Update on asylum seekers and the new EU accession countries

Transcription

1 June 2004 Update on asylum seekers and the new EU accession countries Introduction On 1 May 2004, the European Union (EU) 1 expanded from 15 to 25 members. This briefing explains how enlargement of the EU affects nationals of the ten accession countries currently seeking asylum in the UK, but advisers should seek legal advice in individual cases. Relevant legislation The European Union (Accessions) Act 2003 has already come into force. The following regulations have been published: 1. Accession (Immigration and Worker Registration) Regulations 2004, Statutory Instrument New Immigration (European Economic Area 2 ) and Accession (Amendment) Regulations 2004, Statutory Instrument Social Security (Habitual Residence) Amendment Regulations 2004, Statutory Instrument 1232 To search for statutory instruments, go to: Background On 1 May 2004, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, the Slovak Republic, Slovenia, Cyprus and Malta officially joined the EU. The Accession Treaty gives nationals from the ten new member states joining the EU the right to travel freely across the EU. This means they can visit, live and study in any other EU member state. 1 European Union countries are: Austria, Belgium, Cyprus, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Gibraltar, Greece, Hungary, Ireland, Italy, Lithuania, Luxembourg, Malta, the Netherlands, Poland, Portugal, the Slovak Republic, Slovenia, Spain, Sweden and the UK. 2 European Economic Area countries are: all EU countries, Iceland, Liechtenstein and Norway. Registered address: Refugee Council, 3 Bondway, London SW8 1SJ Charity number: Company number:

2 The Accession Treaty also allows current member states to restrict the right of accession country nationals to work for a transition period of up to seven years from the time of accession to the EU. The UK will allow accession country nationals the right to enter to work. However, it has introduced some restrictions to free movement rights to accession country nationals from eight of the ten countries - all except nationals of Cyprus and Malta. The UK is, for example, restricting access to benefits and housing assistance for work seekers by tightening the habitual residence test, and requiring workers to register their employment (see section Support issues). EU accession country nationals For accession country nationals who are currently in the UK as asylum seekers, this will mean the following: Nationals from all the ten accession countries became EU citizens on 1 May Any outstanding asylum claims will be dealt with under existing EU regulations. Accession country nationals have the right to take up work. But they, with the exception of nationals of Cyprus and Malta, have to register in order to take up work. While in work, they may be eligible for income-related benefits and homelessness assistance. But they will not have the right to means-tested benefits and homelessness assistance during periods of unemployment. Nationals of Cyprus and Malta have the same rights as already existing EU nationals. The Government had intended that all NASS support for accession country nationals should cease on 1 May Thanks to a successful test case held on 4 May 2004, NASS have agreed to continue NASS support pending a full assessment of each case to ensure that people s human rights will not be breached by termination of that support. The full judicial review was postponed until 5 July 2004 to allow this to happen. Families likely to benefit from the case-clearing indefinite leave to remain (ILR) family concession exercise, which the Home Office announced in October 2003, will continue to receive support until their ILR is confirmed. Support will continue for 28 days thereafter, at which point they are fully entitled to benefits, to housing and to work. If people have not received a questionnaire and believe they may qualify, their adviser (but not the individual) should phone the ILR helpline on What happens to outstanding asylum applications? On 1 May 2004, accession country nationals still waiting for a decision on their claim under the 1951 Refugee Convention or the European Convention on Human Rights, will 2

3 be able to pursue their claim, but they will not be eligible for asylum support (but subject to the NASS review mentioned above if they have been getting NASS support). Their appeal rights have also changed. Section 94 of the 2002 Nationality, Immigration and Asylum Act lists the ten accession countries as designated countries. This means that asylum applications from these countries are subject to certification as clearly unfounded. This would normally mean that the applicant would only be able to appeal from outside the UK (so-called non-suspensive appeal). However, from 1 May 2004, appeal arrangements for nationals of the ten new EU countries are governed by the Immigration (European Economic Area) Regulations 2000 (as amended by the Immigration (European Economic Area) (Amendment No. 2) Regulations 2003) in the same way as for the already existing 14 EU member countries. This means that after 1 May 2004, EU nationals are still able to apply for asylum. But if their application is refused and certified as clearly unfounded, they will have no appeal rights at all not even a non-suspensive appeal right unless the application is refused but not certified as clearly unfounded. EU nationals enjoy freedom of movement. The UK government can therefore not remove an EU national on the basis that they applied for asylum but were unsuccessful with their application. Removal of an EU national is only possible on public policy, public health or public security grounds, and authorities should only use detention pending imminent removal. Conditions attached to temporary admission which require asylum seekers to report, cease to apply to all EU accession country nationals from 1 May Support issues NASS support Future asylum seekers from the accession countries will not be able to get support from NASS. Their asylum applications will be dealt with as above. Yet they will not be entitled to support in the meantime unless they can show that a refusal would mean a breach of their human rights. In recent weeks, the main concern has been for the 2,500+ cases already in the UK. Many, in fact, have been here for considerable time and are fully dependent on NASS support, and were threatened with having this support abruptly terminated on 1 May. As NASS has agreed to agree individual cases, the threat of this has been temporarily, but the threat of destitution is still acute for people whom NASS refuses to continue to support once they have made their assessment. 3

4 Work and benefits Asylum seekers from Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, the Slovak Republic and Slovenia, will have access to housing and council tax benefit if they are in low paid work provided they are registered under the new Home Office Workers Registration Scheme (see below). If they are not in work and registered with the Scheme, they will be expected to support themselves or otherwise leave the UK. If nationals of the above eight new member countries remain in continuous employment for 12 months or more, they will have full rights of free movement. (A break during this period of up to 30 days will be discounted.) This means that if they lose their job after that time, they will have access to other income-related benefits such as income-based jobseeker s allowance provided they retain EU worker status by remaining in the labour market and actively seeking work. The Home Office Workers Registration Scheme Nationals of the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, the Slovak Republic and Slovenia wishing work in the UK will be required to apply to register their employment with the Workers Registration Scheme. (Self-employment does not need to be registered). It is unclear how long it will take for applications to be processed, and individuals should register as soon as they can. Applicants will be required to submit the Home Office application form WRS with a fee of 50 as well as a passport/id card, two photographs and a contract or letter of employment. If the Home Office has retained an individual s passport, s/he should indicate this on the registration form. The form needs to be sent to: Work Permits (UK) Workers Registration Team Home Office Walsall Road Cannock WS11 0WS Forms can also be obtained by contacting the Application Forms Unit on (If you are deaf and hard of hearing, there is a free-phone text-phone service on ) Further information can also be obtained from the Home Office website at: Nationals of Malta and Cyprus If Maltese and Cypriot nationals are seeking asylum, and on 1 May 2004 become work seekers, they will be treated the same as already existing EU nationals who are seeking work. 4

5 This means they are not required to register with the Workers Registration Scheme. They will have the right to reside and look for work. They can have access to incomerelated benefits provided they satisfy the habitual residence test. However, the Department for Work and Pensions (DWP) considers that the period that an individual has been an asylum seeker is unlikely to count towards satisfying this test, as they would not be considered to have been lawfully present in the UK during their period as asylum seekers. This interpretation may well be subject to challenge. If nationals of Malta and Cyprus do not work and are not seeking work, or otherwise economically inactive, they will only have the right to reside in the UK if they are selfsufficient and are not an unreasonable burden on public funds. Disability benefits EU nationals including the EU accession country nationals are not excluded from noncontributory disability benefits. This means they can apply for disability living allowance if they have been resident in the UK for the qualifying period and meet the relevant conditions, for example, by showing that they have care needs or mobility needs. Housing assistance EU accession country nationals will be eligible for social housing/homelessness assistance if they secure employment and comply with the Workers Registration Scheme (or if they become self-employed). This could include the right to apply for housing as homeless or to register on a local authority housing allocation scheme (see below). If individuals are eligible for housing benefit, they will be able to seek rented accommodation from a private landlord or lettings agency. If they apply for social housing in areas where demand is high, there may be a long queue. People employed or self-employed who have nowhere to live, would be eligible to apply for help under the homelessness legislation. Housing authorities must provide accommodation for people who are eligible and homeless, and fall within a priority need category (for example, someone with a dependant child, or someone who is vulnerable). Non-vulnerable single adults are unlikely to be considered in priority need. Any EU national including new accession country nationals who are economically inactive, will only have the right to reside in the UK if they are self-sufficient and do not place an unreasonable burden on public funds. If they do not have the right to reside, they may not be eligible for social housing or homelessness assistance. 5

6 Local authority powers Schedule 3 of the Nationality, Immigration and Asylum Act 2002 prohibits local authorities from using various provisions to support European Economic Area (EEA) nationals, including Section 2 of the Local Government Act 2000, Section 21 of the National Assistance Act and Section 17 of the Children Act 1989, as well as the Children Leaving Care provisions for unaccompanied minors. Local authorities must, however, consider the use of these powers if they think it necessary to avoid a breach of the European Convention on Human Rights or EU treaty rights. Local authorities can also use powers under the Withholding and Withdrawal of Support (Travel and Assistance and Temporary Accommodation) Regulations 2002 ( the 2002 regulations ), which were made under Schedule 3, to provide EEA families with short term (five to ten days) accommodation and support, pending return, and the cost of travel to return to their country of origin. In addition, local authorities can also provide the cost of return travel to single EEA nationals. If a family fails to take up an offer to travel, the only support available will be from a local authority, and will only be available to the child under the Children Act. (But see also below on Home office arrangements in place). The recent Court of Appeal decision in M v Islington made it clear that local authorities have a duty to carry out Children Act assessments and consider the effect of transferring a child outside the UK or refusing support on human rights grounds including the right to family unity under Article 8. This case is likely to make it difficult for local authorities simply to accommodate EEA nationals for five to ten days pending a ticket out of the UK without detailed enquiries and a full assessment, and may require them to provide accommodation for a longer period of time. How will individual NASS assessments work? The assessments will take place as a home visit where the client will be interviewed. NASS are sending the first batch of letters out on Friday 28 May, with the rest being distributed during the week commencing Monday 31 May. It is expected that the first wave of assessments will take place on Thursday, 3 June. Clients will be given three days notice of the date that NASS will be visiting them. Although an interpreter will not be present, NASS will use Language Line telephone interpreters if necessary. It is very important that clients are in their accommodation on the date specified by NASS otherwise, their claim for continued support could be seriously affected. A recommendation will be made straight after the interview and an official decision will be made in writing shortly afterwards. If NASS decide that support should not be continued, clients will be given written notice and a statement of the reason for that decision. Each case is judged on a case-by-case basis. Therefore the grace period given before support is terminated will also vary, although NASS have stated that this will be between 14 and 28 days. 6

7 NASS have made it very clear that continued support for EU accession nationals seeking asylum is a temporary measure and they wish this to be conveyed to clients. The three principal options open to people still remain the same: 1. to find work and accommodation; 2. to seek support from family or friends; 3. to leave the UK, in which case the Home Office or local authorities can assist. Clients will have to clearly show that they are either looking for work, are seeking to become self-sufficient or are trying to return home before they are granted provision of the temporary support. They may have to continue to do so on a regular basis in order to have their support sustained. However, this will not carry on for an indefinite period. NASS are aware that it is very problematic for people trying to access work without any passports or any recognised form of ID. NASS have agreed to consider putting together a standard letter for clients which they can take to jobcentres and employers, and which would be officially recognised as proof of identification. People wishing to return to their country of origin The Home Office have set up a process for assisting EU nationals to return to their country if they do not wish to exercise their Treaty rights. To apply for assistance, clients or advisers can call the Home Office on A flight will be arranged for clients as soon as possible after your application has been considered. Transport to the airport will also be provided if necessary and support will continue until arrangements are made. Support will end at the point of departure and should clients fail to travel, support will not be re-instated. Clients will be required to withdraw any outstanding asylum claims or appeals. People can still exercise their Treaty rights and return to the UK when they wish. NASS will take responsibility for all clients referred to them by local authorities. Refugee Council concerns NASS has advised that asylum seekers from the ten accession countries who lose NASS support on 1 May 2004, will have the following three options: 1. They register as workers under the Workers Registration Scheme. As workers, they and their families will be eligible for certain income-related benefits. 2. They remain in the UK as jobseekers but become self-supporting, for example, by staying with friends or relatives. 3. They leave the UK. 7

8 The Refugee Council has the following concerns: We are concerned that people will not be able to exercise any of the above options but suddenly lose all means of support, and be expected either to leave the UK or to support themselves. 2,571 main asylum applicants are in this position the scale of destitution resulting from this could therefore be considerable. There may also be an impact on race relations in communities if certain groups likely to suffer racial harassment, such as Roma, who are likely to have language and probably even literacy problems, become homeless and visible to the community. The sudden withdrawal of benefits for this group may be the subject of a legal challenge on a number of fronts and we are seeking advice about this. There will be many people who are unable to access housing, benefits and support to which they are entitled to quickly enough through no fault of their own but because of the potentially large volume of applications and official delays such as: Delays in securing employment or self-employment Delays in processing work registration applications Delays in processing national insurance number applications Delays in processing fresh benefit applications by the DWP, the Inland Revenue and local authorities Delays in processing social service assessments There has been inadequate planning, notice and consultation about the regulations and proposed policy changes. There is insufficient time to notify people resident in the UK who are directly affected by them. This will have a huge resource impact on the advice and voluntary sector as well as on local authorities, as they will have to attempt to explain a complex raft of new provisions at very short notice. It is likely that many will be refused further support following the process of reassessment, reluctant to return home and yet be denied any access to benefits or housing. The needs of these people may still be the subject of a further legal challenge. For general information enquiries, the Refugee Council Information Desk at: info@refugeecouncil.org.uk, or telephone our Information Line on (open Mondays, Wednesdays, Fridays, 10am to 1pm). 8