibility of asylum seekers' children being taken into
care as a result of Clause 7, that "I hope it would not come
to that in any individual circumstance at all".[63]
We recommend that in its consideration of the Bill, the House
should give particular attention to the way in which the Government
plans to implement Clause 7.
70. If the provisions in Clause 7 are brought into
effect, we recommend that the Government should submit a written
report to Parliament once a year on the number of families from
whom benefit has been removed under the terms of the clause, and
the number of children who have been taken into care as a result
of the operation of the clause.
71. Benefit will only be withdrawn from asylum seeking
families under the provisions of Clause 7 where return to their
country of origin is, in the Secretary of State's opinion, an
option, i.e. where the country is deemed 'safe'. We have noted
in paragraph 47 above that the Government publishes, with statutory
authority, a list of 'safe third countries'. We believe that it
would be an important safeguard if the Government were to publish
and regularly update a list of those countries for which a voluntary
resettlement programme is in place.
50 Appendix, p 27 below Back
51
Ev 17 Back
52
Ev 26 Back
53
Ev 28 Back
54
Ev 42 Back
55
Ev 33 Back
56
Q 869 Back
57
Q 870 Back
58
Q 872 Back
59
Ev 44-45 Back
60
Explanatory notes to the Bill, para 137 Back
61
R ('T') - v - The Secretary of State for the Home Department,
on appeal from Maurice Kay J, before Lord Justice Kennedy, Lord
Justice Peter Gibson and Lord Justice Sedley, 23 September 2003. Back
62
Ev 18 Back
63
Q 870 Back
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