Immigration Bill - Constitution Committee Contents

'Genuine obstacle to leaving the UK'

4.  The Bill limits the circumstances in which failed asylum-seekers can obtain support (such as financial support and accommodation). It does so by inserting a new section 95A into the Immigration and Asylum Act 1999. Section 95 of that Act presently permits the Secretary of State to provide support for asylum-seekers and failed asylum-seekers who appear to her to be 'destitute or to be likely to become destitute within such period as may be prescribed'. The Bill will make the section 95 support regime inapplicable to failed asylum-seekers, to whom new section 95A will apply instead.

5.  Under new section 95A, the Secretary of State will be permitted to provide failed asylum-seekers with support only if—in addition to meeting the (impending) destitution criterion—they "face a genuine obstacle to leaving the United Kingdom". The Government's position is that this would be compatible with the UK's obligations under the European Convention on Human Rights (ECHR). It bases this view on a judgment of the Court of Appeal[2] holding that, in the words of the Government's ECHR memorandum on the Bill, the ECHR does not impose "a duty on the State to provide a person with support when they are free to … leave the UK in order to avoid the consequences of withdrawal of support".[3]

6.  The question of whether a failed asylum-seeker is "free to leave the UK" is therefore pivotal. If he or she is not free to do so, then support obligations arise in the event of (impending) destitution. In contrast, if a failed asylum-seeker person is free to leave the UK, then support can be denied even if he or she is destitute or likely to become so—the ECHR, in the Government's view, imposing no obligation to provide support in such circumstances.

7.  Yet the meaning of the term "genuine obstacle" is not given on the face of the Bill. Rather, it is to be determined by regulations: new section 95A(3) provides that regulations "may make provision for determining what is, or is not, to be regarded as a genuine obstacle to leaving the United Kingdom for the purposes of this section". Those Regulations would be subject to the negative resolution procedure.

8.  In its Delegated Powers Memorandum, the Government justifies this position by saying that "the definition of what amounts to a 'genuine obstacle to leaving the UK' should necessarily be flexible rather than contained in primary legislation, as it may depend on a variety of changing factors".[4] What those factors might be is not, however, stated in the Delegated Powers Memorandum.

9.  In the absence of any definition of the term "genuine obstacle", the House is being asked to legislate without a clear understanding of how this legislation might affect individuals in potentially desperate circumstances—with significant consequences for those individuals should the term be ascribed a relatively narrow meaning. The House may wish to consider whether it would be more appropriate for the meaning of the term "genuine obstacle" to be defined in greater detail on the face of the Bill.

2   In R (Kimani) v London Borough of Lambeth (2003) EWCA Civ 1150: [accessed 22 December 2015] Back

3   Home Office, Immigration Bill: ECHR Memorandum (17 September 2015) para 105: [accessed 22 December 2015] Back

4   Home Office, Immigration Bill: Delegated Powers Memorandum (1 December 2015) para 87: [accessed 22 December 2015] Back

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