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Stop Press - Home Office: has given in…almost 3000 households saved from imminent abyss, legal case postponed
What's New: Alerts
Summaries:
| 03 June 04 | Refugee Council issues briefing detailing their concerns about: the lack of planning, notice and consultation over the options available to people, scale of potential destitution, homelessness, race relations implications and says further legal challenges on a "number of fronts" are being considered. With delays in securing employment or self-employment, worker registration, obtaining national insurance numbers, processing benefits applications by the DWP, Inland Revenue and local authorities and delays carrying out assessments.
| 28 May 04 | NASS to start sending letters out, giving 3 days notice of an assessment visit. Support could be stopped immediately if no one is available for assessment. Advisers can ask support agencies or landlords to be informed of visits. Written notice of 14 to 28 days to be given, with reasons for decision, if NASS believe support should not be continued. Rights of appeal to the Asylum Support Adjudicator (ASA) against any decision to refuse support can still be exercised. NASS trying to sort out problems with documents needed to prove people have the right to work.
| 24 May 04 | NASS revises Asylum Support Appeals bulletin No: 23. Community Care Magazine reports that more than 150 people have been refused support. Article does not give any reference to the Section 55 Limbuela judgement of 21 May 2004 or the Indefinite Leave to Remain (ILR) amnesty. Article seems to be based on 17 May 2004 Hansard report, in which Des Browne confirmed that people could continue to be supported if failing to do so contravened their convention (human-rights) or Community Treaty rights. Rights that NASS never properly addressed in its original blanket-policy attempt to cancel everyones accommodation and welfare benefit support on 1 May 2004.
| 21 May 04 No: 4 | Full-text of ground-breaking Section 55 Limbuela judgement available for download in html, pdf, text and word versions. Which offers the most definitive guidance on how rules should be applied to core aspects of the NASS and Local Authority asylum support EU accession cases.
| 21 May 04 No: 3 | Citizens' Advice calls for in-human law to be scrapped. After court judge said it was "abhorrent, illogical and expense" for the Home Office to "wait-and-see" how a persons situation could become on the verge of "inhuman and degrading treatment" by denial of the right to work, housing and welfare-benefits to survive. The Home Office was therefore found to be in breach of Article 3 of the European Convention on Human Rights
| 21 May 04 No: 2 | Shelter is a basic human right, says Court of Appeal as Charity Shelter today heralds the Court of Appeal ruling saying that ‘shelter of some form from the elements at night’ is a ‘basic amenity’ as Blunkett loses 3 Section 55 asylum support appeals at the Court of Appeal. Shelter requests urgent help to find case studies, as court case has potentially huge implications for "single homelessness and the statutory housing rights of people from abroad" Court states case-by-case ECHR Article 3 'inhuman and degrading treatment' appeals should not be dealt with through the courts. The Home Office may now need to carry out a root-and-branch review of its asylum-support policies and procedures, especially getting rid of rules that deny people from the right for NASS to review any decision by them to refuse support. Further media reports.
| 21 May 04 No: 1 | Housing Today magazine report that EU accession families and single people are saved from eviction after the "Home Office abandoned its hardline policy"
| 18 May 04 | Gloucestershire Action for Refugees and Asylum Seekers (Garas) help families and single people overcome shock and despair at having services cut. Refugee Childrens' Consortium discuss bungled attempt at evicting familes, causing chaos, confusion and litigation.
| 15 May 04 | One page summary of situation, to date.
| 14 May 04 | Climate of fear, The Home Office have given in...The Treasury Solicitor sends letter to Pierce Glynn Solicitors, which confirms High Court challenge adjourned for 5 to 6 weeks: Dated 14th May 2004. Letter from Director of NASS to Chief Executives about continuing and terminating support: Dated 14th May 2004. Solicitors letter and all others can be downloaded from this website. London Asylum Seekers Consortium (LASC) to hold meeting on EU accession and Indefinite Leave to Remain (ILR) amnesty. Interesting! media report about non-loss of accommodation...and mis-understandings about fundamental human rights. Funding problems for local authorities. Solicitor expresses note of thanks.
| 11 May 04 | Leaflets updated for asylum seekers and their advisers. NASS note: Home Office retained ID not required to register as a worker. NASS letter to Chief Executives about Indefinite Leave to Remain amnesty. More case law added.
| 10 May 04 | Indefinite Leave to Remain (ILR) amnesty: Letter from David Blunkett to Citizen's Advice, confirms those being considered will have housing and support continued until a decision is made. How to apply
| 7 May 04 | Home Office perform an 11th-hour U-turn. Period of grace for asylum seekers to find "work". Councils offered say in judicial review on asylum seekers for new EU states. London Asylum Seekers Consortium (LASC) to hold urgent meeting on EU accession and 1998 Human Rights Act, LASC training notes available
| 5 May 04 | NASS: "Urgent review launched" Threatened with eviction? Telephone NASS on 020 8633 0341 - Leave for Judicial Review against the DWP refused. Urgent Request: Please email evidence of difficulties people have getting into work. High Court case notes on breaches of human rights and being unreasonable, case to be heard next week for two days, after the Limbuela Section 55 judgement has been issued.
| 4 May 04 - No: 3 | Leave for Judicial Review granted, to challenge "unlawful and discriminatory" policies. Not reasonable to cut off housing and support. Court not pleased to be used to sort out mess, causing waste of public money. Three months requested to sort things out, Challenges to benefits regulations. Are other regulations discriminatory? Questions about... remain. Further media reports
| 4 May 04 - No: 2 | Battle Won, as "The Way it has been done is arguably unfair" Justice Collins. Roma families trapped
| 4 May 04 - No:1 | Des Browne states "no evictions", NASS emergency number given out on BBC Radio 4, NASS says people can stay in their accommodation, Kafka insults: At start of a Bank Holiday told to look for work or get out, No papers to work, Told to work from Saturday, Worker regulations published Friday, Delays with leave to remain 'Amnesty', Asylum Support court cases this week, Advisers struggling sorting lives out, Test cases on welfare benefits, Website Poster created, Further media reports
| 1 May 04 | Red Cross providing tents, Accession Worker Registration and Habitual Residence Test regulations published, Race backlash fear, Roma and powerful exclusionary forces, Further media reports
| 30 April 04 - No: 2 | Model letters to Social Services requesting help, Shelter provide emergency service and send letter to Chief Executives, Local authorities stop evictions and apply pressure on Home Office, Medical Foundation for the Care of Victims of Torture offers help, David Blunkett letter to Chair of Local Government Association, What to do flow chart, Refugee Council Press Releases, Des Browne confirms NASS to review cases, Further media reports
| 30 April 04 - No: 1 | Bank Holiday contacts: NASS issues emergency paper and telephone numbers, Child Poverty Action Group (CPAG) looking for welfare benefit test cases, Details of three successful Asylum Support Adjudicator appeals, 'Council believes it has found a way of continuing to support', Councils in last-ditch bid to save asylum families. Further media reports
| 29 April 04 | Reprieve - NASS and local authorities will hold off on evicting asylum seekers and will provide them with emergency support
| 28 April 04 | '. . .crisis looms as families cut adrift, Catastrophe will strike - people are devastated and frightened
| 27 April - 04 | Specimen grounds for Judicial Review and a bundle of new documents added to support High Court and Asylum Support Adjudicator (ASA) appeals and representations. Further media reports
| 26 April 04 | NASS to review cases, Out of time Asylum Support (ASA) appeals allowed, Local authority agrees to carry out assessments, Wanted: Counsel willing to represent pro bono at ASA and Solicitors to take on cases, Refugee Council Briefing, Roma community groups desperate for help
| 25 April 04 | Website launched
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Are you advising asylum seekers from the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia, Slovenia?

| Download this information as a 10 page Word document |

On May 1st, these countries joined the European Union. This does not alter the rights of nationals of these countries to have their application for asylum determined, but it may affect their asylum support and any accommodation provided by the National Asylum Support Service (NASS) or local authority social services departments. NASS estimates that there are under 3,000 households affected, but that most of them are in London, and about half are supported by local authorities under the interim scheme for asylum support. Community groups are concerned that the figures may be an underestimate, and also that they include many households with children and vulnerable adults. Those affected may already have had notice to quit or a letter telling them that their support and accommodation will end. The Home Office and other ministries have issued letters and guidance to local authorities. Asylum seekers from these countries face particular problems because, unlike nationals of Cyprus and Malta, nationals of these eight European states will not get full rights to work and benefits on May 1st 2004.

These are new laws and regulations and there is a lot of uncertainty about how lawful the instructions from central and local government are, with legal challenges being mounted. Some of these are about the definitions of who is affected by the various relevant laws and some about the legality of refusing support to people because it may abuse their human rights. This note is to provide advisers with a quick reference point on the issues and options involved.

Index:

If asylum support and accommodation is cut off, what can be done?

The main priority obviously will be to keep a roof over their heads and food in their mouths while other options are explored and decisions made. After some difficulties, the National Asylum Support Service has now set up a telephone line to contact to stave off eviction and loss of support. For advisers, the number is 0208 633 0342. There is a separate number for individuals affected (0208 633 0341 which can also be used by landlords and local authorities) and email:

IND.NASS.Accession.State.Enquiry@homeoffice.gsi.gov.uk

and fax contacts as well: 0208 633 0078

You may also want to appeal against the decision to withdraw support and accommodation as well as advising the applicant about what they can do.

You may need to line up a range of other agencies to offer advice or support for different options.

Recent developments

The advice note below has been updated to take account of all the latest developments. In brief, these are:

  • On 30th April, the government announced that no-one would be evicted on 1st May if they telephoned the NASS number (as above) and asked for their circumstances to be reviewed. Local authorities were assured that they would get grant support for families kept on
  • The government also announced that it "would like to see" if it was possible that people in asylum accommodation who were moving into work could stay in their accommodation, paying rent (with the help of housing benefit if necessary) and asked local authorities to do the same.
  • The Home Secretary agreed that "You are right that there will be some accession nationals supported as asylum seekers on 30 April who will fall to be considered for ILR under the concession I announced in October 2003. Where these cases are concerned, I will allow their existing support to be extended until the ILR decision has been made."
  • Two affected asylum seekers (D and H) have sought judicial review of the decision to stop their asylum support, and the initial hearing agreed the case could go ahead. The grounds for review are that it was unfair that so little notice was given (because it was impossible for them to sort everything out in the time given, especially since the regulations etc were not ready until April 30th) and that the withdrawal of support was an abuse of human rights. The case is due to be heard on 20th and 21st May.
  • While no order was given to protect all the other people affected by the withdrawal of support, it is clear that NASS will not evict anyone if told that they believe they would be unfairly or inhumanely treated by this, and most local authorities are following suit, some more reluctantly than others. Once the judgement in the case is given, this may change.

Appeal

Those supported by NASS can appeal to the Asylum Support Adjudicators against the withdrawal of support. Arguments to use include:

  • Insufficient notice of the withdrawal of services
  • Individual circumstances have not been taken into account
  • The withdrawal of services is legally wrong

If you are not already running Asylum Support Appeals then you may want to refer this case to a solicitor to advise on the appeal, for which they can get Community Legal Service funding, or to an advice agency that has experience, because the arguments to be used are new and quite complex. However, it is likely that it will be difficult to find solicitors or agencies with the capacity to deal with every appeal, so you may find that you will have to represent them yourselves. If so, you should aim to cover the following points:

  • What notice people have been given and why this is difficult for them.
  • That people are seeking work in the UK, where this is the case, with any details of skills, job offers or steps toward self-employment.
  • That they have had no individual assessment of their circumstances, just a letter, where this is the case and that therefore no one has looked at whether this termination of support would breach their human rights, if this is the case.
  • Any special vulnerabilities that make a breach of their human rights more likely.
  • That the law does not allow their children to be denied support in these circumstances
  • That none of the information they have received establishes that they are EEA nationals for the purpose of the relevant rules.

There is a time limit for appeals to be made (within two days of the decision) but appeals can be made later if there is a good reason for this delay. An appeal will not suspend the withdrawal of support or accommodation, so you need also to contact NASS and ask that the applicant continue to receive support and accommodation while the appeal is heard. If they refuse, you may need to get a lawyer involved to apply for a court order to review that decision.

It appears that NASS are currently repealing the decisions to withdraw support, so appeals are not being heard. However, it is important to put together the grounds for appeal to have ready should NASS reinstate the eviction.

If Social Services are providing accommodation or support, there is no appeal to an Asylum Support Adjudicator, but a lawyer can take a judicial review of the decision to end accommodation and support. It may also be possible to argue on such an application for a reasonable notice period

Provide advice and support and appropriate referrals

Affected asylum seekers have a lot of decisions to make and will need help with forms, applications and appeals. Advice agencies and community groups are facing extreme pressure on their limited resources to deal with what is becoming an emergency. Please ensure that your organisation does as much as it can, with appropriate support, and please make proper referrals where needed, ensuring that the service user keeps in touch with at least one agency throughout. This is especially important, because with legal cases going on rights and options may change a lot in the coming weeks and they need to be kept informed about this.

If you do not already have them, and depending on how many people you think it is likely you will be advising about this, you need to develop contacts who can offer

  • Specialist legal advice and representation
  • Help with accessing privately rented housing
  • Help with finding and applying for work
  • Help with setting up and registering as self-employed
  • Free emergency accommodation
  • Free food
  • Advice and support with voluntary return

As the law becomes clearer and the options change, new versions of this advice note will appear on the website, so please keep checking it.

Advise people to stay put if they can

The law says that those in asylum support accommodation do not need a court order to be evicted. However, it is unlikely that those occupying flats or houses as their homes will be physically evicted: the landlords are likely to seek quick court proceedings. Many are likely to be tenants (but not secure or assured tenants), and so they are entitled to reasonable notice before eviction. If court proceedings or appeals are taking place then the landlord should be notified and asked to stop any eviction until these are determined.

Those in hostels or bed and breakfast accommodation may find that they are excluded from their rooms and need to find alternative housing immediately. It is therefore very important that you contact their accommodation provider and NASS or social services immediately and tell them that reasonable notice has not been given and you want a grace period to enable them to sort out their options. What is reasonable will obviously vary according to circumstances, especially how long s/he has lived their and their household composition, so argue for what you think is right, according to what the asylum seeker thinks s/he wants to do. If any legal challenge is started then you should be asking for time for it to be completed.

If the asylum seeker is either waiting for the amnesty or trying to get work, point out the government statements saying that people in these situations should not be evicted. The relevant documents are on the website should you need them.

Get help from Social Services or NASS

The law (Schedule 3 of the Nationality, Immigration and Asylum Act 2002) says that accommodation or support should not be withdrawn (by NASS or social services) if this would be an abuse of the human rights of the applicant. The human rights referred to are all the rights under the European Convention on Human Rights, not just Article 3 (prohibition on inhuman or degrading treatment) but rights such as Article 8, the right to family and private life. Since being made destitute incurs at least the risk of a breach of human rights, the argument goes that NASS or social services should be making an assessment of the individual circumstances of people before evicting them.

The law (Schedule 3 of the Nationality, Immigration and Asylum Act 2002) also says that the rules about withdrawing accommodation or support do not apply to children. Therefore children should be continuing to get support. The law envisages that children might be supported while their parents are refused support, but in practice, and taking into account the obligation to avoid breaching the child or parent's human rights, there is an argument that to support the child will in fact entail support for the family.

Households with children can also apply for help under the Children Act 1989, and those who are ill, elderly, disabled or otherwise vulnerable can ask for help under community care legislation. This is true of people whose NASS support is being terminated, but it is also true that people who have been supported by local authorities under the interim arrangements may be eligible for Children Act/community care support when support under the interim arrangements stops. All of these provisions are subject to Schedule 3 of the 2002 Nationality, Immigration and Asylum Act, which says that NASS support, interim support, and support under the Children Act and a wide range of community care legislation, should not be provided to EEA nationals, but makes the important exception again that they should be provided to avoid human rights abuse.

This, of course, is an argument to use against withdrawing asylum support or accommodation, but can also be used to ask social services for help for households

  • including children, who have/will have nowhere for to live or have no money for basic necessities like food
  • including people who are ill or disabled with the prospect of nowhere for to live or nothing to eat
  • including children, where the family needs help with childcare, support, other expenses or accommodation until they can get work
  • including children, where the family needs help with support or accommodation until they get indefinite leave to remain under the backlog clearance programme

People who have been/will be forced to sleep rough and do not know where their next meal is coming from can also get help from social services and possibly from NASS. In all these cases, if help is refused, get specialist legal advice and help.

These human rights arguments against the withdrawal or refusal of support are part of the judicial review cases that are going on at the moment, so watch for news of the results.

Social Services may say that they cannot help at all unless the applicant agrees to go home. This is not true, but if they insist you should get specialist legal help.

Help people to start work

From May 1st, all people from the 8 countries listed at the start of this leaflet (called A8 nationals) have the right to work in the UK. There are special rules for people who are already working but these do not apply to asylum seekers or anyone who was not allowed to work by the immigration authorities. Within the first month after starting work, A8 nationals must register with the Home Office to get a registration card and certificate, which will cost £50. While registered and working, they have the same rights as all EU workers to claim benefits and apply for housing (including housing as homeless) without having to pass the habitual residence test. So if the work is poorly paid, they can get tax credits (including childcare tax credits) and housing and council tax benefits. If the work is part time, resulting in the family having a very low income, they can claim income support.

In theory then, people could regularise their situation by starting work. However, it is unlikely that people will be able to gain an income sufficient to pay for housing and food by the time NASS or local authority support is terminated. It is also likely that asylum seekers will have difficulty in satisfying employers that they have the right to work. However, starting work is not without problems. Employers need to know that the worker can be legally employed, for which they will need evidence of their right to work. The guidance on this changes on May 1st as well. To prove the right to work a prospective employee has to provide one of:

  • a passport from an A8 country
  • an ID card issued by an A8 country
  • an Application Registration Card issued to an asylum seeker with permission to work (this will also confirm nationality)
( this is not a complete list: check the Home Office guidance for employers at http://194.203.40.90/default.asp?pageid=17 for other documents). In most cases, asylum seekers' passports will be with the Home Office, and the prospective employees may be asked for them by employers. The Home Office website tells employers that they will commit an offence if they employ someone without seeing and copying the necessary documents. It may be necessary to point out that the Asylum Registration Card will do, although most of these will be endorsed with the restriction on working. This restriction, of course, was lifted on 1st May for A8 nationals. Employers can make a job offer provisional on production of the necessary documents. The person cannot start work until s/he gets the documents and the employer has been able to copy them, but proof of the job offer will enable a benefits and housing claim to be made and can also allow the A8 national to register.

Employees can start work without a national insurance number but have to apply for one immediately from the local job centre.
New A8 workers have to apply to register as an A8 worker, forms for which can be obtained after May 1st by telephoning 08705 210224 or going to www.workingintheuk.gov.uk . Employers are required to have a copy of the registration application, and can employ a worker as long as s/he has applied to register within 30 days of starting work. Although the registration application tells the applicant to include his/her passport, the Home Office has confirmed that those asylum seekers whose passports are with the Home Office do not need to retrieve them before registering, and can just quote their Home Office registration number on the application and explain that the documents are with the asylum application. After 12 months, the worker no longer needs to register and can apply for an EU residence permit. Dependent family members of workers are also entitled to live in the UK, claim benefits and housing and to work.

Workers whose households include anyone who is pregnant, elderly, disabled, ill or vulnerable or whose families include children can get the local council to give them temporary accommodation until they find a permanent home, by applying for help as a homeless person. This application can be made by any adult in the family. All workers can apply to go on council housing lists, but in many areas it is unlikely that this will get them any accommodation soon.

Alternatively, A8 nationals can become self-employed. They do not need to register for this, nor need a national insurance number, but would need to make at least some money and would have to register as self employed with the Inland Revenue to pay taxes and national insurance contributions. Family members of the self employed from A8 and other EU countries are also able to live and work in the UK, and all can claim benefits and housing. It is important, however, to get some advice and help with the processes of applying to become self employed and also the specific benefit rules that apply.

Wait for the amnesty (backlog clearance programme)

Families who

  • Applied for asylum before October 2nd 2000 and

  • Include at least one dependant in the UK who has lived in the UK since October 2nd 2000 and was still under 18 on October 24th 2003 and

  • Do not include anyone with a criminal conviction, an anti-social behaviour order or a sex offenders order, or who has made multiple asylum applications
should have been contacted to fill out a questionnaire with a view to getting offered indefinite leave to remain. If you are advising one of these families and they have not had a questionnaire, contact either NASS or social services to ensure that they have passed on their details to the team coordinating this programme and to point out that they expect a decision on the backlog clearance soon. If they have had a questionnaire, they should fill it out immediately, keep a copy and send it off. If they appear to fulfil the amnesty requirements then the accommodation and support from NASS or social services should not be cut off. Councils will be able to get the usual grant for providing this to the families affected. Once they get leave, they will be able to claim benefits, apply for housing and work without registering and will get the necessary documentation for this.

The team running the backlog clearance have issued a series of newsletters about its progress, which can be obtained by telephoning 020 8760 4779. This number can also be used for general enquiries about backlog clearance but not for any problems about specific cases.

Claim benefits

The rules about benefits also changed on 1st May 2004. These changes affect any benefits to which the Habitual Residence Test may be applied, as well as Child Benefit and Tax Credits.

Disability Living Allowance is not affected by these changes. Any EU national who has the relevant care needs can claim DLA.

The Habitual Residence Test now includes a requirement that to pass it the applicant must have the Right to Reside. People who have the Right to Reside include

  • UK and Irish nationals
  • EU nationals in the UK for an EU purpose (to work, study, be self employed or be self supporting)
  • A8 nationals who are working and either registered or not required to register (because they were already working on 1st May)
  • A8 nationals who have worked for 12 months or more
  • EU nationals with an EU residence permit
  • People subject to immigration control who have permission to enter or remain in the UK

The rules on entitlement to Child Benefit and Tax Credits simply say that to claim them applicants must have the right to reside.

Some A8 nationals may be able to get benefits if they are not working.

  • If they were already on benefits at 30th April, they continue to be entitled on 1st May and will continue until there is a break in the claim or they lose entitlement. This applies to people who were getting benefits at the Urgent Needs Payment rate before, because they were asylum seekers who applied on entry before April 3rd 2000 or applied for asylum before February 5th 1996 and have not had a negative decision on their asylum application since. They should now move on to the full rate of benefits ( but make sure there is no break in claim)
  • Some people may have the right to reside because they claimed asylum while they were still in the UK on some other form of leave and the asylum claim is not yet determined (this includes people who got negative decisions but appealed in time). They continue to have the right to reside based on their old leave until the asylum application ends. So they can claim benefits.

As noted above, A8 nationals who are working, including those who work part time, do have the right to reside (as long as they register, or are exempted from registering) and so can claim all benefits.

Return to the home country

If any asylum seeker wants to return to their home country s/he is free to do so, but the asylum claim will end on departure from the UK. As a European national a person who returns will subsequently be able to travel freely to and from the UK. However, on any return, they will only be able to claim benefits and housing if they are registered workers or have been registered workers for 12 months. For those who want to consider options for returning it is worth contacting the Choices voluntary return project run by Refugee Action. They can also ask the local authority for help if they have nowhere to live and no living costs. There are powers to support people pending a return home, regardless of whether they have children and regardless of other exclusions. The local authority will provide accommodation and support and arrange for travel home. This can only be done once.

Abandoning an asylum application is an important decision. It should be made with full access to good immigration advice as well as a good understanding of what the options are through work and benefits, not simply as a response to the difficulties in exercising rights within the UK. Your organisation may be the only one able to ensure that asylum seekers in this situation get all the information and support they need to make the right decision for them.

Contact list

Shelter have advice centres throughout the UK and a legal team based in London. Advisers or asylum seekers themselves can contact the London Housing Aid Centre, tel no 020 7014 1540, 13-15 Mallow Street, London EC1Y 8RQ, open 10 - 4 Monday, Tuesday, Thursday and Friday. If there is an urgent case that you believe Shelter's legal team may be able to represent, you can telephone the Shelter main number 020 7505 4699 and ask to be put through to the legal team directly.

Refugee Action offer various services to refugees throughout the UK and also run the Choices project to support refugees who want advice and help to return home willingly. The project can be contacted via the head office on 020 7654 7700, at The Old Fire Station, 150 Waterloo Road, London SE1 8SB.

Business Link is the national service for those setting up small business or going into self employment. Tel: 0845 600 9006 (8am-8pm, Mon-Fri). Minicom: 0845 606 2666

Website: http://www.businesslink.org

Refugee Council offer advice and information including briefings on this and related topics to individual asylum seekers and advisers.
Refugee Council Advice Line on 020 7346 6777
Refugee Council Information line on 020 7820 3085

This is version 2 of this advice note, written on 11th May 2004