Response by Bristol Refugee Rights to the Home Office consultation on "Reforming support for failed asylum seekers and other illegal migrants"

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1 Response by Bristol Refugee Rights to the Home Office consultation on "Reforming support for failed asylum seekers and other illegal migrants" Bristol Refugee Rights views the Home Office proposals to strip vulnerable families and individuals of support with acute concern. We consider that these proposals if implemented would not achieve their stated objectives but would impose great hardships and distress on many families and individuals and would put the UK in breach of its international humanitarian obligations, particularly the Convention on the Rights of the Child. Money would not be saved, but the cost and burden would simply be shifted from central to local governments. Moreover the measures as proposed would unjustly affect many people who are unable to leave the UK but who would be deprived of all means to support themselves. The safeguards mentioned in the document are non-existent or inadequate. If saving taxpayers' money is a key objective here, it would be better to improve the costly and wasteful decision-making process on asylum and to abandon the costly immigration detention system. The proposals will not save money and are likely to have the effect of forcing more refused asylum seekers to abscond. Summary of measures According to the "impact assessment" the government proposes to Remove support for failed asylum seekers whose asylum claim is finally rejected on or after 1 July 2016, except those with outstanding further submissions or a medical or other practical reason outside their control why for the time being they cannot leave the UK. Concretely it proposes to change the rules governing support in two respects: 20. We therefore propose to change these arrangements to close off section 4(2) support for failed asylum seekers who make no effort to leave the UK at the point that their asylum claim is finally rejected. Where there was a genuine obstacle preventing return to the country of origin at that point, support could be provided until that obstacle was removed. 21. Support would also continue to be provided to those whose asylum claim had been finally rejected but who for the time being could not reasonably be expected to avoid destitution by leaving the UK because they had lodged with the Home Office further submissions (i.e. a new or repeat claim based on asylum or Article 3 of the ECHR) which were outstanding. Further, "failed asylum seekers" who have a dependent child would cease to receive support after a grace period of 28 days following the end of an asylum claim. The consultation notes that people could apply to have this period extended if

2 32... if there was a practical obstacle beyond their control which prevented the family s departure from the UK. The onus would be on those in receipt of support to make this application before the grace period expired and to demonstrate why they could not leave the UK and that they would otherwise be destitute. The consultation sets out the factors that would be relevant to deciding an application to extend the grace period, these are whether families are: (33) taking all reasonable steps to leave the UK or place themselves in a position in which they would be able to do so, including applying for any travel document required to facilitate their departure; and unable to leave the UK owing to a practical obstacle beyond their control, e.g. the provision by their government of a travel document following their application for it or a medical or physical impediment to travel; or because in the opinion of the Secretary of State there was currently no viable route of return available. The consultation provides no right of appeal to the Secretary of State's decision, nor does it set out how a family who has lost support might go about regaining it. It also risks putting families and children in a dangerous situation by making them approach the authorities of the countries which they came from, who in many cases were the persecutors those families had to flee from. We consider that these changes carry a grave risk to some of the most vulnerable people living within the jurisdiction of the state and that the Home Office has failed to provide evidence that they will achieve their objectives, relying instead on vague claims about likely responses to changed "incentives". Where evidence does exist, for example in the form of the pilot study run on a similar proposal in 2005, it does not provide support for these measures. The document sets out as a key objective "to reduce costs to the public purse". However a major reason that the UK asylum system is as expensive as it is, is that individuals and families are kept waiting for a long time to have their claims determined, and that the quality of decision-making by the Home Office is so poor as to give rise to many successful appeals and fresh claims. We consider the more cost-effective way of achieving the financial objective would be to devote more resources to improving the quality of decisionmaking by the Home Office and to end the costly and wasteful system of immigration detention. In any case, we consider it unlikely that the cost-savings set out in this proposal will be achieved as many of the costs will simply be transferred to local authorities, notwithstanding the consultation document's implausible claim that this will not happen. Ensuring the departure from the UK of those migrants with no lawful basis to remain In addition to minimising the burden on the public purse, the other primary aim of these changes appears to be to ensure the departure from the UK of migrants with no lawful basis to remain here. However, many failed asylum seekers do not actively pursue

3 voluntary departure because they continue to fear for their lives if they return home and therefore your premise throughout the document that all failed asylum seekers are intentionally seeking to circumvent the law of the UK is wrong. Many remain in the UK in the hope that they will be able to gather sufficient evidence to convince the Home Office of their genuine fear of persecution and thus their right to remain in the UK. Many do not approach their Embassies for assistance to return because they have a continuing fear of return and in many cases a fear of persecution by the authorities of their own country. You state at paragraph 24 that continuing to provide support provides no incentive to comply with the law when in fact the opposite is true. Receiving support is an incentive to: report regularly to Home Office Officials as required; keep Home Office officials informed of your address; comply with requests to provide information, all for fear of losing support. Without this support there would be no incentive for these individuals/families to do anything other than go underground and therefore the proposals are likely to have the opposite effect. There is no evidence that making people destitute promotes return, rather than chaotic lifestyles, mental disorder and offending. International evidence indicates the opposite, that stabilising people enables them to make decisions about their futures. In addition local authorities will find themselves forced to provide support to people in such situations on the grounds that the removal from the UK would breach their human rights as it would be to deny them of the opportunity to continue to plead their case. Proposed repeal of section 4(1) of the 1999 Act - People in Detention Currently, anyone in detention (except EEA nationals) automatically has the right to a bail address from the Home Office, which they can use to apply for bail if they don't have an address with a friend or family member. This means that the majority of people can access a court to review their detention. The proposal appears to be that people in detention should apply for support under Section 4(2). However, they will only be entitled if they have claimed asylum, and if there is a barrier to removal or they have made some kind of further application (e.g. fresh claim or judicial review). The document emphasises clamping down on S4(2), but it is not clear from the consultation how the eligibility criteria would change. So non-asylum-seekers without a private address will have no opportunity to apply for bail. The Home Office will acquire the power effectively to vet the bail applications of anyone without a private address or a pending case - they will simply be able to deny that there is a barrier to removal and refuse S4(2), preventing any bail application. No legal aid is available for these applications, or appeals against refusal. Asylum-seekers with pending claims would remain entitled to apply for Section 95 (mainstream asylum support). But at present there is no practical means to apply for this from detention, so they apply for S4(1) bail addresses, which will cease to exist - so asylumseekers too may lose practical access to bail addresses.

4 We anticipate that the proposals will inevitably lead to people being released without addresses, as many detainees will have no way to get an address. This would make it far less likely that people will comply with conditions of release e.g. reporting, as they are more likely to have an unstable lifestyle of sleeping rough and sofa-surfing. It will become more difficult to locate and remove them in future. Non-asylum-seekers in detention without a private address will be unable to apply for bail unless they claim asylum. This will inevitably generate significant numbers of a asylum claims in order to access S4(2). There is currently no route for S95 to be used as a bail address, while the bail courts do not accept S95 eligibility as an alternative to providing an address. So it may be difficult or impossible for asylum-seekers to access addresses in practice. At present bail hearings allow the Tribunal to assess whether there is a barrier to removal that justifies release. The proposals would require the Home Office to decide the same point before the detainee has access to bail. This would require significantly more decision-making capacity at Section 4 team, who already have long delays even without having to make any assessment of eligibility. Preventing access to the bail system would force challenges to detention into the High Court. This would add to the already problematic burden of cases on the courts. Detainees will be kept longer in detention, at much greater expense than if they were released earlier to S4(1). The scale of the long-term detained population already makes the atmosphere fragile. Depriving a significant proportion of these detainees of any route to challenge their detention is likely to significantly increase frustration and incidents. Significant numbers of ex-offenders are released from detention because they face barriers to removal. Some are non-asylum-seekers, while others may not meet the revised S4(2) criteria. Making ex-offenders street homeless with no right to work would make extensive re-offending likely, including working illegally in an exploitative environment. Section 4(2) of the 1999 Act At paragraph 19 of the Consultation document you assert that The problem with section 4(2) is that it provides an avenue for support simply on the basis that the person is in the UK and has previously made a failed asylum claim. This is a mis-interpretation of the law, the avenue to support is not simply that the person has previously made an asylum claim which failed, there must be more than that otherwise all failed asylum seekers in the UK (significantly more than the 4900 number you quote) would be getting support. This fact would not be known by a person reading the consultation without legal knowledge and is misleading.

5 Children We are particularly concerned by the likely impacts on children of these proposals. According to Section 13 of the consultation, among the "principles of reform" are to "retain important safeguards for children". Yet there are no clear indications in the consultation document of what those safeguards are. Section 39 of the document, far from enumerating safeguards, simply tells us that the duties of local authorities and other agencies under the Children Act 1989 are limited by Schedule 3 of the Nationality, Immigration and Asylum Act The UK is a party to the Convention on the Rights of the Child and the measures contemplated here are incompatible with the principles of that Convention, the scope of which is that "each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status." (Article 2.1). Article 3.1 of the Convention provides that "In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration." See also Article 27: "1. States Parties recognize the right of every child to a standard of living adequate for the child's physical, mental, spiritual, moral and social development. 2. The parent(s) or others responsible for the child have the primary responsibility to secure, within their abilities and financial capacities, the conditions of living necessary for the child's development. 3. States Parties, in accordance with national conditions and within their means, shall take appropriate measures to assist parents and others responsible for the child to implement this right and shall in case of need provide material assistance and support programmes, particularly with regard to nutrition, clothing and housing." It remains to be seen what the impact of the proposed measures on families and children would be, but the only evidence we have is overwhelmingly negative. In a pilot from of similar measures, in which 116 families were affected, 35 families simply disappeared, losing contact with social services and giving rise to acute anxieties about the welfare of the children. (At the same time no families left the country as a direct result of the withdrawal of support.) See Barnardo's, The end of the road: The impact on families of section 9 of the Asylum and Immigration (Treatment of Claimants) Act 2004 Summary Report, Autumn It is submitted that there would be no saving to the public purse as a result of changes to section 94(5) of the 1999 Act. At paragraph 23 you estimated the costs to be 45 million; at paragraph 5 it was 73 million. In either case, the costs will merely be pushed onto local authorities and the third sector.

6 Burden of proof The consultation (section 28) argues that in the case where the "failed asylum seeker" claims to be unable to leave the country and applies for a continuation of support, the burden of proof to demonstrate this should fall on the individual, rather than on the Home Office. We consider this to be fundamentally unjust. The Home Office is a well-funded government department with all the resources of the state behind it. The individual involved has very few resources available to them and is almost certainly in a state of extreme poverty. Shifting the onus away from the state and onto the individual in this way is certain to result in injustice and hardship. Moreover, the Home Office is, at the very least, under an obligation to set out the kind of evidence that it would accept to support a continued claim on this basis, as well as making an assessment of whether that evidence can be acquired by persons who make a reasonable and sincere effort to do so. No such assessment of the evidential difficulties facing claimants and of how they might be overcome is made in the document. Impact on Local Authorities There appears to have been little consideration of the impact on local authorities and in fact you seem to have placed the burden on local authorities to advise you of what they expect the impact to be. What efforts have you made to inform local authorities about the consultation? What efforts have you made to ensure local authorities understand what the planned changes mean (the consultation document is vague in a number of areas particularly relating to local authority obligations)? We would anticipate that local authorities will find themselves on the front line dealing with homeless families and will find it extremely difficult to force families onto the street particularly where individuals state that they continue to fear persecution and are in the process of gathering evidence towards a fresh claim. Transitional Provisions You have asked for comments on the proposed transitional arrangements however this is impossible as the information provided is so vague. You have merely stated that you would put in place transitional arrangements, which would include case-by-case use of the powers in Schedule 3 of the 2002 Act with some changes. Further information is required in order for a proper consultation on these provisions. Conclusion We conclude that the proposed measures should be withdrawn as they expose extremely vulnerable people, including children, to acute hardship (including street-homelessness) and distress;

7 risk putting the UK in breach of its international humanitarian obligations; will foreseeably deprive vulnerable people who are unable to leave the UK of support, through no fault of their own, because they will be unable to demonstrate that inability to the satisfaction of the Home Office. That the lack of an appeal procedure against deprivation of support will foreseeably give rise to injustice. That all the existing evidence shows that the measures will not be effective in securing their stated objectives. That a more cost effective manner of making savings for the public purse would be to use these resources to improve Home Office decision-making in asylum cases and end the costly system of immigration detention, Bristol Refugee Rights Assisi Centre Lawford s Gate Bristol BS5 0RE

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