Home Affairs Committee

Executive Summary

1. This further response, which is in addition to our support of the separate joint response, provides additional information on the asylum system from a local authority perspective. Therefore we focus particularly on the potential benefits of taking a multi-agency approach to assessing the credibility of vulnerable clients, on the asylum support system and on the prevalence of destitution among those in the asylum system, with a particular emphasis on safeguarding children.

2. We understand that the UK Border Agency’s work will shortly become part of the function of the Home Office. For this response we have used ‘UKBA’ to refer to the responsible agency in asylum cases, but our recommendations would apply equally to the successor agency.

3. In summary, we would recommend:

(a) To ensure a durable solution for children’s asylum claims the UKBA should consider automatically issuing removal directions to families after the window for appealing a refused claim has passed. These families would then enter the returns process.

(b) The UKBA should work with the Strategic Migration Partnerships (SMPs) to improve local consultation in relation to dispersals, to enhance the information available about local services and minimise the detrimental impact on local communities of sudden increases/decreases in population

(c) No child should receive s.4 support when s.95 rates are higher, even those born to a person with a refused asylum claim, and all children receiving asylum support should be eligible for free school meals

(d) The Azure card system for s.4 should be replaced with cash support equivalent to s.95 support

(e) Asylum support should be calculated in a way that is shown to meet basic needs and is linked to the real cost of living, such as the retail price index

(f) If asylum support is kept at a lower level that minimum state benefits because it is designed to be temporary then consideration should be given to increasing it after six months and/or giving asylum seekers the right to work after their claim has been pending for six months

(g) A mechanism should be introduced to make decisions relating to asylum support rates more transparent and accountable

(h) Before asylum support can be withdrawn from a family there should be a hand-over, so no child is left homeless; to do otherwise seems to breach the UKBA’s s.55 safeguarding duty

(i) s.55 Borders, Citizenship and Immigration Act 2009 should be extended to include ‘care leavers’ within the UKBA safeguarding duty and better reception arrangements should be required for care leavers if they are returned to their country of origin

(j) Vulnerable adults should only be dispersed to areas where there are suitable services for them

(k) Where vulnerable adults are transferred to local authority care there should be a proper handover process; support should not simply be withdrawn

(l) Better multi-agency working, ideally through the NRPF Connect database, would improve evidence on the credibility of vulnerable adults as part of the decision-making process and could form part of decisions on whether to detain a refused asylum seeker

(m) The NRPF Network would encourage more creative thinking in relation to reception arrangements for refused asylum seekers who are nevertheless likely to be at risk upon return

Introduction

4. The NRPF Network is a national network of organizations focused on the statutory response to people with no recourse to public funds. The NRPF Network has over 2,300 members, from 175 local authorities, 235 voluntary sector organizations and a range of central government departments, police forces and NHS trusts.

5. The NRPF Network operates under the auspices of the Association of Directors of Adult Social Services (ADASS) and the Association of Directors of Children’s Services (ADCS) Asylum Taskforce. We bring together 10 regional NRPF Networks who meet periodically across the UK; we are directed by a Steering Group constituted by members who represent different regions in the UK.

6. The NRPF Network provides second tier support and practice guidance to advisers and social workers on the statutory duties to clients who have no recourse to public funds. We also conduct research and take up policy issues to present the views of our members to central government.

7. In March 2011 the NRPF Network conducted research into the pressure that supporting clients with no recourse to public funds places on local authorities. Our research covered 51 local authorities and found that these 51 local authorities supported around 6,500 people with no recourse to public funds at a cost of £46.5 million in the financial year of 2009/10. There is no reimbursement from central government in such cases.

8. Local authorities have statutory duties to support destitute children, families and unwell adults in certain situations (for example under s.21 National Assistance Act 1948 and s.17 Children Act 1989). Unaccompanied children with an asylum claim will be looked after by a local authority, who can then claim back a financial grant from the UKBA.

9. Where an asylum seeker is unwell (either an adult or child) to the extent that the local authority would have a duty to provide support, then the duty to provide this support, alongside accommodation and subsistence is placed entirely with the local authority.314

Section 55, Borders, Citizenship and Immigration Act 2009

10. This section creates a duty for the Secretary of State and the UKBA to have regard to the welfare of children when discharging functions in relation to immigration, asylum or nationality. S.55(1) states:

“The Secretary of State must make arrangements for ensuring that—

(a) the functions mentioned in subsection (2) are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom, and

(b) any services provided by another person pursuant to arrangements which are made by the Secretary of State and relate to the discharge of a function mentioned in subsection (2) are provided having regard to that need.”

Section 55 and asylum

11. Following recent case law such as ZH (Tanzania) v SSHD [2011] UKSC 4,315 there has been increased emphasis on individually assessing the best interests of children and their wishes in immigration cases. The mechanisms for referring unaccompanied asylum seeking children to local authorities work well in general and the Independent Family Returns Panel, a multi-agency panel which provides advice on individual return plans, is a significant step forward and an excellent model for safeguarding children.

12. However, the system of asylum support remains challenging for children. International law emphasises the need to find ‘durable solutions’ in children’s asylum cases, but these are simply not being found in the UK. For example between March 2011 and March 2012 665 families ‘entered the returns process’, but only 195 cases were decided that same year.316 Furthermore, in our experience a high number of families with refused asylum claims never have removal directions set against them and so never enter this returns process at all.317

13. We understand that the UKBA has guidance allowing them to fast track issuing removal directions where a family is involved and/or the client is being supported by the local authority,318 but none of our members have ever related that they have experienced this taking place in practice.

14. Instead what very often happens is that families with a refused asylum claim live in the UK unlawfully until their children have resided here long enough that they have such a strong private life in the UK that they are granted leave under Article 8 ECHR (most likely to be granted after the children have been here for seven years).

15. To survive during this time, families may take on illegal work, stay with friends and relatives, even in very difficult circumstances, or—where they cannot be expected to return to their country of origin for some reason—receive very basic subsistence from the local authority (under s.17 Children Act 1989). We understand that ensured removals, particularly for families, can be very costly. However, even the high cost of the removals process is probably cheaper or no more expensive to the public purse than years of local authority support and repeated immigration applications.

16. The NRPF Network would strongly support improvements to the removals process, where families are automatically issued with removal directions and entered into the removals process once the window for appealing an asylum refusal has come to an end. This would provide a durable solution to children’s asylum cases and prevent years of uncertainty and poverty for children with refused asylum claims in the UK.

Dispersal

17. It is astonishing that the UKBA does not consult with local authorities more regarding the choice of dispersal areas and the numbers of asylum-seeking families dispersed to each area. It is clearly in the interests of dispersed asylum seekers to have appropriate services available for them locally (including advice and support services and specialized counselling services) and these take time to build up, whether by NGOs in response to need or with the support of the local authority.

18. Moreover, the impact on the local area of a huge influx of new people is huge. We have heard from members of the Network based in Newport that there has recently been inadequate preparation of the local community for asylum dispersal, which has increased social divides and resulted in high levels of hate crime targeted at anyone living in what is perceived to be asylum support accommodation.

19. At the same time, we have heard from members in Newcastle that the number of asylum seekers dispersed to Newcastle has recently dropped sharply. Sudden drops in the number of dispersed families has a big impact on statutory services, for example a local primary school may have less than a thousand school places in total so a sudden rise or drop in the number of dispersed families can put a school in real crisis and have a negative impact on the local community.

20. We would recommend that the Strategic Migration Partnerships (SMPs), which we understand are funded by the UKBA in all regions (except at present the North East), are given the tools to effectively consult with local authorities on asylum dispersal. Decisions on dispersal should give greater recognition to multi-agency concerns. A more joined-up approach would take into account additional costs in public money that may be required where there are plans to change the numbers dispersed to a particular area. At present it seems like the cost of housing is the overriding consideration when contracts related to asylum support are put out to tender.

21. A record of local services collated by the SMPs would also ensure that asylum seekers with more specialised needs (for example survivors of sexual violence or child abuse) are only dispersed to areas where there are services to adequately meet their needs.

Asylum support and destitution

22. The NRPF Network supports the recent findings of the Parliamentary Inquiry into Asylum Support for Children and Young People319 and in particular we would support the recommendation that no child should receive s.4 support, even children born to a refused asylum seeker, since there has been a recognition that it is more appropriate for children to receive s.95 support. The expensive and demeaning Azure card system should be abolished.

23. One example looked at by this inquiry was a case where a mother who had just given birth had to leave hospital and carry her newborn home in the snow, because she could not pay for bus fare with the Azure card provided under s.4 support. In our experience, primarily as local authorities providing subsistence support to destitute people, transport is an ongoing issue because it can be disproportionately expensive compared to food.

24. Many local authorities will have some flexibility in relation to one-off transport costs, if they can be justified by the client to their social worker, but there is no such flexibility with asylum support. In this context the card system causes unnecessary hardship to already very poor people.

25. In a recent case the German Constitutional Court found German asylum support rates to be unconstitutional. The Court’s summary of the case states: “Even if one would not consider the benefits as evidently insufficient, the benefits were not based on a constitutionally acceptable method to assess basic needs”.320

26. The same is true in the UK. Asylum support rates are set significantly below the calculated minimum subsistence of Jobseeker’s Allowance, even allowing for the fact that some bills are paid directly by the UKBA. Even if asylum support rates are not ‘evidently insufficient’, they appear to be calculated in an arbitrary way, not aligned in any way with the real cost of living, such as the Retail Price Index.

27. While it may be rational to maintain a national rate for asylum support, rather than taking into account complex regional fluctuations in living costs, it is still vital that asylum support rates meet basic living costs for recipients, since enforced destitution by the state of a person they have a duty to support can breach Article 3 of the Human Rights Act 1998, by amounting to inhuman and degrading treatment.321

28. The High Court in R (VC and others) v Newcastle City Council [2011] EWHC 2673 even went so far as to hint that a local authority could be required to step in if asylum support (particularly s.4 support) was too low to meet a child’s needs. In our view this would place local authorities in an unacceptable position.

29. One justification for the lower level of asylum support rates compared to state benefits is that they are only supposed to be temporary support. It may be that some everyday expenses, such as trips to the hairdressers, buying a new pair of trainers or visiting friends and family, can be expected to wait while an asylum claim is decided. However, many asylum applications take more than six months to decide and there are some clients (such as those who physically cannot return to their country of origin) who receive s.4 support for years at a time, on an apparently indefinite basis.

30. The current support rates do not recognise the cumulative impact of living in poverty, particularly on children. For children, having very cheap clothes and food, inadequate school uniform and no money for extra-curricular activities over a long period of time can lead to them feeling increasingly marginalized, distressed and puts them at risk of bullying. Furthermore longer-term poverty can significantly affect a child’s development.322

31. Children receiving s.95 support are eligible for free school meals (and the accompanying pupil premium), but children receiving s.4 support are not. When we recently asked our members about the effect of this difference on children we were told that children in this position find it very upsetting to be treated differently from their friends. We understand that because of this, local authorities in Cardiff and Newport use their discretion under the Children Act 1989 to provide free school meals to all children in the asylum system, to avoid what can be seen as punishing children for the actions of their parents.

32. We would recommend that current support rates are reviewed so that they can be justified against the actual cost of living in the UK. If asylum rates continue to be set at a lower level than the calculated minimum cost of living for a British resident (eg the rates that Jobseeker’s Allowance are calculated at) then it may be that after six months asylum support rates should increase to recognise that the support is no longer ‘temporary’.

33. The NRPF Network supports the Still Human, Still Here coalition recommendation that after 6 months asylum seekers should be given permission to work. The right to work would promote the autonomy, dignity and self-respect of asylum seekers who, afterall, are hoping to gain a right to reside in Britain in the future.

34. At present there is very little oversight of s.95 and s.4 asylum support, because these are regarded as residual powers of the Home Secretary. In our view there is a desperate need for improved transparency and accountability in this area. To resolve this problem asylum support rates could be made an official function of the UKBA/Home Office and/or a mechanism could be introduced under which the responsible officer would be required to regularly report on and justify asylum support rates.

Destitution and ‘handing over’ support

35. In our view, the s.55 child safeguarding duty is equivalent to the local authority duties under the Children Act 1989 to promote and safeguard the welfare of children in a local area. When a client chooses to move to a new area, it may be that the local authority will hand-over their case to the new local authority. However, it will be for the local authorities to work together to ensure the family continues to receive proper, continuous support. Where a client who has previously had no recourse to public funds gets access to public funds, the local authority cannot withdraw support until the person has actually got somewhere else to go (ie until their benefits have actually arrived).

36. At present, there is no equivalent hand-over process when the UKBA withdraws asylum support, either because someone’s claim has been successful or has been refused. When accommodation provided as part of asylum support is withdrawn the family simply receives a notice telling them when they will be expected to leave the property.

37. This can create frightening gaps in provision for families who may not have had any previous contact at all with a local authority and who may experience additional barriers to accessing services (such as language barriers, limited ability to access transport due to poverty or fears of governmental departments). It is the view of the NRPF Network that the UKBA should be obliged not to withdraw support until a family with children has somewhere else to go (whether that is into social or private housing, to stay with friends or into social services support). Anything else seems likely to breach the s.55 child safeguarding duty.

38. In the UK children will not be left to sleep homeless, so a statutory agency will have a duty to provide support where the child has nowhere else to go. Therefore this interpretation of the s.55 duty should not place a great burden on the UKBA. However it could provide vital safeguarding for vulnerable families who can struggle to find the right place to go without a supportive referral. Since they may be the only statutory agency aware of the family and are already providing them with support, the agency responsible for safeguarding the children at this stage must be the UKBA.

Care leavers

39. Under the Children Act 1989 Parliament has recognised that young people leaving care (also known as former looked after children) are a more vulnerable group than other young people of the same age, who can usually be expected to draw on parental and community support structures. For some time the local authority has been a looked after child’s parent and so we accept that such a young person may require additional support going forward (until age 21, or 24 if in full time education).

40. On the other hand, asylum legislation simply treats all 18 year olds as adults in the same way. The NRPF Network recommends that the s.55 safeguarding duty is extended to cover care leavers. This is a distinct and easily identifiable cohort of young people and this would only require a very small amendment to s.55(6) where the meaning of children is defined. This would bring the s.55 safeguarding duty into line with that of local authorities.

41. Furthermore, by extending the s.55 duty to cover care leavers, better provision for this specific vulnerable group would be necessary in the returns process (so adequate reception arrangements would be needed, rather than simply leaving an unaccompanied 18 year old care leaver at an airport with no money and nowhere to go) and there would be statutory backing for the current pilots taking place to create tailored assisted voluntary returns packages for care leavers.

42. While delivering training to social workers, we have heard from a social worker in London about one of her cases, where a care leaver was returned to Afghanistan and was later killed. The boy had originally arrived in the UK as an unaccompanied asylum seeking child and his social worker felt the reception arrangements for him in Afghanistan left him in danger.

Vulnerable adults

43. Similar concerns relate to vulnerable adults in the asylum system, since adults with additional vulnerabilities may well be at higher risk of destitution in the UK and at higher risk upon return to their country of origin.

44. Where an adult is deemed suitable for dispersal, but has additional vulnerabilities, it is vital that they are dispersed to an area where appropriate services are likely to be available (for example those specialised to support torture survivors are primarily in London).

45. Where an adult appears to be too unwell for dispersal, or becomes unwell after dispersal, so that they would need some form of looking after by the local authority and would meet the criteria for support under s.21 National Assistance Act 1948, then again there should be a proper hand-over process. Support should usually not be withdrawn until a local authority assessment has been completed. In urgent cases the local authority can provide more appropriate accommodation on a temporary basis while the assessment is completed, but even then the UKBA should ensure that someone is expecting the client, before their asylum support is withdrawn.

46. Where the client’s vulnerability is relevant to their asylum claim (for example where a physical or mental condition is the result of torture or sexual violence) then the local authority’s assessment of the client is likely to be very valuable for the asylum caseworker. The social worker has the opportunity to meet the client many times, engage the client with different services and conduct a thorough needs assessment, which the asylum caseworker does not have the opportunity to do. Therefore we would press for increased multi-agency engagement where local authorities are encouraged and, where relevant, invited to provide evidence in asylum cases.

47. The NRPF Network has worked with the UKBA to develop a secure data-sharing database called NRPF Connect and so local authorities should be encouraged to provide key supporting information through this channel and the UKBA should be encouraged to ask for any information they believe would be helpful.

48. A multi-agency approach is particularly relevant where a vulnerable adult is detained in immigration detention. Some adults are detained for very significant periods of time and this can be inappropriate for very vulnerable clients. At a recent training day a social worker from London told us she had been supporting a client with a history of self-harm and mental health problems who had been arrested and detained, but had to then be moved to a hospital after a mental break-down. The first she knew of the client’s arrest was when she was contacted by his family and when she approached us she was asking how she could engage with the process to feed in evidence of his previous mental health conditions to avoid him being re-detained after release from hospital.

49. Bearing in mind that being refused asylum is not a crime, immigration detention is not intended as a punishment and, in our view, vulnerable clients should therefore be treated with a greater level of sympathy and care. We would recommend that the local authority should be informed promptly after a person has been detained in immigration detention in case there are any concerns about the client’s wellbeing. Information about health conditions and disabilities is sensitive data, but at the very least the local authority would be able to provide the information to the client to use if they wished to.

50. Finally, as with care leavers, we would strongly encourage better creative thinking about reception arrangements for vulnerable adults. At present the approach taken by asylum case workers is a binary one—either the person meets the criteria for asylum or they do not. However, there are many cases where in reality there is clearly a risk to the client, even if they do not quite meet the criteria for asylum.

51. For example, there are many cases where a woman seeks refuge in the UK having experienced serious domestic violence in her country of origin. If she is from a country where internal relocation for a single woman is very difficult then it is very likely she would be at risk on return. In some cases such a woman may be granted asylum or another type of leave, but in some cases she will be refused.

52. Instead of such a binary process, we would recommend that the UKBA has a duty to consider (even if only ‘consider’) whether adequate reception arrangements could mitigate the risk to the client. So in the circumstances above, they would have a duty to consider whether arrangements could be made for the woman to return to a specific well-regarded women’s refuge in her country of origin and whether that would adequately mitigate the risk.

53. As a further example. The NRPF Network recently had a call on our advice line regarding a South African care leaver whose asylum claim had been refused. She had claimed asylum on the basis of her sexuality and the court had found that, since South Africa’s constitution protected sexuality and there were some relatively secure LGB communities in South Africa, she would not be at risk of persecution.

54. However, from her social worker’s perspective, an 18 year old lesbian black girl with absolutely no money arriving at any airport in South Africa with nowhere to go would be at very high risk of harm. If adequate reception arrangements had been put in place (such as a hand-over to a care-leaver’s programme in Cape Town—which was what the NRPF Network recommended after some research) then this risk could be mitigated.

55. This would require better country of origin information, but this is an area where the UKBA is already doing some work through their Assisted Voluntary Return programme (currently run as the ‘Choices’ scheme through Refugee Action). The Foreign and Commonwealth Office has recently expressed interest in taking a cooperative approach to AVR so we imagine this is an issue they might also wish to engage on; perhaps an initial pilot could be jointly run.

Conclusion

56. From a local authority perspective, asylum legislation is set nationally and therefore asylum support also needs to be worked out nationally. There have been valuable recent innovations, such as NRPF Connect and the Independent Family Returns Panel, but we would encourage more multi-agency working and would strongly encourage better alignment between children’s welfare legislation (particularly the care leaver provisions) and immigration legislation.

57. Work should be done to challenge negative perceptions of asylum seekers in society, but in the meantime we need to make sure that those who seek asylum—the most vulnerable in our society—are treated with dignity and respect as individuals hoping to rebuild lives that have often been shattered by conflict and persecution.

NRPF Network

April 2013

©Parliamentary copyright

Prepared 11th October 2013