Select Committee on Home Affairs First Report

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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Prepared 16 December 2003