Immigration and Community Care – an overview

The starting point for any assessment, including those of persons subject to immigration control is s47 NHSCCA 1990:

“where it appears to a local authority that any person for whom they may provide or arrange for the provision of community care services may be in need of any such services, the authority shall carry out an assessment of his needs for those services; and having regard to the results of that assessment, shall then decide whether his needs call for the provision by them of any such services.”

It is not necessary for the applicant to approach the local authority directly for assistance: a request can come from a third party (e.g. solicitor representing the applicant, local charity or carer), as a duty arises once the local authority is aware of that person. It would only be safe to refuse to carry out an assessment where it is clear that the person will not qualify for ANY services from the local authority. In any event it is likely that a decision not to conduct an assessment could be subject to challenge and the local authority should therefore ensure that all the circumstances have been fully explored. In very rare circumstances it may be possible to refuse to conduct an assessment, but these will be limited. For example where a local authority had recently concluded an assessment on the individual who did not qualify for services and no further information has been offered showing that the applicant’s circumstances have changed so that they now may require services. There should not be a long delay in providing such services (this could leave the authority open to accusations of maladministration). The needs of the user should be given greater importance than the need to save money. In addition the local authority could have a duty to provide welfare support to protect basic elements of someone’s private and/or family life (Article 8 of the European Convention on Human Rights [ECHR]). For example a duty might arise where the welfare of children was at stake or family life seriously inhibited. Failure to act could constitute a lack of respect for private and family life if the local authority had an element of culpability or knowledge that the quality or security of that individual’s private and family life were at significant risk. A local authority might also be vulnerable to a claim that Article 3 rights were breached if the person suffers inhuman and degrading treatment as a consequence of the failure to fulfil their statutory obligation. As with any assessment it will be necessary to obtain certain information from the applicant in order to complete. This information should be collected as a matter of good practice from every applicant for a service, regardless of their immigration status.

Assessments involving persons subject to immigration control should be conducted with the same level of scrutiny as any other assessment. However it is worth considering the criticisms of Jackson J in R (T) v LB Enfield [2004]. This was in connection with an assessment of the applicant’s age. The local authority were criticised for failure to take into account relevant considerations, in this case three separate reports, two of which indicated that the applicant was a child and the third set out that she suffered from PTSD; the Judge also held that the assessment had been conducted in an unfair and hostile manner. Therefore, there are a few additional considerations to be borne in mind when assessing those subject to immigration control. Persons Subject to Immigration Control.

Persons subject to immigration control include hugely different classes of people with different rights to remain in the UK and differing entitlements to support. They are therefore generally divided into separate categories: “Persons subject to immigration control” is defined in Section 115 of the Immigration and Asylum Act 1999 and means a person who is not a national of an EEA State and who:

(a) Requires leave to enter or remain in the United Kingdom but does not have it;

(b) Has leave to enter or remain in the United Kingdom which is subject to a condition that he does not have recourse to public funds;

(c) Has leave to enter or remain in the United Kingdom given as a result of a maintenance undertaking (i.e. a written undertaking given by another agreeing to be responsible for that person’s maintenance and accommodation); or

(d) Has leave to enter or remain in the United Kingdom only because they have appealed against the refusal to vary leave and the appeal is still pending.

Where a person appeals against a refusal to vary his leave within the time limit allowed for the appeal his original grant of leave remains in force as do the conditions. During the appeal a person may not make an application for a variation of his leave. Therefore, if a person who entered the UK under a visitor’s visa (which prohibits him from accessing public funds) later applies for a different visa which would allow him to access public funds is refused but appeals within the time limits, he is entitled to remain in the UK whilst this appeal is outstanding but on the conditions attached to his visitor’s visa (i.e. no recourse to public funds). Asylum Seeker has a slightly differing definition depending on the statutory context. For the purposes of Part VI of the Immigration and Asylum Act 1999 it means a person who is not under 18 and has made a claim for asylum which has been recorded by the Secretary of State but which has not been determined. For the purposes of the Nationality Immigration and Asylum Act 2002, the person must also be in the United Kingdom. A “claim for asylum” includes a claim that it would be contrary to the United Kingdom’s obligations under the Refugee Convention, or under Article 3 of the European Convention on Human Rights, for the claimant to be removed from, or required to leave, the United Kingdom. Therefore if a client’s application for asylum has failed but they have an outstanding application for leave to remain under Article 3 which has been recorded by the Secretary of State as an asylum claim then they are still considered asylum seekers. EEA Nationals are also subject to limitations in respect of access to community care legislation. These are people with EEA citizenship.

Also affected are those who have been granted refugee status within EEA countries or are citizens of those countries included in the EEA Agreements and their dependants. EEA nationals are only able to remain in the UK whilst they are exercising their rights under EU treaties. Any rights of dependants are parasitic on the EEA national. That is they will have no rights to remain in the UK and will be persons subject to immigration control if the EEA national is not in the UK, not exercising treaty rights or their relationship is no longer subsisting. Unlawfully in the UK is defined in Section 11 of the Nationality Immigration and Asylum Act 2002. A person may be unlawfully in the UK if they entered illegally and have not since been granted leave to remain (for example when a person has entered by deception) or were granted leave to enter but that leave has expired or is no longer valid. Presently, it is not possible for a prospective asylum seeker to obtain, prior to their arrival in the UK, leave to enter for the purpose of claiming asylum. Given the nature of a claim for asylum, many asylum seekers may have used deception to leave their country of origin and/or travelled to the UK clandestinely. Usually the Home Office will grant an asylum seeker “temporary admission” to enter or remain in the UK whilst their application is considered. This is not the same as leave to enter, only an alternative to detention. The High Court, in R (AW) v Croydon LB, R (ADY) v Hackney LB and SSHD [2005], gave consideration as to whether an asylum seeker, whose claim had failed, could be treated as being unlawfully in the UK according to s.11 of the 2002 Act so as to ascertain if and when a local authority could withhold support under s54 of the 2002 Act. Within this judgment the court held that the 2002 Act made a clear distinction between those who made their asylum application at port of entry (i.e. before passing through British immigration control) and those who did not. A failed asylum seeker who claimed at port of entry may not be deemed to be in the UK illegally, and could continue to qualify for support unless they fail to comply with removal directions. Whereas those failed asylum seekers who made their claim after they have already entered the UK may be considered unlawfully in the UK prior to removal directions being issued. This means that these two groups will be treated differently in the application of the 2002 Act. Evidence of Nationality The restriction of provision to those subject to immigration control is one of the most complex areas in community care law.

Over the last 10 years there have been several major pieces of primary legislation, and countless regulations and guidance issued, all of which have been considered by the courts within many cases fundamentally affecting the way in which local authorities carry out their functions towards this vulnerable group. The restrictions placed on provision depend on the individuals’ immigration status as much as upon their needs and it can be very difficult to establish whether an applicant is within a category of person excluded from provision. Before making a decision to provide any services to a person a local authority must obtain positive proof of the person’s ordinary residence, immigration status and nationality. The Home Office guidance requires the provision of a full current passport, birth certificate or original Home Office letter confirming the applicant’s immigration status. Only the original documents are acceptable and the responsibility is clearly placed on the applicant to satisfy that they are entitled to receive a service rather than for the authority to establish that they do not qualify. In practice it may be necessary for a local authority to rely on information provided either directly from the Home Office or from the applicants’ legal representatives.

Considering Ordinary Residence.

A person subject to immigration control may not be considered to have “ordinary residence” but this will not mean that they are automatically barred from services. Indeed a local authority has the power, and in some instances, a duty to provide services to those with no settled residence or with ordinary residence within another authority. Therefore, whilst it is important to ascertain the person’s residence as part of the assessment process, this should not be the determining factor of service provision.

Considering Alternative Provision.

In some cases those subject to immigration control, including asylum seekers, may qualify for welfare benefits and assistance with accommodation from a local authority’s housing dept. This will depend on the basis of their claim for leave to remain in the UK, when and where they made this claim and whether the application has been considered. For example EEA nationals may have entitlements under EU Treaties. In addition where a claimant has made an application for asylum at their port of entry prior to 02/04/00 and has never received a negative decision from the Home Office in respect of their application for leave to remain in the UK are entitled to Income Support, Job Seekers Allowance, Housing Benefit and Council Tax Benefit subject to the usual criteria for entitlement. They are not entitled to Child Benefit unless they were in receipt of the benefit on the 07/10/96 and since. Nor are they entitled to apply for the Tax Credits. Alternatively, if an asylum seeker made an application before the 03/04/00 either on arrival or in-country but were “dis-benefited”, i.e. they received a negative decision, before the 25/09/00 (or in some cases earlier), they may qualify for support under the ‘Interim Provisions’. At present, support under these provisions is expected to end on the 03/04/06. However, the Government may again extend this deadline. Those who continue to be in receipt of support at the present time should have been notified by the NASS that they are able to provide them with financial and accommodation assistance under NASS’ duties as set out in the Immigration and Asylum Act 1999. They should therefore be encouraged to make an application to NASS for assistance.

Where an applicant has previously been in support of assistance through the Interim Provisions they may have established links within the community they currently reside. Special consideration should be given to whether they would have grounds to challenge any decision by NASS to accommodate them away from this area. Finally, where a person qualifies for support under s2 of the Chronically Sick and Disabled Persons Act 1970 or s117 of the Mental Health Act 1983, their immigration status will not affect entitlement.

Considering Whether the Provision of Support is Permissible Under Statute.

Under s54 Nationality, Immigration and Asylum Act 2002 (NIAA) local authorities are prevented from providing support under the Interim Provisions, National Assistance Act 1948 (NAA), the Local Government Act 2000 (LGA), the Children’s Act 1989 (CA), the Chronically Sick and Disabled Persons Act 1970 (CSDPA) and various other provisions, subject to the caveat below, to:

  1. a) Those who have refugee status abroad or their dependants; or
  2. b) Those who have the nationality of an EEA State or are their dependant; or
  3. c) Those who were (but are no longer) asylum-seeker and who fails to cooperate with removal directions issued in respect of them; or
  4. d) Those in the United Kingdom in breach of the immigration laws within the meaning of section 11 of the NIAA and who are not an asylum-seekers (i.e. in the UK without leave or right of abode, not EU national or subject of exemption e.g. crew member)
  5. e) Those who have exhausted all rights of appeal from a Home Office refusal of asylum or Human Rights claim and would only be eligible for asylum support because there is a dependant child and they have failed to take reasonable steps to voluntarily leave the UK.

If it appears that a person in their area comes within the categories listed a – e above, the local authority is under a duty to inform the Secretary of State. Support must be provided to persons subject to immigration control who are not within these categories, including asylum seekers and also to those within these categories if a refusal of support would amount to a breach of their rights under the ECHR. This is because s.54 NIAA does not prevent the authority from having a duty to assess an applicant in the first place. Nor does it prevent the exercise of a power or the performance of a duty by the local authority, if refusing provision would lead to a breach of a person’s ECHR rights, or a person’s rights under the Community Treaties. At the initial assessment social services will need to show that they have considered whether provision of services would be necessary in order to prevent a breach of the claimant’s ECHR rights, the most important of which will be those protected by article 3 of the ECHR, namely the prohibition on torture, inhuman or degrading treatment. (For more information on assessments of an applicant’s human rights go to the Q & A section on the site) Please note that s54 of NIAA does not apply to the provision of support under s117 of the Mental Health Act 1983. Such support must continue to be provided by a local authority where it is assessed as necessary without charge regardless of a person’s immigration status.

Assessing level of need under s.21 of the National Assistance Act (NAA), if, by reason of age, illness, disability or any other circumstance an applicant is in need of care and assistance that is not otherwise available to them, they are entitled to residential accommodation. In, R v Oxfordshire County Council, ex p Khan [2002], the Court clarified that the need can have arisen from a non-physical source e.g. mental health problems, domestic violence etc. However, under s.21(1A) NAA 48, applicants who are subject to immigration control must also be able to establish that their need for care and attention arises from a cause other than the effects or likely effects of destitution. The test to establish whether s2(1A) applies is “whether the applicant’s need for care and attention is to a material extent made more acute by some circumstance other than mere destitution, so that he is likely to be materially more vulnerable and less able to survive, than if he were merely destitute.” Provision is made according to the National Assistance Act 1948 criteria. That is to say that if the applicant qualifies for assistance despite s21(1A) because he requires assistance due to his age, illness, disability or any other circumstance, the local authority is required to provide the relevant services. To decide whether someone is destitute it is not possible to take into consideration any asylum support, e.g. from NASS or under the Interim Provisions, which the applicant or any dependant of his is provided with, or might be provided with, in the period of possible destitution (i.e. 14 days or 56 for a supported person).

In contrast to the situation for ordinary assessment under s47, the Asylum Support Regulations require that an assessment of a person subject to immigration control must however take into account any other income or support which the applicant or dependant, has or might reasonably be expected to have (including entitlement under s21 NAA 48) including and any assets such as cash, savings, investments, land, cars or other vehicles and goods held for the purposes of a trade or other business (whether held in the United Kingdom or elsewhere) available to the applicant or any dependant, or that he might reasonably be expected to have available in that period. This can include support that would be available overseas. The Court, in Westminster City Council and NASS [2002] , held that where an asylum seeker qualified for assistance under s21 NAA because s21(1A) did not apply, then it was for the local authority to provide all support, including accommodation and not for NASS to assist. This is because NASS powers to accommodate destitute asylum seekers were residual, NASS can not make provision for an applicant if they are entitled to accommodation under other legislation as entitlement to such support means that the applicant is not destitute and therefore does not come within the defined categories of persons entitled under the Immigration and Asylum Act 1999. For example, where an infirm asylum seeker is entitled to accommodation under the Housing Act 1996 or s21 NAA, he is not destitute as he has available to him accommodation and support, he therefore can not apply for NASS assistance. The Court of Appeal in R (on the application of Mani) v LB Lambeth and SSHD (2003) explained that the prohibition set out in s.21(1A) NAA meant that fewer asylum seekers would qualify for support under the NAA but those not expressly excluded by s21(1A) NAA were entitled to residential accommodation and any other necessary support funded at the expense of the local authority, whether or not their needs would amount to a need for residential care were they not subject to immigration control. In practice what this means is that where a person subject to immigration control comes to the attention of a local authority the assessment will need to focus on all the presenting and identified needs of the applicant. A local authority can not refuse a person subject to immigration control support on the basis that their identified needs are not sufficient to satisfy the qualifying threshold under the Fair Access to Care criteria, as it would be able to if the applicant were not subject to immigration control. The reasons for this apparent discrepancy was explained by the court on the basis that those not subject to immigration control were able to access a range of other statutory provisions, e.g. accommodation under the Housing Act 1996 and welfare benefits which were not available to those subject to immigration control. A local authority is currently only obliged to offer assistance to those not subject to immigration control where their needs were such that ordinary statutory provision could not meet their identified needs. Because those subject to immigration control are restricted from accessing the ordinary statutory provision any identified needs must be met under NAA. Therefore, although a local authority should take into consideration the approach identified in Fair Access to Care guidance, it is important to note that when assessing a person subject to immigration control the threshold for provision of accommodation is lower than it would be for someone not and can be triggered, even if the need is not specifically for residential accommodation.  In Mani the claimant had a congenital abnormality in his right leg, which meant that he had problems with his mobility. He had the use of crutches and a prosthetic extension but still required assistance with bed making, washing and carry shopping. It was held that he was entitled to support, including accommodation, under s21 NAA even though his primary needs were not accommodation based.

In R v LB Enfield, ex p J [2002] the local authority’s decision not to assist a person with HIV was quashed. In this case the applicant was HIV+ but did not require any medication or any treatment for her condition at the time of her community care assessment [CCA] and was still not receiving treatment or medication at the time of the final hearing. In addition the medical evidence was very general. It set out that “homelessness would impact seriously upon this woman’s mental and physical health. The affects of this deterioration could make themselves evident in days… and perhaps [lead to her] developing serious life-threatening complications as a consequence of this.” The Court held that the medical evidence would have been enough to convince any reasonable authority that she would be in imminent need of care and attention once she lost her accommodation. “in the absence of medical evidence expressing a different view, … it was [not] open to the authority to conclude that the risk to health was not evident.” Therefore it would probably not be possible to refuse support to anyone with an illness or disability or any other circumstance unless a local authority obtained cogent medical evidence that suggested that the loss of accommodation would not constitute a risk to health. In R (M) v Slough Borough Council [2004] the claimant was held to be a person who was chronically ill with a severe medical condition. He was HIV+. M was clearly more vulnerable than an able bodied person and his need for care and attention did not arise solely from destitution but from a combination of destitution and illness. Moreover the medical treatment that M’s condition required was of itself sufficient to show that M was a person in need of care and attention. He was therefore held to be entitled to accommodation and support under s21 NAA.

Support For EEA Nationals

This section applies to those persons and their family members who are nationals of a country which has joined the European Union, namely, Austria, Belgium, Cyprus, Czech Republic*, Denmark, Estonia*, Finland, France, Germany, Greece, Hungary,* Republic of Ireland, Italy, Latvia*, Lithuania*, Luxembourg, Malta, Netherlands, Poland*, Portugal, Slovakia*, Slovenia*, Spain, Sweden and the UK. In addition, nationals of those countries who have signed up to the European Association Agreement (i.e. Iceland, Liechtenstein and Norway) or, in the case of Switzerland, signed cooperation agreements have similar rights to nationals of EU member states.

The term ‘EEA national’ is used within this section to refer to nationals of the countries listed above however the reader should note that additional limitations may apply to those from Switzerland and the A8 nations, namely nationals of the states listed that have been marked with an *. Under the Accession (Immigration and Workers Registration) Regulations 2004 additional limitations may be placed on their right to reside in the UK until 30.04.09, in particular they may be required to have registered with the Home Office as “workers” to qualify for a right to reside and the definition of who is a family member is narrower for this class of person than under the EU general definition. These regulations do not apply to all A8 nationals and care should be taken when assessing an individual to apply the Regulations correctly. Furthermore, although Bulgaria, Croatia, Macedonia, Romania and Turkey have signed association agreements with the UK nationals of these countries do not have the same rights of free movements or entitlement to support as EEA citizens and are therefore not included within this section. It is important to note that in some instances British Citizens and their family members may benefit from rights conferred by EU law if these are more favourable than the rights enjoyed by the British Citizen under UK legislation. However the European Court of Justice [the “ECJ”] has limited this to some extent following their ruling in Manjit Kaur. This case made clear that the nation state was entitled to decide who among their citizens qualified as EEA citizens for the purposes of EU law. In this instances Mrs Kaur’s status as a British Overseas Citizen did not entitle her to EU protection. The UK is obliged to honour all rights and obligations granted to European citizens under the EU Treaties under s2(1) of the European Communities Act 1972. The right of free movement is enshrined within Article 39 of the EU Treaty and has given effect to the legal rights of European nationals under EU law by virtue of the Immigration (European Economic Area) Regulations 2000 [the “EEA Regs.”] and the Home Office’s ‘European Directorate Instructions’. It is worth bearing in mind however that that this legislation and guidance may not always comply fully with the UK’s obligations under EU law. This is because many of the practical arrangements to ensure free movement have been implemented via EU directives, which once in force are binding on the member state’s government but may confer a discretion as to how they will be implemented and require secondary legislation. EU case law has is also constantly redefining this area. Therefore it is important to bear in mind the rights conferred by EU Regulations, effective EU Directives and case law as these will supersede the UK legislation and can be enforced through the national courts.

On the 30.04.06 the EU Directive 2004/58 came into force, replacing all former directives in respect of free movement under EU Treaty. From this date, unlike other immigrants to the UK, nationals of these countries are not required to apply for a visa to enter or remain in the UK. They are able to enter the UK upon the production of a valid identity document and can remain without any further formalities for three months. Thereafter they can remain provided that they are a worker, self employed, if they have sufficient resources to maintain themselves and their dependants, or they are studying (subject to additional limitations). Such EEA nationals can apply for a residency permit which will afford them and their dependants a right of residency for five years. Only those family members who are not nationals of member states must apply after 3 months for a residence permit. After 5 years an EEA national will qualify for permanent residence in the UK. A “family member” of an EEA national does not require leave to enter or remain in the UK regardless of their nationality; they are usually admitted without any restrictions. They are not deemed a person subject to immigration control and so may have access to public funds where EU law permits this, but their right of residency is largely parasitic on their relationship with the individual who is exercising the treaty rights. If this relationship ceases to apply then the family member may lose their right to remain in the UK, however under the Directive 2004/58 the host state must have due regard to the family life and human dignity of family members where the EEA national dies or the relationship with the EEA national ends, in addition recourse to public funds can not be a reason alone for expelling a family member. Provided that the individual is exercising EU treaty rights it is unlawful to discriminate against them on the basis of nationality. They are to enjoy the “same social and tax advantages as nationals” and will qualify, subject to some limitations as set out in the EU treaty, for services as if they were British Citizens. Where they are not exercising treaty rights then they remain a person subject to immigration control and may not be entitled to support. This was confirmed by the Court of Appeal in London Borough of Barnet v Ismail and Abdi [2006]. Therefore, in order to establish whether a national from one of the states listed above or their dependants are subject to immigration control it is necessary to consider the basis upon which they have entered and remain in the UK. In particular, the public authority will need to establish whether the individual comes within the definition of a “worker” and/or “recipient or provider of services” in order to ascertain if they or their dependants are entitled to reside in the UK and receive support.

Workers

A “worker” was not defined within the EU treaties, but has been considered by both the British national courts and the ECJ. The ECJ in Levin v Staatssecretans van Justitie [1982] that work must involve “the pursuit of effective and genuine activity…[not anything] marginal or ancillary.” In Lawrie Blum v Land Baden-Wuertlemberg [1986] the ECJ expanded on this definition, to require a worker to be ‘actually or potentially employed and performs services for another in return for some remuneration.’ Part-time workers and those whose remuneration is so low as to be below a subsistence level were recognized, by the ECJ, to qualify as workers. In Antonissen [1991] the ECJ held that Article 39 also permitted someone to enter the UK to seek work, although the Home Office’s guidance does make clear that after an individual has been in the UK for over six months the onus is on them to prove that they are actively seeking work to retain the right to reside. In addition, EU Directive 2004/58, makes clear that a person may qualify as a worker in one member state where they have worked within another member state, they may also qualify as a worker in the UK if they are on maternity leave and intending to return to work, temporarily unable to work through illness or accident, or have commenced vocational training. In addition EEA nationals who have become involuntary unemployed where they have either been previously employed for a year and have registered as a job seeker or have completed a fixed term contract of less than a year are still to be considered “workers” and may retain their right to reside in the UK for at least six months. Public Authorities should therefore give consideration to the requirements above and in particular the length of the employment, the number of hours worked, whether the work is regular and the level of earnings to ascertain whether the individual could be considered a worker.

Self Employed

The definition of a “worker” does not include those who are self employed, however this class of persons were protected under Article 43 of the EU Treaty, namely the “Right of Establishment”. Under this article any prohibition on the right of establishment is prohibited and an EEA national has the right to take up and pursue activities as a self employed person and to set up and manage companies and firms. Individual states should recognise, on a mutual basis, formal qualifications obtained within the EU countries and secondly legislation has been passed by the EU to this effect for most professions. It is recognised that those seeking to exercise their rights under this article will participate in the host country’s economic activities on a “stable and continuous” basis and therefore will be entitled to remain resident in the country on a permanent basis. Although there is no equivalent in EU primary legislation requiring the host state to give equal access to social housing or social security benefits the ECJ, in Commission v Italy [1988], clarified that discrimination against this class of migrant would be unlawful under the general rule of non discrimination contained in Article 12 of the EU Treaty. In addition the EU Directive 2004/58 confers a right to freedom of movement to this class of person provided that they are self sufficient. Provider and recipient of services Under Article 49 of the EU Treaty all restrictions on free movement of EEA nationals to provide services are prohibited. Unlike those exercising rights under Article 43 the ECJ has recognised that those seeking to provide services under Article 49 will do so in a more transitional way and will involve only a temporary presence in the UK, therefore the host state can limit their right of residency. The right of entry and residency may extend, temporarily, to non European nationals employed by European companies (known as ‘posted workers’) and their family members if their presence is necessary to ensure the company’s rights under EU law. Whilst there is no primary EU legislation covering the freedom to receive services EU Directives, e.g 64/221 and 2004/58 as well as ECJ caselaw has undoubtedly extended this article to include those travelling to the UK from EEA member states in order to receive services provided that there is some financial link between the provider and the consumer. In particular those travelling to the UK for the purposes of tourism, business travel and in certain circumstances to receive medical treatment or for educational purposes could be able to rely on EU law gain access to support. Particularly if they were able to establish on entry that they were self sufficient as under the EU Directive 2004/58 they would have a right to freedom of movement, the Directive also states that a request for assistance from the host state should not automatically result in expulsion.

Unaccompanied asylum seeker children [“UASC”]

The UN Convention and Protocol relating to the Status of Refugees makes no distinction between adult and children asylum seekers, therefore a person, under 18, who enters the UK for the purposes of seeking asylum and is not accompanied by an adult upon whom they are dependant is entitled to remain in the UK whilst their application is considered. In addition, because of their potential vulnerability, the UK Immigration Rules states that “particular priority and care is to be given to the handling of their cases.” Both the Home Office’s Immigration and Nationality Directorate’s [the “IND”] and local authorities have additional duties towards these children. The IND’s Obligations to UASC s.350- 352 of the Immigration Rules set out the IND’s obligation to UASC and special consideration that should be shown when considering these applications. These rules make it clear that those assessing the application must give regard to the fact that a child may not have a full understanding of their situation and therefore any objective evidence of risk must be given significant weight.

The IND also has a duty, under s6 of SI2005/7, to attempt to trace family members of UASCs, although this must be done in such a way as to protect against any threat to the life of the minor or their family members. Those carrying out the initial screening interviews at ports of entry and asylum screening units must pay special regard to IND guidance when assessing whether an applicant is under 18. Relevant factors such as the child’s state of mind, maturity and understanding of their situation should be considered in the context of their experiences and the objective materials. Those interviewing children should have received specialist training and, where an applicant claims to be a child the IND have an obligation to inform Children’s Panel of the Refugee Council, this is the case even where the age is disputed that the applicant is treated as a adult by the IND. Where it appears that the applicant is a child the IND must contact the relevant social services department, in borderline cases the Home Office are obliged to give the applicant the benefit of the doubt and make a referral to local authorities. For access to the IND Guidance click here: http://www.ind.homeoffice.gov.uk/ind/en/home/applying/asylum_applications/unaccompanied_asylum.html

An UASC should be treated by the Home Office on slightly more favourable terms than an adult applicant. For instance a child should not be detained or subject to the fast track procedure. The time limit for submitting any evidence of the claim is extended from 14 days for an adult asylum seeker to one month for a child. In addition s352 of the Immigration Rules makes it clear that a child should not be interviewed by the Home Office regarding the substances of his claim where it is possible to obtain this information from other written materials and, where an interview is necessary, this should be conducted in the presence of a “responsible adult.” Home Office guidance also dictates that decisions should be made quickly, i.e within two months of the claim being submitted. It is noteworthy that these additional measures may actually be working against the child. The Home Office reports that 95% of UASCs’ applications for asylum are rejected at first instance. Where an application by an UASC is rejected they are entitled to appeal this decision, though there are very strict time limits for submitting an appeal. The Chief Adjudicator of the Immigration Appellant Tribunal has issued guidance on how UASC’s appeals should be considered. For a copy of this guidance click here: http://www.ait.gov.uk/practice_directions/guide_notes_pdf/guide_note9.pdf

The Home Office can either refuse an application or grant leave to remain. Not all grants of leave entitle the UASC to Refugee status in the UK and some will be time limited, for example discretionary leave is often given to UASC to expire after one year or on their 18th birthday. It is therefore vital that the statutory bodies involved with the care of the child ensure that the UASC has access to specialist legal advice and every effort is made to ensure that the necessary information and relevant considerations have been put forward to the Home Office when the application is submitted. In addition social workers responsible for the care of UASC would be wise to have a basic understanding of the asylum and appeal process so as to ensure that a fresh application to remain is submitted to the IND prior to the child’s leave expiring. Although at present the Home Office have indicated that they will not seek to remove a child who has overstayed their grant of leave this is subject to the caveat that they will if appropriate reception arrangements in the country of return are available and that removal can be effected once the person reaches majority.

Local authority obligations; age assessments

At the time that an applicant makes a claim for asylum the Home Office will assess their age. Where the applicant is considered a minor the IND will notify the responsible local authority’s social services department. The social worker will also need to consider the applicant’s age and can not rely on the decision reached by the Home Office as to do so would be unlawful as a delegation of their statutory duties. IND statistics show that in almost half of the applications from those claiming to be under 18 their age is disputed. The IND has no obligation to refer those whose age they dispute to a responsible local authority for further investigation and they are treated as adults for the purposes of their claim. Whilst it is possible for an individual to challenge an age assessment, either with the assistance of the Children’s Panel of the Refugee Council or through the judicial review procedure, those advising applicants in this position may also request an assessment from a local services department. The advisor could request this assessment on the basis that the local authority may be required to provide services to an applicant regardless of their age and therefore the local authority would have a duty to assess under either s47 of the National Health Service and Community Care Act 1990 or s.17 of the Children Act 1989. The starting point of any assessment would be to establish the applicant’s age in order to ascertain the nature of the duties owed to the applicant.

The Courts have set out how age assessments should be conducted by social services and have made it clear that they will not impose unrealistic or unnecessary burdens on local authorities when conducting these assessments. For example, it is not necessary in every case for the local authority to obtain medical evidence of age, in fact they recognise the limitations of expert medical assessments in respect of age, or to provide services to an applicant for a period of time to complete the assessment where a person’s age is obvious. However, those conducting the assessment must ensure that it is carried out in open and fair manner, taking into consideration all relevant matters including the applicant’s subjective fear or apparent hesitancy to disclose information to authorities. Local authorities have been criticised by the courts for conducting assessments in an unfair and hostile manner or for placing an unfair “burden of proof” on the applicant. In particular local authorities should ensure that the purpose of the interview is explained to the applicant in a way that they are able to understand. Where it is necessary for an interpreter to assist an applicant, the courts have stated that it is preferable for that interpreter to be present in the room of the interview. The applicant should be given an opportunity to put forward any evidence that they had in respect of their age. Where there is an issue in respect of an applicant’s credibility the interviewer should give the applicant a chance to answer concerns.

Finally the applicant should be given full reasons for the local authority’s decision in respect of the age assessment, preferably in a written format, so that they are able to decide whether they can request a review, or otherwise challenge the decision. In R (C) v LB Merton [2005] the lack of a clear and concise explanation as to why the application was rejected was held to be unlawful even where the court felt that the local authority had considered all relevant factors and reached their conclusion correctly. Documentary evidence of the applicant’s age should be appropriately considered. Provided a local authority has considered the documentary evidence and provided clear, good reasons for disregarding this in favour of their own assessment they would be acting lawfully. However the lack of travel documentation alone is not sufficient reason for doubting the applicant’s credibility. The interviewer should consider the applicant appearance and maturity, bearing in mind that the applicant’s experience or cultural and ethnic background may affect this considerably. They should also obtain the general history of the applicant, including their family circumstances, educational background and their recent history. Ethnic and cultural considerations must be taken into account as should the applicant’s state of mind. Again, as with the IND’s assessments, on borderline cases the applicant should be given the benefit of the doubt. Once a local authority has conducted an age assessment they should notify the IND of the outcome of this assessment if their conclusions differ from the IND’s findings as this will affect the way the IND treat the applicant whilst his claim for asylum is processed.

Provision of Services to UASC

An UASC will be in the UK without an adult upon whom they can rely for support and protection, as persons subject to immigration control they are not entitled to public funds and are excluded are from NASS support by virtue of s.94 of the Immigration and Asylum Act 1999 as they are under 18. Therefore without the provision of services by the local authority they are “unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development” and are therefore, without exception, “children in need” for the purposes of s.17 of the Children Act 1989. Clearly their most pressing need will be for somewhere to live and a source of income for the basic necessities of life.

Under s20 of the Children Act 1989 a local authority has a duty to provide accommodation for a child in need within their area where there is no one with parental responsibility for him, they are lost or abandoned or the person who has been caring for him is prevented for whatever reason from providing him with suitable accommodation. Therefore as a child in need, without an adult dependant an UASC will qualify for support under this provision. As provision under s20 of the Children Act 1989 can trigger duties under the Children (Leaving Care) Act 2000 [the “2000” Act] consideration has been given as to whether accommodation provided by local authorities to UASC must always be by way of s20 or, if in some cases, provision could be made under s17 of the Children Act 1989. The Department of Health issued guidance to local authorities in June 2003, click here to view in full: www.asylumsupport.info/childreninneed.pdf.

In R (On the application of Behre) v London Borough of Hillingdon [2003] the High Court later clarified that there was no distinction between the provision of “housing” and “accommodation” for those who met the circumstances described in s20. Therefore those UASC who were assisted with accommodation by a local authority were presumed “looked after” children and, provided they remained so for the prescribed period under the 2000 Act would qualify for continued support after their 18th birthday as set out under this provision. The High Court did concede that in some rare instances the child may not wish or need to be “looked after” and, in order to reflect these wishes, could be assisted by way of s17. In such instances the local authority will not incur additional duties towards these children under the 2000 Act. However, a local authority would need to be able to establish within their assessment of the UASC that the UASC did not need to be “looked after” and that the child gave informed consent to being accommodated under s17 rather than under s20, fully aware that this would restrict access to support under the 2000 Act.

An UASC should be provided with access to education, according to their assessed needs. Any limitation on provision could be challenged as unlawful as a breach of duty under the Education Act 1996 and a breach of the child’s rights under Article 14 and Article 2 of the first protocol of the European Convention on Human Rights. Therefore a local education authority will owe the same duties to UASC as they do to those not subject to immigration control, including duties to assess and make appropriate provision for special educational needs. The local authority social services department will have a duty to act as a responsible adult in respect of UASC in their care, notably ensuring that their homework is completed, that parents’ evenings are attended and encouraging them to access higher/further education opportunities. Further information: Very clear and comprehensive guidance as to best practise when working with children subject to immigration control has been produced by ILPA click here for link: http://www.ilpa.org.uk/

 

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