Joint Committee On Human Rights

Joint Committee On Human Rights Tenth Report

3 Access to Financial Support and Accommodation

67. In this chapter we review the entitlement and the quality of provision of support for asylum seekers and refused asylum seekers, and we consider evidence that Government actions have resulted in a high level of destitution among asylum seekers, both as a deliberate policy aim and because of administrative inefficiency.

Entitlement to support for asylum seekers and refused asylum seekers

68. In the following paragraphs we explain the complex statutory regime governing support to asylum seekers. This regime is also summarised in an Annex to this Report.

69. The legal basis for providing support to asylum seekers is Part 6 of the Immigration and Asylum Act 1999 ("the 1999 Act"). This has been amended by the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act"), the Asylum and Immigration (Treatment of Claimants etc) Act 2004 ("the 2004 Act") and the Immigration, Asylum and Nationality Act 2006 ("the 2006 Act"). An asylum seeker is entitled to "adequate, no-choice accommodation" and basic subsistence while their asylum claim is being processed (and for families, until they leave the UK). The National Asylum Support Service (NASS) was established in 2000 as part of the Immigration Nationality Directorate (IND) to administer asylum support. In 2006 IND announced that NASS no longer existed as a directorate. Because witnesses have referred to NASS and for ease of reference we have used the term NASS to refer to the part of IND which administers support for asylum seekers and former asylum seekers.

70. Asylum seekers and their dependants often arrive in the UK without money or anywhere to stay. To qualify for emergency support they must normally apply for asylum at the port of entry or in person at an Asylum Screening Unit (ASU). Emergency "initial accommodation" for newly arrived asylum seekers is provided as an interim measure under section 98 of the 1999 Act. It is usually in the form of full board in hostels, hotels or induction centres and is provided, to those who appear destitute, whilst the Secretary of State determines whether they qualify for the longer term support under Section 95 of the 1999 Act ("section 95 support"). Applicants must normally claim asylum in person, and have their claim processed at the Asylum Screening Unit (ASU) before any claim for support is considered. An asylum seeker who is pregnant, has a child or has care needs may attend the office of a voluntary organisation known as the One Stop Service to be admitted to emergency accommodation overnight or over a weekend until they are able to present themselves to the ASU. The support arrangements for unaccompanied asylum seeking children (UASCs) are different.

71. Section 95 support is provided to asylum seekers aged over 18 and their dependants when their asylum claims have not yet been finally determined and they would otherwise be destitute or likely to become destitute. "Destitute" means that they do not have adequate accommodation or support for themselves and their dependants for the next 14 days. The support can be in the form of accommodation and subsistence, accommodation only, or, for those staying with friends, family or other third parties, subsistence only. It is provided in the form of "no-choice" accommodation in a dispersal area and cash subsistence is set at 70% of the income support level for adults and 100% for children. Section 95 support is provided subject to various terms and conditions, and may be suspended or discontinued in various circumstances if an asylum seeker fails to comply with the conditions of their support (for example if they allow a destitute asylum seeker to share their accommodation). Any decision to refuse or withdraw section 95 support before it would otherwise have come to an end attracts a right of appeal to the Asylum Support Adjudicators (ASA).

72. A refused asylum seeker who is destitute and unable to leave the UK due to circumstances beyond their control can claim support under section 4 of the 1999 Act ("section 4 support") if he or she meets one or more of the conditions set out in the Immigration and Asylum (Provision of Accommodation to Failed Asylum Seekers) Regulations 2005, that is if he or she:

is taking all reasonable steps to leave the UK (this usually means signing up with the International Organisation of Migration (IOM) to arrange a voluntary return home);

is unable to leave the UK due to a physical impediment to travel or other medical reason (such as late stages of pregnancy);

is unable to leave the UK because in the opinion of the Secretary of State there is currently no viable route of return;

has been granted permission to apply for judicial review of the asylum decision;

In addition, section 4 support may be provided if it is necessary in order to avoid a breach of a person's Convention rights (this usually means they have made a fresh claim for asylum based on new evidence).

73. Section 4 support is normally provided in the form of shared self-catering accommodation and £35 per person per week in vouchers to meet food and essential living needs, or as full-board accommodation. The continued provision of support is dependent on review to establish that the eligibility criteria still apply and upon the person complying with reporting conditions and specified steps to facilitate his departure from the UK, specific standards of behaviour and continued residence at the authorised address.

74. Section 10 of the 2004 Act added a regulation-making power to section 4 in order to specify the criteria to be used in determining whether or not to continue providing section 4 support. The regulations give the Secretary of State the power to require section 4 claimants to carry out activities on behalf of the community as a condition of continued support.[74] In its consideration of the Asylum and Immigration (Treatment of Claimants, etc) Bill, our predecessor Committee was of the view that section 10 would amount to a breach of the prohibition on forced labour as well as unmitigated discrimination on grounds of nationality, and called on the Government to repeal it.[75]We agree with that conclusion but we do not deal with the issue in this Report because the Home Office told us that "as no arrangements to allow relevant community activities to be undertaken are in place the performance of community activities has not been made a condition of support to date".[76]

75. Under section 21 of the National Assistance Act 1948 ("the 1948 Act"), local authorities have a duty to provide residential accommodation and associated support ("section 21 support") to an adult asylum seeker who is in need of care and attention due to old age, ill health, disability or other special reason. Section 54 and Schedule 3 of the 2002 Act restrict this duty by preventing local authorities from supporting those who are "unlawfully in the UK" unless services are needed to avoid a breach of Convention rights. The Administrative Court has recently decided that a refused asylum seeker is lawfully in the UK if he claimed asylum "on arrival" and has temporary admission.[77] Otherwise a refused asylum seeker with care needs is only entitled to section 21 support if it is necessary to avoid a breach of his human rights (for example if he has a new asylum or human rights claim). Local authorities have a duty to conduct a community care assessment, upon application, under section 47 of the National Health Service and Community Care Act 1990 where it appears that a person may be in need of services. The local authority then decides if that person's need requires any such service.

76. Local authorities have a duty of care under the Children Act 1989 to provide suitable housing and support for unaccompanied asylum seeking children (UASC). The Home Office does not support UASC directly but currently funds local authorities to provide appropriate support and care under provisions in the 1989 Act. Local authorities have the same duties of care to these children as they do to other children in need, including British citizens and other permanent residents.

Permission to work

77. If an asylum seeker has waited a year for an initial decision, he or she may apply for permission to work. However, whilst the majority of asylum claims are now determined promptly, appeals may be outstanding for 12 months, but delayed appeals attract no corresponding right to apply for permission to work.[78]The Home Office expects to take up to five years to clear the backlog of 'legacy' asylum cases[79] (those cases where asylum has been refused but removal not yet effected) and we have heard evidence that there is a significant number of refused asylum seekers who are unable to return to their country of origin in the medium or long term (for example Palestinians with no travel documents).[80] Refused asylum seekers may not apply for permission to work, even if they are unable to return to their country of origin.

Administrative barriers to receiving support

OBSTACLES TO CLAIMING ASYLUM IN PERSON

We had a man arrive on the Friday before Bank Holiday in May. He was sent by Leeds Immigration office to our office. There was no charitable accommodation available. He was almost turned away with nowhere to go but eventually an occupied house which belonged to a friend of a staff member was found where he could stay for the weekend. We paid for him to travel to Liverpool to claim asylum" Refugee Council Leeds.Inter-Agency Partnership

78. An asylum seeker who does not claim asylum at port of entry must lodge a claim at an Asylum Screening Unit (ASU) within three days of arriving in the UK, if they are to be eligible for support. There are only two ASUs in the UK, one in Liverpool and one in Croydon, both of which are open from 9am to 1pm on normal working days. Witnesses, including the Inter-Agency Partnership (IAP),[81] argue that the limited geographical presence and opening hours make it difficult for those attempting to lodge a claim.[82] Newly arrived asylum seekers often have no means of support until they can get to an ASU, and are reliant on charitable donations to fund their journey (including overnight accommodation and meals).

79. Refugee Action explained that although Home Office best practice advice is that Immigration Officers should make every effort to attend to people who present themselves at a police station to claim asylum, the reality is that they are usually only able to do so for the most vulnerable applicants (who may then receive emergency section 98 support) and that others must wait until they have attended an ASU.[83] Refugee Action added that local police stations rarely allow people to wait there, so those who are not attended to by an Immigration Officer are routinely turned onto the streets, for the lack of anywhere else to go, with no means or knowledge to travel to the ASU:

80. Refugee Action stated that the difficulties encountered in trying to reach an ASU "increases the likelihood of clients disappearing without engaging in the asylum process, as they simply may not make it to an ASU" and recommended that the facility to provide one night's emergency accommodation and subsequent travel to an ASU which is available to vulnerable groups should be extended to all single asylum applicants.[85]

81. People who are attempting to claim asylum and support encounter significant practical difficulties because of the limited accessibility of Asylum Screening Units. These difficulties may discourage people from engaging in the asylum process and cause severe hardship for claimants with no resources. We recommend that the Government improves facilities for claiming asylum and provides locations for claiming asylum and support throughout the UK.

IND delays and errors in processing applications

82. We heard evidence of delays in the processing of applications for support which have left people who have a valid entitlement to support with no money or housing. Citizens Advice point out that given the dependency of asylum seekers on support, the impact of casework errors and any delay in their resolution are severe and that whilst some are helped by other asylum seeking friends "it is clearly unacceptable that vulnerable individuals should have to rely on other, equally vulnerable individuals, to the obvious hardship of all concerned".[86] They gave details of a case where, despite the intervention of the local Citizen's Advice Bureau, a single woman was without any support for 8 weeks.[87] The British Red Cross Society reported a case where a mother was without support for over a fortnight.[88]

83. We have heard many examples of such delays and errors. IAP reported that "in the first quarter of the 2006/07 financial year the IAP agencies saw 3,170 clients who, while eligible for Home Office asylum support, had been made destitute as a result of weaknesses in the administration of asylum support in the Home Office".[89] IAP told us that support to asylum seekers was sometimes erroneously terminated by IND (the Refugee Council in Leeds reported that it saw three to four terminations in error every week) and that "the time taken to rectify this mistake can be prolonged, causing significant hardship to asylum seekers who have no other means of support". For example:

84. We have heard countless examples of Home Office inefficiencies in processing support claims, with severe consequences for desperate, vulnerable people who have no other means to support themselves. There is an urgent need to improve the operational performance of the Home Office where decisions are being made about support for asylum seekers. The institutional failure to address operational inefficiencies and to protect asylum seekers from destitution amounts in many cases to a failure to protect them from inhuman and degrading treatment under Article 3 ECHR.

Advice about entitlement to support

85. The regulations setting out asylum seekers' entitlements to support are complicated. Witnesses told us that the advice provided for asylum seekers to explain their entitlement to support or to deal with administrative difficulties was often inadequate. The Law Centre (NI) suggests that there is increasing uncertainty about the future provision of services to asylum seekers within Northern Ireland where there is no local office; there is currently no IND public enquiry office in Northern Ireland, and the existing NASS agent in Northern Ireland will discontinue its services to asylum seekers from the end of March 2007.[91] The Law Centre (NI) believes that the provision of the full range of Home Office services to asylum seekers in Northern Ireland, including the establishment of a public enquiry office, is vital to meet the needs of asylum seekers in Northern Ireland.

86. We note that the Home Secretary has announced that NASS no longer exists as a directorate and that support issues for new asylum applicants will instead be dealt with by New Asylum Model (NAM) case workers.[92] Under the NAM system, asylum support functions as well as asylum determination will become the responsibility of a single, dedicated caseowner. In the Home Office announcement of the roll out of the casework approach, it stated that "case owners are responsible for all key aspects of the process - from interview, decision, the appeals process, support issues, documentation and maintaining contact to integration, voluntary return or removal."[93] Citizens Advice commended the recent "steady and substantial improvement in the accessibility, service delivery and overall performance of NASS" but voiced concerns about the seemingly rapid pace of transition to NAM and the "resultant incomplete preparation and prior training of staff".[94] The Minister told us that a NAM caseworker will receive eleven weeks of asylum training,[95] but it is not clear to us whether sufficient training will be provided on asylum support and whether there will be an adequate provision of advice for applicants. The twelve volume Case Owner's workbook which is the current training manual for case workers has only three pages which briefly describe support entitlement.[96] The summary of entitlement to section 4 support in the NAM Case Owner's workbook does not explain that refused asylum seekers may qualify for section 4 support if they have made a fresh asylum claim or applied for judicial review.

87. We welcome the development of the New Asylum Model (NAM) which has the potential to improve the timeliness of decision making and the quality of support to asylum seekers and refused asylum seekers. However, we are concerned that the Home Office has yet to ensure that NAM caseworkers receive adequate training about asylum seekers' entitlement to support. We recommend that the capacity of NAM is closely monitored whilst it is assuming responsibility for support provision. We also recommend that the Home Office reviews arrangements for the provision of advice and information to asylum seekers and their representatives, both during the applicant's asylum claim and during the transition to mainstream support after asylum is granted.

Support for asylum seekers

SECTION 55 OF THE NATIONALITY, IMMIGRATION AND ASYLUM ACT 2002

A young Somali woman was denied subsistence-only support under Section 55. The reasons were very trivial - such as getting the date of entry into the UK slightly wrong. Inter-Agency Partnership

88. Section 55 of the 2002 Act came into effect in January 2003 and provides that asylum support under sections 4, 95 and 98 of the 1999 Act can be denied if the Secretary of State is not satisfied that the asylum claim was made as soon as reasonably practicable after the person's arrival in the UK. Section 55 does not prevent support being provided to those with dependent children or with particular care needs. The Home Office told us that its initial presumption was that prospective asylum claimants should apply immediately on arrival at their port of entry unless there were good reasons for not doing so, but that this policy was refined with effect from 17 December 2003. From that date it was accepted that an asylum seeker who arrived within the previous three days and had no opportunity to claim asylum within that time would be treated as having claimed as soon as reasonably practicable.[97]

89. Our predecessor Committee expressed its concerns about the section 55 provisions[98] and concluded that there was a significant risk that they would lead to a violation of the rights to an adequate standard of living,[99] to be free from inhuman and degrading treatment,[100] and to respect for private life.[101] IAP told us that "throughout 2003, 64 per cent of asylum seekers referred for a section 55 decision were denied support.This amounted to 9,415 individual asylum seekers who received no form of government support whatsoever".[102] By October 2003, section 55 cases amounted to a quarter of all the judicial review cases lodged in the High Court and 800 cases were being processed.[103] Following a series of court cases, the House of Lords was asked to consider the effect of section 55 in the case of Limbuela.[104] The court heard evidence that there was insufficient charitable help to meet the needs of a growing number of destitute asylum seekers. In the leading judgment, Lord Bingham said:

"A general public duty to house the homeless or provide for the destitute cannot be spelled out of Article 3. But I have no doubt that the threshold may be crossed if a late applicant with no means and no alternative sources of support, unable to support himself, is, by the deliberate action of the state, denied shelter, food or the most basic necessities of life …"

90. It is clear from the judgment that where an asylum seeker has insufficient access to shelter, food or washing facilities, then the Article 3 threshold could be reached. The Home Office stated that since the Limbuela judgment, it does not refuse support under section 55 to anyone who does not have some alternative source of support available, including overnight shelter, adequate food and basic amenities.[105] It added that since a person falls to be refused under section 55 only if he could reasonably have been expected to claim asylum earlier than he did, it follows that any person who has acted reasonably will not be denied support.

91. Witnesses told us that while support is being provided to homeless applicants, section 55 provisions are being used to refuse cash-only support claims from applicants with accommodation (such as staying with friends).[106] The Minister confirmed to us that section 55 was being used in subsistence-only cases.[107] IAP acknowledges that while the Limbuela judgment addressed many of its concerns, it considers that "the continued application of section 55 for subsistence-only claims potentially breaches an applicant's rights under both ECHR Article 3 and ICESCR Articles 9 and 11".[108] Home Office published statistics indicated that whilst there has been a considerable reduction in the number of asylum seekers refused support under section 55, there were still 895 people who were refused support under section 55 during 2006.[109]

92. The continued use of the section 55 provision to deny support in subsistence-only cases leaves many asylum seekers reliant on ad hoc charitable support and with no regular means of providing for their basic daily necessities. We believe that this treatment does not comply with the House of Lords Limbuela judgment, and is in clear breach of Article 3 ECHR. We recommend that section 55 be repealed.

SECTION 9 OF THE ASYLUM AND IMMIGRATION (TREATMENT OF CLAIMANTS ETC) ACT 2004

The families we worked with were desperate and terrified. Over a third of the adults had health problems, and eighty per cent had significant mental health needs, ranging from diagnosed psychiatric disorders to people so distressed they wept throughout our advice sessions. Many families disappeared, and those who remained in their accommodation were barely able to survive: liable to eviction at any time, dependent on one off payments from their local authority and food parcels from charities. We believe that at least four children were placed in local authority care as a consequence of the policy. Refugee Action

93. A refused asylum seeker with a dependent child is normally entitled to continue receiving section 95 support until the child reaches the age of 18. This was changed by section 9 of the 2004 Act, which provides that support may be withdrawn from these families if they are considered to have failed to take reasonable steps to leave the UK voluntarily. The Home Office has stated that the use of section 9 is intended to act as an incentive for the family to return voluntarily before removal is enforced.[110] Families whose asylum support has been withdrawn are ineligible for assistance from local authorities, although local authorities may use their statutory powers to take children into care. Before section 9 was introduced our predecessor Committee argued that the lack of a sufficiently robust section 9 process might lead to human right violations.[111] The Committee concluded that:

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94. In January 2005, the Home Office began a pilot implementation of section 9 in three areas (Croydon/East London, Manchester and Leeds/Bradford). The pilot ended in December 2005, although families whose support was withdrawn during the pilot did not have support reinstated when the pilot ended. The Minister told us that although the evaluation of the pilot was now complete, he was unable to say when the evaluation report would be published because he wished first to develop his conclusions for future policy.[113] We heard evidence that in the meantime a number of the families whose support was withdrawn by the original pilot remain in limbo and in some cases destitute. The Immigration Minister told us that he had not been notified of any children having been taken into care as a direct result of the pilot,[114] but this contradicted information provided by Refugee Action, that four children of families involved in the pilot had been taken into care.[115]

95. The Refugee Council was one of the agencies funded by NASS to do outreach work with the families as part of the process of evaluating the section 9 pilot. Together with Refugee Action, it published a report "Inhumane and Ineffective" on the result of the pilot in January 2006, stating that of the 116 families involved in the pilot, 32 appeared to have left their accommodation without informing the Home Office or the local authority of their whereabouts.[116] The Refugee Action report estimated that as many as 80% of the families in the pilot included a parent with a mental health need, such as post-traumatic stress disorder. The North West Consortium (East) sent us a submission describing the experiences of the eleven local authorities in the Manchester area which were involved in the section 9 pilot.[117] Its own conclusion was that "the pilot appears to have failed in achieving its stated aims". It stated that:

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96. Other witnesses shared the view that section 9 was incompatible with human rights standards and called for it to be repealed. The Refugee Council believed that section 9 was "extremely damaging for children and families and unnecessary for the purposes of immigration control".[119] Liberty's view was that section 9 constituted a severe interference with the right to respect for family life guaranteed by Article 8 ECHR and a violation of the rights protected by the CRC.[120] IAP opposed section 9 "as an inhumane and unworkable policy":

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97. The section 9 pilot has caused considerable hardship and does not appear to have encouraged more refused asylum seeking families to leave the UK. We urge the Government to publish the results of the pilot without further delay. We believe that using both the threats and the actuality of destitution and family separation is incompatible with the principles of common humanity and with international human rights law and that it has no place in a humane society. We recommend that section 9 be repealed at the earliest opportunity.

AVAILABILITY OF LEGAL REPRESENTATION FOR THE ASYLUM SUPPORT APPEAL PROCESS

98. If the Home Office decides to refuse or withdraw asylum support, claimants have a right of appeal to the Asylum Support Adjudicators, a tribunal based in Croydon. There is no legal aid available for representation at such tribunals, although the prospects of success are higher for represented appellants, and asylum seekers often find it difficult to obtain advice about the appeal process. Individuals have no right to accommodation or support whilst awaiting the appeal hearing and so may be without any support for the week or so before the hearing. Although travel expenses can be claimed, it is difficult for homeless asylum seekers who speak no English to attend a tribunal where they will be unrepresented.

99. The absence of provision for representation before the Asylum Support Adjudicators may lead to a breach of an asylum seeker's right to a fair hearing, particularly where an appellant speaks no English, has recently arrived in the UK, lives far from Croydon and/or has physical or mental health needs. Where an appeal fails, and as a result of the unavailability of legal representation an asylum seeker is left destitute, the result may also be a violation of Article 3 ECHR. We recommend that the Government should make legal aid funding available for representation before the Asylum Support Adjudicators. Where needed, assistance with accommodation as well as travel costs involved in attending an appeal should also be provided. We heard evidence that suggested in some cases this assistance was not being given.[122] In our view it is a priority that appellants receive accommodation and subsistence for the hearing.

IMMIGRATION ADVICE AND REPRESENTATION

100. A related problem which was emphasised by a number of witnesses was the inadequate provision of immigration advice about the asylum claim and the quality of Home Office decision making about the asylum claim[123]. Refugee Action was concerned that "for many asylum seekers, restrictions on legal aid entitlement and a lack of access to legal provision are significant contributory factors leading to destitution".[124] It pointed out that since April 2004 there had been a maximum legal aid entitlement of five hours for the time allowed to prepare an initial application to the Home Office, and that any further funding was merit-tested by the Legal Services Commission. It reported that in every region in which it worked, specialist immigration solicitors had been forced to reduce capacity or close as a direct result of the cuts, and stated that it was "concerned that applicants who could have been granted refugee status are being refused and are unable to appeal" and that "many (applicants) complained about poor standards of interpretation (at the initial application stage) which they believed had damaged their case and prevented them from receiving a fair hearing".[125] As part of a wider research study, Refugee Action commissioned two experienced immigration lawyers to assess the merits of respondents' cases: the lawyers identified up to 70 per cent of cases they believed would merit further examination by a specialist immigration lawyer.

101. We are concerned that the shortage of competent immigration advice and representation may indirectly result in destitution.

INADEQUATE HOUSING

We believe that in some cases asylum seekers are now living in housing which is of a lower standard and for longer periods than British families. Often this accommodation is not scheduled for significant improvement. In Glasgow investment in our homes is minimal because it is due for demolition. Scottish Refugee Policy Forum

102. In general the level of section 95 financial support appears to be adequate, but there is evidence that the quality of section 95 accommodation is unsatisfactory and falls short of the Article 8 ECHR right to respect for home, family and private life. The Scottish Refugee Policy Forum described a very poor level of accommodation in Scotland, where asylum seekers were housed in tower blocks awaiting demolition and essential repairs were not carried out.[126] The Home Office told us that it took care to ensure that any decision to allocate a person with accommodation in a particular area was reasonable and that if an applicant required a specific support network (such as specialist medical treatment) in a particular area it might decide not to disperse him from that area.[127] It added that section 95 accommodation had to meet "a strict specification" from the IND to ensure that it was appropriate and that it was subject to monitoring to ensure the standards are maintained. It stated that where problems were identified they were addressed promptly.[128] However, research commissioned by the Home Office suggested that some asylum seekers were being dispersed to areas where they would be subject to hostility and prejudice.[129]

103. The Scottish Refugee Policy Forum told us that asylum seekers were subjected to frequent moves which interrupted their children's education and public examinations and made it more difficult for them to integrate into the community.[130] Such moves conflict with the UK's obligations under the EU Reception Directive, Article 14(4) of which provides that member states shall ensure that "transfers of applicants from one housing facility to another shall only take place where necessary". The Scottish Refugee Policy Forum also described unannounced inspections of accommodation, which intruded into the Article 8 right to respect for privacy of asylum seekers, and could damage the psychological welfare of their children.

104. We consider that in some cases the quality and terms of accommodation provision under section 95 of the 1999 Act interferes with the rights of asylum seekers and their children to respect for family and home life under Article 8 ECHR, and the right to adequate housing under Article 11 ICESCR.

Support for refused asylum seekers (section 4 support)

ERRORS AND DELAYS IN PROCESSING SECTION 4 SUPPORT

105. IAP agencies reported that one of the main causes of destitution amongst their clients was the delay experienced in accessing section 4 support.[131] The Home Office told us that according to the most recent statistics, "50 per cent of cases where the applicant was street homeless or had a medical condition were considered within five days, and of the less urgent cases, the majority within 21 days of receipt".[132] This suggests that 50 per cent of street homeless applicants wait more than five days for a decision about whether or not they will be fed and accommodated, and may encounter further delays before accommodation is allocated. IAP told us that when an applicant's asylum claim was refused, he or she could be evicted from section 95 accommodation, even if it were clear that there would be automatic entitlement to section 4 support (for example because of pregnancy). Having been evicted, the individual would then have to apply for section 4 accommodation and face being moved to housing in another part of the UK. Citizens Advice suggested that "during 2005, inordinate delay and error in processing of applications and the delivery of section 4 support became commonplace".[133] The Scottish Refugee Policy Forum stated that "we have experience of individuals and families who have been made destitute for days and in some cases weeks because of faulty entitlement cards, false accusations of failure to report or other delays in processing mainstream benefit claims".[134] We have also received evidence of an unacceptably high error rate in the processing of applications for support.[135] A report by the Asylum Support Appeals Project recorded an error rate of 80 per cent in decisions on eligibility for section 4 accommodation during 2006.[136]

SECTION 4 VOUCHERS

A Chinese lady came to our office seeking help. Since the birth of her new born baby one week ago she had carried him 3 miles across town in a towel as she did not have a pram or any cash or bus fare. She was both exhausted and distressed by the situation. Inter-Agency Partnership

106. Refused asylum seekers on section 4 support receive no cash. Instead they receive supermarket or luncheon vouchers to the value of £35 a week (the income support level for a single able-bodied adult over 25 is £57.45.).[137] There is no entitlement to the maternity payment or the extra weekly "milk" tokens payment for pregnant and nursing mothers which is provided for those receiving section 95 support. The vouchers can be exchanged for food and toiletries but not for many other essentials. Witnesses told us that people dependent on section 4 vouchers were unable to obtain items such as winter clothing; necessities for babies (such as clothing); travel (such as to and from the supermarket and medical appointments, especially for those with limited mobility and for pregnant and nursing mothers); and phone calls to stay in touch with family members and legal representatives.[138] IAP provided many examples of the shortcomings of the voucher system, for example:

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107. The Home Office stated that section 4 support was intended as "a limited and temporary form of support" for people who were expected to leave the UK as soon as they were able to do so.[140] However, witnesses have said that in practice, many people were now surviving on this temporary benefit for far longer than was originally envisaged. For example, Citizens Advice estimated that the average length of time on section 4 support was nine months.[141] Reliance on section 4 support for the medium to long term, where the asylum seeker is unable to return home through no fault of their own, results in a number of potential human rights violations, particularly where the household includes a child. IAP told us that its agencies had "consistently opposed the use of vouchers for asylum seekers throughout the asylum process because they are inflexible, they stigmatise the user, and they are not cost effective".[142]

108. At present, the Government may only provide accommodation and related facilities such as food under section 4.[143] There is currently no power to provide items such as clothing or travel, even for pregnant and nursing mothers and their children. Draft regulations, circulated in May 2006,[144] would have given the Home Office power to provide for some additional items in kind, in fairly limited circumstances, but these regulations have not been introduced. The Home Office told us that it would be publishing a consultation on improvements it could make to the system of vouchers over the next few months, but indicated that there was no intention to replace or supplement vouchers with cash.[145]

109. When we asked the Minister whether shopping with vouchers in a supermarket was conducive to human dignity he could only offer the personal observation: "Actually in my constituency people do not really pay that much attention to that kind of thing".[146] Citizens Advice described the voucher system as inhumane and "incredibly inefficient", and recommended that it should be replaced with a cash benefit:

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Sheffield City Council agreed that the provision of vouchers was stigmatising for refused asylum seekers, and urged that instead they should be allowed to work, or failing that to receive cash at 100 per cent of income support levels:

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110. We consider the section 4 voucher scheme to be inhumane and inefficient. It stigmatises refused asylum seekers and does not adequately provide for basic living needs. There is no evidence that the voucher system encourages refused asylum seekers to leave the UK. We believe that the section 4 voucher scheme discriminates on the grounds of nationality, and could constitute a breach of Article 14 in conjunction with Articles 3 and 8 ECHR and of Articles 3 and 8 themselves. There are particular responsibilities towards women, especially relating to pregnancy and post natal treatment. In many cases these responsibilities are not being met and there is an immediate need to provide financial support for essential items not covered by the vouchers, including clothing, baby items, telephone costs and travel. We recommend that the Government extends section 95 support to section 4 applicants and abandons the voucher system.

HOUSING FOR REFUSED ASYLUM SEEKERS

A mother and father of a three week old baby were placed in a filthy, bug-infested room in Leicester [they brought some of the bugs into the local Refugee Action office to demonstrate their size]. The father is HIV positive. The family were dousing their bedding in Dettol and sleeping on wet bedding because they were so concerned about the bugs. Yorkshire & Humberside Consortium for Asylum Seekers and Refugees

111. Witnesses described very poor conditions in section 4 accommodation, which usually consisted of a shared bedroom and shared kitchen and bathroom facilities in a shared private rented house. They described examples where some of the accommodation was in very poor condition without proper heating, with ceilings falling down and no locks on bedroom doors in shared accommodation.[149] IAP considers that "in many instances, the accommodation provided to asylum seekers on section 4 support if of such poor quality that it causes sufficient suffering to constitute potential breaches of ECHR Article 3 and Article 11 of the ICESCR."[150] It provided some examples of the problems encountered with section 4 accommodation:

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112. Inadequate housing could give rise to a breach of a family's right to respect for family and home life under Article 8 ECHR, especially where a child is living there. We welcome the Home Office's assurance that it intends to standardise the accommodation contracts to make all section 4 accommodation of the same standard as section 95 accommodation by the end of 2007. We recommend that the Home Office puts in place measures to ensure that where accommodation is of an inadequate standard, urgent repairs are carried out or alternative accommodation is provided.

Support from local authorities for asylum seekers with care needs

Many authorities take an ad hoc approach and do not routinely carry out care assessments as required by law. Inter-Agency Partnership

113. We received evidence from local authorities and other witnesses that there are often disputes between IND and social services about who is responsible for accommodating asylum seekers with care needs.[152] The lack of clear guidance or Government funding has been an issue in a series of court cases, most of which have resulted in the local authority having to provide accommodation under s21 National Assistance Act 1948.[153] There is a particular problem in Scotland because English case law does not have the same binding effect. The Scottish Refugee Policy Forum told us:

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114. Section 21 assistance is usually provided in kind or in vouchers, leading to the potential human rights breaches described above in relation to section 4 support. By virtue of Article 17 of the EU Reception Directive, member states are required to take into account the specific situation of vulnerable persons such as disabled people when implementing the general provisions on reception conditions. In addition at paragraph 9 of the preamble, the Directive states "reception of groups with special needs should be specifically designed to meet those needs."

115. Mr Liam Byrne MP, Minister of State for Immigration, Citizenship and Nationality, advised us that Glasgow City Council did not accept that the Westminster[155] judgment applied in Scotland and that IND was therefore accepting responsibility for asylum seekers with care needs in Scotland.[156] We are concerned that this may result in discriminatory treatment for asylum seekers with care needs in Scotland, in breach of Articles 8 and 14 ECHR. There is no clear guidance reflecting recent court decisions regarding local authority responsibilities towards asylum seekers with care needs. We recommend that the Government issue new guidance setting out when local authorities have a duty to provide community care help to asylum seekers and refused asylum seekers and that it implements procedures to ensure that local authorities comply with this duty.

Destitution

Mary had been homeless for two years. She had one friend who would give her food and shelter a couple of nights a week in exchange for child care. The rest of the week Mary had to sleep rough. She was so scared of being attacked on the streets she used to sit at crowded bus stops throughout the night so she wouldn't be alone. Mary couldn't go back to her country because she had serious mental health problems which meant she was suicide risk and couldn't fly. Three months passed between her making her initial application for support and winning her appeal. … She was entitled to support from day one. ASAP report, Failing the Failed

116. Although there are no official statistics to indicate how many asylum seekers are destitute or street homeless, a number of empirical surveys have been carried out.[157] Refugee Action is increasingly concerned about the growing numbers of asylum seekers who are destitute and states that its caseworkers are encountering high levels of despair and desperation among their clients.[158] It carried out research between January and July 2006 by interviewing 125 destitute asylum seekers around the UK. One in three of their respondents were women, several of whom were pregnant or had children in the UK.[159] The research estimates that the destitution figure is as high as 20,000 households. On average those people interviewed had spent twenty-one months being destitute and 60 per cent of respondents had slept on the street on at least one occasion.

117. The British Red Cross Society has supplied destitute asylum seekers in the UK with food parcels and vouchers for essential items such as toiletries, and voiced its concern for the welfare of asylum seekers who have become destitute either because of bureaucratic delays or because their support has been withdrawn.[160] Between January and June 2006, nearly 3500 approached them in need of emergency relief from destitution. In nearly half of these cases, destitution was due to administrative delays.

118. During a recent one month "snapshot survey", the Scottish Refugee Council identified 154 destitute asylum seekers and refugees in Glasgow alone, including 24 children.[161] Liberty stated that "Without state assistance an asylum seeker will often be unable to provide for him/herself and to meet his/her basic needs. Given the shortage of voluntary assistance, s/he will often be forced into destitution, a degrading and dangerous life sleeping on the streets and begging for food. Such treatment may well amount to inhuman or degrading treatment, prohibited by ECHR Article 3".[162] ILPA agree, stating that "Enforced destitution has become an immigration control policy. It is the stick to inculcate timely asylum applications ... and to force failed asylum seekers to return to their homes".[163] We also heard about the effect of destitution on physical and mental health:

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119. Citizens Advice drew attention to the wider impact of such policy: "To our mind, it is simply unacceptable that Government policy and practice tolerates such homelessness and destitution, the resultant risk to the well-being of the men, women and children concerned, and the associated detriment to social cohesion and public policy more generally."[165] Refugee Action agreed, stating that it had become "increasingly concerned about the growing numbers of asylum seekers who are becoming destitute".[166]

120. We consider that by refusing permission for most asylum seekers to work and operating a system of support which results in widespread destitution, the treatment of asylum seekers in a number of cases reaches the Article 3 ECHR threshold of inhuman and degrading treatment. This applies at all stages of the asylum claim process: when an individual is attempting to claim asylum, during the period of consideration of their claim and during the period after their claim is refused if they are unable to return to their country of origin. Many witnesses have told us that they are convinced that destitution is a deliberate tool in the operation of immigration policy. We have been persuaded by the evidence that the Government has indeed been practising a deliberate policy of destitution of this highly vulnerable group. We believe that the deliberate use of inhumane treatment is unacceptable. We have seen instances in all cases where the Government's treatment of asylum seekers and refused asylum seekers falls below the requirements of the common law of humanity and of international human rights law.

121. The policy of enforced destitution must cease. The system of asylum seeker support is a confusing mess. We have seen no justification for providing varying standards of support and recommend the introduction of a coherent, unified, simplified and accessible system of support for asylum seekers, from arrival until voluntary departure or compulsory removal from the UK.

122. We recommend that the Immigration Rules be amended so that asylum seekers may apply for permission to work when their asylum appeal is outstanding for 12 months or more and the delay is due to factors outside their control. We recommend that where there is evidence that an asylum seeker will not be able to leave the UK for 12 months or more, he or she should be granted limited leave for a 12 month period with permission to work attached.

74 Immigration and Asylum (Provision of Accommodation to Failed Asylum-Seekers) Regulations 2005 SI no 930. Back

75 Fourteenth Report of Session 2003-04, op. cit. Back

76 Appendix 69. Back

77 R (AW) v LB Croydon and R (A,D and Y) v LB Hackney [2006] EWHC 2950 heard in Court of Appeal on 6 March, judgment reserved. Back

78 Appendix 69. Back

79 Q471. Back

80 Appendix 12. Back

81 An umbrella group consisting of six agencies: Refugee Council, Refugee Action, Migrant Helpline, Refugee Arrivals Project, Scottish Refugee Council and Welsh Refugee Council. It also reflects representations from subcontractors and refugee community organisations. Back

82 Appendix 67. Back

83 ibid. Back

84 ibid. Back

85 ibid. Back