New Clause 9 - Late claim for asylum: refusal of support: appeals

Asylum and Immigration (Treatment of Claimants, etc.) Bill – in a Public Bill Committee at 10:45 am on 27th January 2004.

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'In section 55 of the Nationality, Immigration and Asylum Act 2002 (late claim for asylum: refusal of support), omit subsection (10).'.—[Mr. Oaten.]

Brought up, and read the First time.

Photo of Mark Oaten Mark Oaten Shadow Secretary of State for Home Affairs, Home Affairs

I beg to move, That the clause be read a Second time.

The Chairman: With this it will be convenient to discuss the following:

New clause 10—Asylum support: back payments—

'In Schedule 8 of the Immigration and Asylum Act 1999 (provision of support: regulations) after paragraph 12, insert—

''13 The regulations may make provision for the back payment of a regular support payment not received by the claimant''.'.

New clause 11—Termination of NASS support—

'For subsection 94(3) of the Immigration and Asylum Act 1999 substitute—

''(3) For the purposes of this Part, a claim for asylum is determined at the end of such period beginning—

(a) on the day on which the Secretary of State notifies the claimant of the associated termination of his or her support, or

(b) if the claimant has appealed against the Secretary of State's decision, and the appeal has been disposed of, on the day on which the Secretary of State notifies the appellant of the associated termination of his or her support, as may be prescribed.''.'.

New clause 12—Victims of domestic violence: recourse to public funds—

'Individuals who apply for indefinite leave to remain in the United Kingdom under paragraph 289A of the Immigration Rules (Refusal of indefinite leave to remain in the United Kingdom as the victim of domestic violence) shall have recourse to public funds while their application is being considered.'.

New clause 20—Late claim for asylum: refusal of support—

'For section 55(1) of the Nationality, Immigration & Asylum Act 2002 (c.41) there is substituted—

''(1) The Secretary of State may not provide or arrange for the provision of support to a person under a provision mentioned in subsection (2) if—

(a) the person makes a claim for asylum which is recorded by the Secretary of State,

(b) the Secretary of State is satisfied that the person's claim for asylum is manifestly unfounded, and

(c) the Secretary of State is not satisfied that the claim was made as soon as reasonably practicable after the person's arrival in the United Kingdom,

for more than a period of 28 days after the person is notified of the Secretary of State's decision.''.'.

New clause 21—Benefits to failed asylum seekers—

'(1) Save for the services listed in subsection (2), a person who is a member of a group listed in subsection (3) is ineligible to receive benefit in cash or kind at the expense wholly or partly of public funds whether nationally or locally raised.

(2) The services are—

(a) those services which are provided indiscriminately on a non-individual basis;

(b) treatment of infectious disease;

(c) treatment in response to a health emergency;

(d) care immediately before and after maternity; and

(e) such other services as the Secretary of State may by order designate.

(3) The groups are—

(a) those persons covered by section 7 of this Act; and

(b) in relation to any particular service or benefit, any EEA national—

(i) whose country does not offer a broadly equivalent level of service or benefit to a citizen of the United Kingdom in that country as is offered to a citizen of the United Kingdom in the United Kingdom; and

(ii) who has been resident in the United Kingdom for less than 12 months.

(4) The Secretary of State shall lay before Parliament guidelines on the interpretation of subsection (3) to which providers of services not exempted by subsection (2) shall have regard.'.

Photo of Mark Oaten Mark Oaten Shadow Secretary of State for Home Affairs, Home Affairs

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.

Photo of Andrew Turner Andrew Turner Vice-Chair, Conservative Party 11:00 am, 27th January 2004

I am listening carefully to the hon. Gentleman, but I am not sure that I understand why it is necessary for a woman to remain with a man if he is subjecting her to domestic violence. She could, of course, return home.

Photo of Mark Oaten Mark Oaten Shadow Secretary of State for Home Affairs, Home Affairs

Indeed. One possibility is that someone suffering extreme domestic violence will want to return home, but there are other scenarios, two of which spring to mind. First, if someone is subject to domestic violence, but has been here for 18 months and built up

a set of friends, alliances and a support network, she may not necessarily want to go home. She may want to stay with her friends. She may want support; She may have been through a pretty difficult time.

Secondly, a woman may well, quite rightly, want to take legal action against her partner, her husband. To do so, she may need to remain in the country for a time to be able to see the action through. We should not just assume that someone who wants to escape from a marriage because she is suffering domestic violence will automatically return to the country from which she came to this country. There are many circumstances in which she may want to stay.

That is why Liberal Democrat Members suggest in new clause 12 that for the period when such individuals have left, there should be in place a system whereby there is some form of financial support or welfare. As the Government acknowledge, they do not want to put an individual in a situation in which they have to stay in the marriage until two years have elapsed. One pressure that keeps someone in an unhappy marriage may be that there would be no financial support for them if they left and sought to stay in this country. I hope that the Minister will give some comfort on that issue, as the Government have already done, and that a system will be put in place to help individuals in those difficult situations.

New clauses 12, 11 and 10 are designed to probe the Government on what is going on where there seem to be breakdowns in the system. On new clause 9, I feel strongly that the way in which section 55 of the Nationality, Immigration and Asylum Act 2002 operates is unsatisfactory, and that the Government should stick by their initial promise that there would be a speedy form of appeal on decisions, rather than the current system, which is slow, complex and requires some form of judicial review.

Photo of Neil Gerrard Neil Gerrard Labour, Walthamstow

I want to speak mainly to new clause 20, but I will first comment on what the hon. Member for Winchester said on new clause 12. I have a great deal of sympathy with that, because I have dealt with a number of cases in which women have come to this country as a result of marriage, but then found themselves victims of domestic violence. It is not only the scenarios that he painted that would make women in those situations quite reluctant to return to their countries of origin. In cases in which women are here as a result of a marriage that both their family and their spouse's family were involved in arranging, it may be extremely difficult for them to return to their country of origin. They may not be welcomed by their family there. I have certainly seen such a situation arise.

I hope that the Government will consider the new clause. I know that people still have to prove their case. When women go to the Home Office and say that they have been victims of domestic violence, it is just not a matter of their saying so. The Home Office expects

reliable evidence and police reports to be produced to back up the case. However, we ought to consider giving some support to people in that situation while their claim is being is considered.

New clause 20 concerns section 55 of the 2002 Act. Ideally, that section ought to disappear completely. New clause 20 is an attempt to ameliorate some of its effects. Those of us who were involved in discussions on the 2002 Act will remember that section 55 was never discussed in Committee and was introduced late in the day, on Report, with little debate. When we asked Ministers what would happen and how the provisions would be operated, we were assured that section 55 had not been designed to deal with people who had been in the country for only a short period. Ministers gave such assurances in both Houses. On Report in the House of Lords, for instance, the then Minister talked about people who had entered the country and worked illegally, or whose entry visa had expired, but who claimed asylum, perhaps when they were arrested, as another way of staying in the country. Why should we support people who claim in those circumstances? In discussing section 55, the Home Secretary talked about the need for a reasonable period before presuming that people had entered the country for another reason and had been sustaining themselves.

We were also told that although there was no formal right of appeal, it would be possible for people to have their cases reconsidered. Either they could make further representations with new information or they could request that the decision be reconsidered on Human Rights Act grounds. That would imply that NASS might consider whether there were Human Rights Act grounds to support someone when making its initial decision. On Second Reading, the Home Secretary announced that people would not be refused support. However, some of us were rather surprised when he said that 72 hours would replace the previous guideline of 24 hours. A number of hon. Members who had taken an interest in the matter, including myself, could not remember any announcement of a 24-hour guideline being applied. If there was ever an announcement, I should be grateful if someone could remind me of when it was made, because I had never heard that figure until the Home Secretary mentioned it on Second Reading.

What other issues arise? Many people outside the House find it difficult to understand that the refusal of support has nothing whatever to do with the strength of the asylum claim. People outside this place will perhaps understand the argument that someone with a totally unfounded asylum claim should not be supported through public funds. However, they will find it difficult to understand the argument that, whether or not there is any foundation to someone's asylum claim, there will be circumstances where we absolutely refuse to support them. I have always thought it a strange effect of section 55 that it takes no account of whether the asylum claim had any strength

at all; Ministers stressed that when the Bill was being discussed. That effect is addressed to some extent in new clause 20, with the reference to an asylum claim being ''manifestly unfounded''.

The hon. Member for Winchester mentioned what is happening with statutory and judicial reviews, and the fact that the administrative court has been clogged up with applications for reviews of section 55 decisions. The judges in the administrative court have said some harsh things about how section 55 is producing a large number of cases going to court. As I said in my opening remarks, I should like section 55 to be repealed, because I do not see the justification for putting people on the streets, purely on the basis of quite arbitrary decisions about when an application was made, not whether it was justified.

New clause 20 would allow an amelioration of section 55 and would safeguard people whose claims had some obvious merit. It would also mean that there would be a grace period of 28 days before people were put on the streets without any support. I raise the matter along with the other amendments in this group, because this is an area that we have not got right. We are still making decisions that are leaving people destitute and on the streets, forcing claimants to live on the charity of others and putting pressure on people who have few resources themselves, just because they happen to be friends or from the same community as someone who has been denied support. It is an area that we should re-consider, perhaps on Report, if the new clauses are not acceptable to the Government.

Photo of Andrew Turner Andrew Turner Vice-Chair, Conservative Party 11:15 am, 27th January 2004

I feel that I ought to respond in part to some of the other new clauses in this group, or at least give my view on them, before moving on to new clause 21. I have always regarded section 55 as a good section because it seeks to distinguish between those who arrive believing that they are claiming asylum, and those who decide for some reason after they arrive that they are going to claim asylum. Even with the limited number of asylum seekers in my constituency, I recognise, along with Ministers and other hon. Members, that there are some who manifestly have decided only to become asylum seekers because of some factor or experience since they arrived in the UK. It could be because they left a husband who did not measure up to expectations, or they discovered that their work permit had run out, or they never had a work permit and were about to found out, or they had committed a criminal offence for which they could be deported. There is a range of reasons with which I am sure hon. Members will be familiar. That is why I feel that section 55 is a good one. I fear new clause 12 being agreed, because new clause 15, which we shall come to later, would be an even more valuable contribution to the legislation. As the hon. Member for Walthamstow intimated, if special provision is to be made for people in special circumstances, it is essential that the Home Secretary has a means of judging—

It being twenty-five minutes past Eleven, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned till this day at half-past Two o'clock.