Memorandum submitted by the Immigration
Law Practitioners' Association
INTRODUCTION
1. The Immigration Law Practitioners' Association
(ILPA) is a professional association with over 900 members, who
are barristers, solicitors and advocates practising in all aspects
of immigration, asylum and nationality law. Academics, non-government
organisations and others working in this field are also members.
ILPA exists to promote and improve the giving of advice on immigration
and asylum, through training, disseminating information and providing
evidence-based research and opinion. ILPA is represented on numerous
government and other stakeholder and advisory groups.
2. In this submission, we are concerned
to highlight the situation of children who are subject to immigration
control, including separated children and children in families,
or whose parents or primary carers are subject to immigration
control or who are A8 or A2 accession State nationals with limitations
on their entitlements to social assistance.
3. Our submission is in two main parts.
Firstly, we explore specific concerns regarding the Bill and its
relation to the children we highlight. Secondly, we briefly note,
by reference to earlier ILPA briefings and submissions where applicable,
examples of how poverty and socio-economic disadvantage may be
and is caused to these children. Thereafter, we include a short
conclusion. All the ILPA briefings and submissions referred to
in this submission remain available on our website at www.ilpa.org.uk
in the "Briefings" and "Submissions" sections
respectively.
PART ONE:
CONTENT OF
THE BILLUNEQUAL
APPLICATION OR
EXCLUSION
4. It is not clear to what extent the duties,
which would be established by the Bill, will extend to the group
of children we highlight. What is clear is that the measures in
the Bill, as currently drafted, would not extend equally to all
these children as to other children in the UK; and while some
measures certainly would apply to these children others may not.
We note that the current HM Treasury (October 2007) PSA Delivery
Agreement 9 to "Halve the number of children in poverty by
2010-11, on the way to eradicating child poverty by 2020"
does not include children of asylum-seekers.[13]
We consider this to be contrary to the UK's obligations under
Article 2 of the 1989 UN Convention on the Rights of the Child
("the UN Convention"), which requires States Parties
to respect and ensure the rights set forth in the Convention to
each child without discrimination. We are mindful that the UN
Committee on the Rights of the Child in its 20 October 2008 Concluding
Observations[14]
expressed concerns that asylum-seeking and refugee children experience
discrimination[15]
and would emphasise that these concerns extend beyond that group
to children in families subject to immigration control or of A8
or A2 nationals. These children should be protected by the legislation.
5. Clauses 2 to 5 of the Bill set out specific
targets relating to child poverty. These targets relate to "children
who live in qualifying households". As to what is to be a
qualifying household and the circumstances in which a child is
to be treated as living in a qualifying household, clause 6(1)(a)
and (b) provides that this is to be determined by regulations.
The Explanatory Notes indicate that these regulations will found
relevant definitions upon the Family Resources Survey and Understanding
Society survey. ILPA shares concerns expressed at Second Reading[16]
that the grouup of children we highlight may be excluded or largely
excluded from these surveys and hence from the intended targets.
6. If these concerns are realised, the UK
and devolved administrations' strategies would still, on the face
of the Bill, be required to have regard to these children but
solely in respect of the second of the two limbs of clause 8(2):
"(b) for the purpose of ensuring as
far as possible that children in the United Kingdom do not experience
socio-economic disadvantage."[17]
7. Clause 13(1)(b) would still require the
Secretary of State to report to Parliament on the progress made
to implement the strategy, including as to progress in relation
to the second of the two limbs. Nonetheless, there would seem
to be a risk that poverty affecting children to whom the specified
targets did not apply received less attention because the key
measures for assessing progress towards the eradication of child
poverty may be taken to be those targets.
8. Moreover, the Committee highlights clause
15, which requires that the Secretary of State and the Child Poverty
Commission have regard to economic and fiscal circumstances. There
is a related requirement upon the Scottish Ministers and relevant
Northern Ireland department. During the passage of the Bill, Stephen
Timms MP, Financial Secretary to the Treasury, observed:
"Clause 15 is not, as one or two Members
have suggested, a get-out clause. The only way of avoiding the
duty to meet the targets under the Bill would be to repeal the
legislation. Clause 15 is about how, not whether, the Government
meet the targets, in a value-for-money way that is consistent
with the needs of the wider economy."[18]
9. But this response is inadequate if the
targets do not apply equally to all children. If some children,
eg children among those we highlight, do not fall within the targets,
the UK (and Scottish and Northern Ireland) strategy will only
apply insofar as the second limb. Yet this limb only requires
measures to ensure "as far as possible that children ...
do not experience socio-economic disadvantage"; and hence
the reach of this limb may more readily be constrained by the
requirements in clause 15. This underlines the need for the targets
to cover all children within the jurisdiction.
10. The Committee raises the question of
strengthening the duty in clause 9(4)(c) by reducing the discretion
left to the Secretary of State to consult with children and organisations
working with or representing children. A similar question may
be asked in relation to the duty upon responsible local authorities
at clause 22(6)(a). Given the concerns that the targets to be
established by the Bill may not apply equally, or at all, to all
children in the UK, we would recommend that this duty is strengthened
so as to ensure that the strategy is informed by the needs and
situations of all children, including those we highlight. This
should be addressed by requiring that consultation include consultation
with children, in accordance with the UK's obligations under Article
12 of the UN Convention, and organisational representatives of
particular groups of children, including these children.
11. As regards the responsibilities of local
authorities and "partner authorities" toward reducing
child poverty in local areas, we are discouraged that, as was
the case when the duty to safeguard and promote the welfare of
children was introduced by the Children Act 2004,[19]
the UK Border Agency is not included among the individuals and
agencies listed in clause 19(2). Whereas clause 20(1)(c) requires
a local authority to make arrangements to promote co-operation
with "such other persons or bodies as the authority thinks
fit", the UK Border Agency (like the "partner authorities"
listed in the Bill) has a UK-wide remit and, by reason of its
policies and operations, clearly affects the socio-economic experiences
of children within the meaning of "child poverty" as
described at clause 24 (eg in providing for housing and financial
support to asylum-seekers, including asylum-seeking families;
through dispersal of asylum-seekers; and through its handling
and determination of immigration applications which will determine
children's and families' access to various services and benefits).
The UK Border Agency should be included in the list of agencies
in clause 19(2).
PART TWO:
CHILD POVERTY
AFFECTED OR
CAUSED BY
IMMIGRATION CONTROL
12. This Part of our submission highlights
circumstances where children who are affected by immigration control
may experience particular socio-economic disadvantage as compared
to other children in the UK. It does not seek to be exhaustive.
The key purpose is to highlight the breadth of circumstances in
which these children may face poverty, and hence the need to address
concerns as to the unequal application of the Bill to them.
13. Underlying the examples given is the
legislative and policy position that generally excludes persons
in the UK who are subject to immigration control, as well as certain
A8 and A2 nationals,[20]
from a range of social and welfare provisions, and which in relation
to specific groups of migrants restricts or denies permission
to work.[21]
This position is compounded by difficulties some migrants face
in accessing provisions to which they are entitled, demonstrating
their entitlements, moving from one immigration status to another
(where the type and/or source of available support may change),
facing delays in decision-making on their immigration applications
and securing fair and safe decisions on such applications.[22]
14. In March 2007, the Committee published
a report following an inquiry into the Treatment of Asylum Seekers.[23]
The Committee there highlighted several concerns related to socio-economic
disadvantage facing children seeking asylum, alone or in families.
We note that the Committee made several findings and recommendations
in relation to access to the asylum system (and therefore asylum
support), access to asylum support, the provision of asylum support
and the refusal of permission to work to asylum-seekers and refused
asylum-seekers. The concerns of the Committee have not in the
meantime been ameliorated, let alone removed. Recent developments
accentuate concerns:
The UK Border Agency's position on permission
to work for asylum-seekers and refused asylum-seekers has not
altered since its response to the Committee's report.[24]
The Government's intention not to opt-in to the revised Reception
Directive[25]
is in part determined by unwillingness to accede to the proposed
improved reception arrangements for permission to work for asylum-seekers
waiting for six months or more for decisions on their initial
claims.[26]
The Agency's response to the recent judgment of the Court of Appeal
requiring that permission to work be considered on application
by any refused asylum-seeker who has waited for 12 months or more
for a decision on his or her fresh asylum claim[27]
has been to decline to deal with applications for permission to
work by those who fall within the scope of the judgment while
the Secretary of State seeks to appeal to the Supreme Court.
Decisions taken on the levels for asylum
support for 2009-10 highlight a general risk to the support provided
to all, including families on asylum support or in receipt of
section 4 support.[28]
Asylum support has not generally been increased in line with inflation,[29]
and the reasons given by the UK Border Agency for these decisions
indicate that this is a response to pressure on the UK Border
Agency budget.[30]
Not only do these decisions put real pressure on the financial
circumstances of families now seeking asylum, they evidence the
ongoing insecurities facing families reliant on asylum support
in the future.
In a joint Memorandum to the Committee
in respect of its inquiry, the Home Office and Department of Health
asserted that case-ownership, procedures and targets under the
New Asylum Model (NAM) would lead to "faster and higher quality
processes".[31]
It might have been hoped, therefore, that some of the problems
with delays, poor decision-making and poor administration of the
asylum system would be addressed by the NAM. However, several
problems have emerged which indicate that this hope has not been
realised. The relevant targets at no time have applied or been
intended to apply to 100% of asylum claimants,[32]
and there appears to be a growing backlog of cases under the NAM
which do not fall within the targets. There are no resolution
targets covering 100% of claimants. Case-ownership has to date
failed to provide reliable end-to-end ownership in all cases.
The concerns, including as to quality of decision-making, which
ILPA highlighted to the Committee in respect of the legacy cases[33]
in response to Government's response to the Committee's report[34]
generally remain pertinent to NAM cases.
15. A specific socio-economic disadvantage
faced by some refugee children is denial of family reunification.[35]
16. Separated children seeking asylum are
not supported directly by the UK Border Agency. However, support
is provided under the Children Act 1989. Local authorities receive
funding by way of grant from the UK Border Agency in respect of
these children. Whereas the entitlement of these children is established
in children's legislation, we are concerned that there is potential
for the security of that support and commitment of local authorities
to be influenced by decisions taken by the UK Border Agency in
respect of the grant. Moreover, age assessment practices in the
UK asylum system continue to deprive some children of their entitlements
as children and mean that they risk the poverty to which adults
seeking asylum, or whose applications for asylum have been refused,
are subjected.[36]
17. Children, who or whose parent or parents
are subjected to the special immigration status (if this is brought
into force[37]),
will suffer particular socio-economic disadvantage by reason of
the indefinite denial of employment opportunities and access to
mainstream support.[38]
18. Generally, migrant families are excluded
from welfare provisions in the UK unless and until indefinite
leave to remain is granted.[39]
Whereas the Immigration Rules generally require migrants to the
UK (eg migrants coming to study, work or join family members)
to demonstrate their capacity to support themselves, migrant families
are no less susceptible than others to such events as family breakdown
or unemployment.[40]
The period during which migrant families may be precluded from
access to welfare benefits will be significantly extended by the
naturalisation regime to be introduced under the Borders, Citizenship
and Immigration Act 2009.[41]
No recourse to public funds provisions also apply in certain cases
where children are seeking to join, accompany or be joined by,
his or her parent and hence may impinge on rights under the UN
Convention not to be separated and to family reunification.[42]
19. Children of irregular or undocumented
migrants are also at particular risk of poverty and deprivation
on account of exclusion from welfare support and the parents not
having permission to work. This group includes where migrants
have entered the UK unlawfully and where they have overstayed.
Changes to the Immigration Rules, and the prospect of further
changes in the years ahead inspired by the Government's proposal
that a points test be introduced for the naturalisation route,[43]
which could be levered up or down, indicate a risk that this group
may continue to grow.
20. A further aspect of poverty and deprivation
arises from charges that may be imposed on those who are not "ordinarily
resident" in the UK,[44]
which engages the UK's obligations under Articles 24 and 39 of
the UN Convention. Those particularly at risk include:
dependant children aged 16 to 18 of workers
and certain students where those children are not in full-time
education;
children of workers who are temporarily
unemployed;
children of certain persons in the UK
with an outstanding settlement application;
children of families whose asylum claims
have been refused; and
children of undocumented migrants.
These concerns extend to situations of pregnant
women and women giving or who have just given birth since they
may not be entitled to free health care thereby placing the child
at risk.[45]
CONCLUSION
21. The children we highlight face the risk
or reality of socio-economic disadvantage by reason of their and/or
their parents' immigration status. If the Government's aim to
eradicate child poverty in the UK is to be realised, it is plain
that these children must be included in the targets and strategies
that are implemented in order to achieve that aim. Moreover, as
we have argued elsewhere,[46]
the Department for Children, Schools and Families needs to take
responsibility for ensuring that generally accepted standards
regarding the safety and welfare of children are applied to all
children in the UK including those highlighted in this submission.
22. Moreover, since the UK Border Agency,
through its practices, policies and the legislation it implements,
has a profound potential and real effect upon the socio-economic
status of a significant number of children in the UK, the inclusion
of that agency among those, to whom duties such as those referred
to in this submission are to apply, is necessaryboth to
ensure that eradication of poverty is achieved for all children;
and to ensure that the culture change in that agency, to which
Government has committed itself, is neither hindered nor precluded
by the development of wider policy and practice from which that
agency is exempted.[47]
September 2009
http://www.bia.homeoffice.gov.uk/aboutus/workingwithus/stakeholders/nationalasylumstakeholderforum/
13 See fn. 3 on page 3 of PSA Delivery Agreement 9. Back
14
UN Committee on the Rights of the Child, Consideration of Reports
submitted by States Parties under Article 44 of the Convention,
Concluding Observations: United Kingdom of Great Britain and Northern
Ireland, CRC/C/GBR/CO/4. Back
15
Ibid para 24. Back
16
Hansard HC, Second Reading, 20 July 2009 : Column 628 (per
Sally Keeble MP), Column 642 (per Julie Morgan MP)
and Column 662-3 (per Steve Drew MP). Back
17
This terminology is replicated in respect of Scottish and Northern
Irish strategies, see clauses 10(2)(b) and 11(2)(b). Back
18
Hansard HC Second Reading, 20 July 2009 : Column 678. Back
19
Only belatedly is the UK Border Agency to be brought within the
family of agencies required to safeguard and promote the welfare
of children, and the means towards this still leaves the UK Border
Agency in some respects on the outside by establishing a separate
duty under section 55 of the Borders, Citizenship and Immigration
Act 2009. Though Ministers have emphasised the close relationship
between this and the duty under the Children Act 2004, it remains
to be seen how effective creating a separate duty will prove-ie
whether the meaning and effect of the duty, and the guidance that
is to be produced under it, will have the same meaning and effect
as the duty and guidance under section 11 of the Children Act
2004. Back
20
Family members of A8 and A2 workers are held not to satisfy the
habitual residence test for the purposes of access to welfare
entitlements during the first year of the worker's employment. Back
21
The relevant provisions are not described here in full. In our
October 2007 submission to the Committee for its inquiry into
Treatment of Asylum Seekers (para 3 et seq) we highlighted
something of the legislative background. Back
22
Such difficulties were highlighted in our October 2007 submission
(para 5) to the Joint Committee in response to the Joint Committee
on Human Rights, Government Response to the Committee's Tenth
Report of this Session: The Treatment of Asylum Seekers, Seventeenth
Report of Session 2006-07, HL Paper 134, HC 790. Back
23
Joint Committee on Human Rights, The Treatment of Asylum Seekers,
Tenth Report of Session 2006-07, HL Paper 81-I HC 60-I. Back
24
See Joint Committee on Human Rights, Government Response to
the Committee's Tenth Report of this Session: The Treatment of
Asylum Seekers, Seventeenth Report of Session 2006-07, HL
Paper 134, HC 790. Back
25
Council Directive 2003/9/EC, 27 January 2003. Back
26
Letter of Lin Homer, Chief Executive of the UK Border Agency to
UNHCR of 6 March 2009, made available to members of the National
Asylum Stakeholder Forum, includes: "The further additional
rights that the draft [Reception] Directive would grant asylum
seekers-particularly on employment and material support-would
in our view encourage unfounded claims because people would be
more likely to come to the EU and claim asylum in order to benefit
from their rights, and not because they need protection." Back
27
R(ZO(Somalia) & Anor) v Secretary of State for the Home
Department [2009] EWCA Civ 442. Back
28
Families seeking asylum are generally entitled to support under
section 95 of the Immigration and Asylum Act 1999. However, some
families are supported under section 4 of the Immigration and
Asylum Act 1999, generally where the child was born or otherwise
joined the family unit after the asylum claim and appeal has been
finally determined. Back
29
There has not been a uniform response in relation to the levels
of asylum support. However, eg, freezing the level of asylum support
for single parent families seeking asylum constitutes a cut in
real terms for these family units. Back
30
See minutes of the National Asylum Stakeholder Forum meeting of
22 July 2009, available at Back
31
Appendix 69 to the Committee's Tenth Report op cit (para
2.6). Back
32
The target to resolve, whether by way of grant of status or voluntary
or enforced departure, NAM cases within 6 months has risen to
75% of claims by the end of 2009, and is to peak at 90% of claims
by the end of 2010: see Hansard HC, 25 July 2006 : Column
736 (per John Reid MP, then Home Secretary). Back
33
That is the backlog of cases unresolved prior to the introduction
of the NAM: see Hansard HC, 19 July 2006 : Column 338 &
25 July 2006 : Column 736 (per John Reid MP, then Home
Secretary). Back
34
ILPA September 2007 submission: Memorandum to the Joint Committee
on Human Rights following publication of the Government's response
to the Committee's Tenth Report of session 2006-07, The Treatment
of Asylum Seekers (para 5). Back
35
See ILPA February 2009 submission to the Joint Committee on Human
Rights' inquiry on Children's Rights, para 45. Back
36
ILPA February 2009 submission to the Joint Committee on Human
Rights' inquiry on Children's Rights, section G. Back
37
Provision for the special immigration status is set out in sections
130 et seq of the Criminal Justice and Immigration Act
2008, which received Royal Assent on 8 May 2008. These sections
have not been commenced. Back
38
See ILPA February 2009 submission to the Joint Committee op
cit, para 35. Back
39
No recourse of public funds provisions are included at section
115, Immigration and Asylum Act 1999 and paras 6-6B of the Immigration
Rules (HC 395). Back
40
ILPA September 2009 submission to the Ministry of Justice request
for views on European Union Justice and Home Affairs Future Work
Programme 2009 (Stockholm Programme) highlights groups at risk,
including Accession State nationals and victims of domestic violence.
We would also refer the Committee to the Statement on No Recourse,
which relates to domestic violence and to which ILPA is a signatory,
available at: http://www.wrc.org.uk/includes/documents/cm_docs/2009/0/6_
0904_nrpf_statement_final.pdf Back
41
Sections 39-41 of the Act establish the basis for the new naturalisation
route. Further information is available from ILPA briefings on
the UK Borders Bill, including January 2009 initial briefing,
February 2009 House of Lords Second Reading briefing, May 2009
House of Commons Second Reading briefing and July 2009 briefing
on Part 2 (naturalisation); and see ILPA May 2008 submission on
the Path to Citizenship consultation. Back
42
Article 9 & 10. Back
43
UK Border Agency consultation: Earning the Right to Stay, A
new points test for citizenship. Back
44
See National Health Service (Charges to Overseas Visitors)
Regulations 1989, SI 1989/306 as amended. Back
45
See Refugee Council: First do no harm: denying healthcare
to people whose claims for asylum have failed, June 2006 which
provides a useful introduction to the subject as well as information
on how this affects the specific group in question. Back
46
See, eg, ILPA February 2009 submission to the Joint Committee
op cit, para 36. Back
47
See further ILPA August 2009 submission on draft statutory guidance
on section 55, Borders, Citizenship and Immigration Act 2009. Back
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