New Clause 9 - Late claim for asylum: refusal of support: appeals
Asylum and Immigration (Treatment of Claimants, etc.) Bill
10:45 am
Mr Mark Oaten (Shadow Secretary of State for Home Affairs, Home Affairs; Winchester, Liberal Democrat)
I apologise for raising several separate issues. I will detain the Committee for as little time as possible as we work through them.
New clause 9 takes us back to the process for appealing against decisions under section 55 of the Nationality, Immigration and Asylum Act 2002. Section 55 allows individuals as reasonable a period as practical to make their claims. If they do not do so within that period, support is not given.
When the Government first introduced section 55, they intended it to act as another deterrent—or perhaps as another carrot—to ensure that claims were made promptly. I do not think that they envisaged individuals, for all sorts of reasons, being unable to get support, but that is what the figures suggest has
happened. Depending on whose briefing one reads, between 7,500 and 10,000 individuals have been refused support since section 55 was introduced. I suspect that the way it kicked in slightly surprised Ministers, which is why it is important when discussing new clause 9 to consider how section 55 operates and to suggest measures to ensure that it does so more fairly.
There is no doubt that decisions taken under section 55 have led to serious problems and have added to this country's homelessness problem. Briefings from the Refugee Council and the National Association of Citizens Advice Bureaux all confirm that. They have examples of cases that have come to their attention as a result of the withdrawal of that support.
Some cases are surprising. NACAB reported the case of a pregnant Turkish woman who came to this country in September. She did not make her case for five days, as a result of which no support was given. She ended up presenting herself to a citizens advice bureau, not having eaten for a considerable number of days and in a poor state of health, all because she had failed to make her case within the statutory period, even though she was pregnant. Such cases give rise to real concern. As things stand, the only way to appeal against that decision is to seek formal judicial review. That is a good thing, and I am glad that it is in place, but the process is complex. New clause 9 would simplify it. How do the Government envisage appeals taking place under section 55?
As I said, this is a complex system. It involves judicial review, and has dealt with about 1,000 cases. Interestingly, it is hard to obtain statistics, but the Minister may be able to help me. Some 90 per cent. of cases that have gone through the process appear to have been successful, and some form of benefit appears to have been handed back as a result of judicial review. That suggests that we are back to the same old arguments advanced in debates on previous clauses; namely, that initial decision making in these cases is not good.
Given the success rate of those cases, there must be real concern about the way in which section 55 is being implemented. That also suggests that a system should be in place with a tier of different levels of appeal through which a case passes before it goes to judicial review, and that there should be a quicker and easier way of reviewing decisions. I understood that that was the Government's intention when they introduced section 55. Comments made when the legislation was introduced certainly suggested that the belief was that there would be an ability to appeal to the asylum support adjudicators, and that that would be the mechanism used to appeal against decisions. However, that appears not to be happening.
In a briefing to the parliamentary Labour party in October 2002, when asked if people could appeal a decision, the Minister made it clear that they could appeal to the asylum support adjudicator, and that the appeal would be held quickly, generally within days. However, the day-to-day lessons from those operating in the field suggest that that system is not operating,
and that the sole ability to appeal is to go to judicial review. Given the concern about section 55, the number of individuals who have had support withdrawn under it, and the number of cases that have been successful when they have gone to judicial review, there is a real case for the Government to consider toughening the procedure and putting in place a proper system for reviewing decisions. We know that the Home Secretary made some changes by putting in place a 72-hour period, but surely 72 hours is inadequate, irrespective of whether or not there is an appeal? I hope that the Government will carefully reconsider the principle behind section 55 and the way in which appeals can be made.
All our new clauses are designed to ensure that the legislation is as humane as possible. New clause 10 relates to problems of poverty, and is probing. It aims to explore how the regulations operate that govern back payments under NASS support. Processing errors appear to be creating considerable difficulties on the ground, so that individuals who have not had their payments as a result of a processing error are finding it extremely difficult to obtain a back payment. A legal review of the way in which back payments are made is being conducted. For an individual who has had their support withdrawn, the fact that a legal review is taking place is pretty meaningless. In some cases, considerable sums are involved.
The citizens advice bureau briefing gives an example of an Ethiopian single mother with three children; in summer 2003, the family did not receive three of its weekly National Asylum Support Service payments, which came to total of £412. That was because of an unexplained processing error by NASS. The family's regular payments were quickly restored and an acknowledgment of the mistake was made. However, despite continual requests by CAB for an examination of the issue of the missing three weeks—to try to sort out the £412—there were four months of negotiations between it and NASS. Eventually, NASS officials advised that NASS did not deny responsibility for the non-delivery of the family's three missing payments, but it could not process those back payments because there was an ongoing legal review of how to manage back payments.
I hope that the Minister will accept that that cannot be right, and that while, perhaps, the intention of the legal review is to work out what has been going wrong, it cannot be right that somebody's back payments are withheld when everybody acknowledges that they are entitled to them—particularly in a case such as the one to which I referred. For a single mum with three children, £412 is a lot of money, and it is wrong for people to be denied money to which they are entitled. I hope that new clause 10 will lead the Minister to say a bit more about how the Government intend to resolve what, according to my briefing notes, is a bit of red tape, which is causing a problem in dealing with back payments.
New clause 11 addresses concerns about hardship. It would ensure that asylum seekers whose support is terminated following a final decision on their asylum claim benefits would have a fixed grace period. At the moment, a grace period is in place; it is attached to the regulations. For those whose appeals have been successful, it is recognised that support should continue because they may need it while they try to find accommodation or try to access the main welfare benefit system, which they would be entitled to following their successful appeal. For those who have failed and were part of a voluntary departure, the money would be in place to help tide them over before that departure. It would enable them to organise their affairs during that period. The grace period for those who are successful is 28 days, and there is a 21-day period of continued support where cases are finally refused.
I hope that one is allowed to table a probing new clause. The intention of this one is to allow the Minister to establish whether she is aware that decisions are not being taken in that way in practice. Some individuals are receiving support for less than 28 days or 21 days. There are also concerns about synchronising notification of a decision with notification of the termination of support. I would be grateful if the Minister could look into that issue. If the entitlement is available for 28 days or 21 days, that is what should happen in day-to-day practice, and it is not.
New clause 12 relates to what I am told is a growing problem. It would provide some form of support—public funds—for individuals who have been victims of domestic violence. I will explain what we have in mind. Some women enter the UK as a married partner of a UK citizen. They have to remain married to that partner for two years before they gain full citizenship. If the marriage breaks up within that period, the woman would lose her right to automatic citizenship because she had not been here two years. That would mean that she had to leave the country because she had no citizenship.
The Government have recognised that there are significant numbers of cases in which a woman needs to leave her husband—perhaps because she is the victim of domestic violence—and does not want to have to hang on for two years, because that would be totally inappropriate. They have wanted to create an exemption for victims of domestic violence, and that acknowledgment is welcome and sensible. No woman should have to stay with a man for two years to get citizenship if she is subject to domestic violence.