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Asylum Procedure

Part 1: Introduction to Asylum Law

Immigration Law Asylum Law

Part 2: Introduction to Asylum Procedure

Applying for Asylum Port Applicants In-country Applicants Safe Third Countries Safe Countries of Origin The Decision-making Process Statement of Evidence Form Unaccompanied Minors and SEFS One Stop Notice and Statement of Additional Grounds Interviews Young Unaccompanied Asylum Seekers and Interviews Age Disputes Detention of Unaccompanied Minors The Decision Decision-making and Children Persecution of Children If the Claim is Successful If the Claim is Refused Where there is No In-Country Right of Appeal Child Applicants and Non-Suspensive Appeals The Adjudicator/Immigration Judge The Asylum and Immigration Tribunal Interpreters and Translators Judicial review Non-removal of Unaccompanied Minors

Section 1: Support from National Asylum Support Service

Applications to National Asylum Support Service Dispersal Unaccompanied Minors Not Normally Dispersed Asylum Seeker Families Destitute Adult Asylum Seekers Late Claims For Asylum NIAA 2002 Section 55 Challenges to Section 55 NASS Guidance on Late Claims Late Asylum Claims From Families and Unaccompanied Children Failed Asylum Seeker Families Failed Asylum seekers Without Children IAA 1999/Section4/Hard Cases Support 2004 Act Changes to Hard Cases Support Appeals: the Asylum Support Adjudicators Destitution – The Position For Unaccompanied Minors

Section 2: Local Authority Support

Support for People who Claimed Asylum Before 3 April 2000 Are Post-April 2000 Asylum Seekers Entitled to Local Authority Support? Needs Arising Solely Because of Destitution or its Physical Effects Needs Arising Otherwise than Solely Because of Destitution SWSA Section 12A Consequences of the NASS Duty to Destitute Asylum Seeker Families Local Authority Duties to Unaccompanied Minors What Happens When a Young Unaccompanied Asylum Seeker Turns 18? The Hillingdon Case in Scotland Summary of Local Authority Duties Destitution – The Position for Unaccompanied Minors

Status, Rights & Issues

What is an Asylum Seeker? Families What are Unaccompanied Minors or Separated children ? Unaccompanied Minor Asylum Seekers Rights to Stay Overseas Travel Travel Documents Family Reunion Healthcare Marriage Work Housing Homelessness Education Detention Legal Aid Forms of Leave to Remain in the UK Leave to Remain on Human Rights Grounds Adoption Fostering Female Genital Mutilation Asylum and Immigration Implications for HIV/AIDS Diagnosis Mental Health Issues Destitution Minors

Legislative Framework

Relevant Provisions of the Children (Scotland) Act 1995, and their Interface with Immigration and Asylum Provisions Selected International Materials European Union Materials Regulations Directives Soft Law Measures Some UK Statutes on Immigration and Asylum Secondary Legislation Procedure Rules Statutory Instruments Soft Law Relevant Social Work Legislation

Failed Asylum Seeker Families

Summary

Families are still entitled to get NASS support after their asylum appeals have failed, up until directions have been set for their removal from the UK (i.e. until a flight has been arranged for them to leave the UK but the family have not got on it) or the Home Secretary has certified that they have unreasonably failed to leave the UK voluntarily (not in force at time of writing; see below). After that, if NASS withdraws support, local authorities have to provide assistance to children, and also to adults to whom assistance has to be provided in order to avoid a breach of a person's Convention Rights or their rights under European Community Law. NASS accommodation and support may be withdrawn from a family where they are failed asylum seekers and they have not got on a flight arranged for them (i.e. they have failed to comply with removal directions NIAA 2002 Schedule 3(6)).

Secretary of State's Certificate; 2004 Act Amendment

Also, if the Secretary of State certifies that in his opinion the family has failed without reasonable excuse to take reasonable steps to leave the UK voluntarily or to place themselves in a position in which they are able to leave the UK voluntarily, then once 14 days since the issue of the certificate have elapsed, financial support cannot be provided for the family by the local authority (Sched 3, para (1) and para 7A (inserted by the Asylum and Immigration (Treatment of Claimants etc) Act 2004 s 9(1). This section was enforced on 1st December 2004 by SI 2004/2999.

There are three exceptions to this. The first is that accommodation can still be provided to failed asylum seekers by NASS on condition that they undertake community work (Asylum and Immigration (Treatment of Claimants etc) Act 2004 s 10 enforced on 1st December 2004 by SI 2004/2999)) (the Parliamentary Joint Committee on Human Rights has expressed the view that this is contrary to the prohibition on slavery in the ECHR). The second exception is that local authorities still have the power and duty to give social welfare services to families (and not just children) under (inter alia) the Social Work (Scotland) Act 1968 and under the Children (Scotland) Act 1995:

'to the extent necessary…for the purpose of avoiding a breach of (a) a person’s Convention Rights or (b) a person’s rights under the Community treaties.' (NIAA 2002 Schedule 3(3).

Rights under the Community treaties mean those derived from European Union law.

The Convention Rights mean those Articles of the European Convention on Human Rights which are included in the Human Rights Act 1998. The Human Rights Act 1998 says that so far as possible, legislation must be read and given effect to in a way which is compatible with Convention Rights, and public authorities must act in accordance with Convention Rights.

Article 8 ECHR says that everyone has the right to respect for private and family life, home and correspondence, and that a public authority shall not interfere with the exercise of this right except in accordance with the law and such as is necessary in a democratic society. Interference could be necessary in a democratic society if it is in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

A weighing exercise is performed to determine whether refusal of support would be disproportionate and if it can be shown that it is necessary to accommodate the family together in order to avoid a breach of the child’s right to private and family life, then normal social work duties still apply.

It could be argued that the purpose of the Children (Scotland) Act 1995 supports a reading of s 22 which would allow the family to stay together for the following reasons: CSA 1995 was explicitly designed to take account of the UN Convention on the Rights of the Child and the ECHR, and s 22(1)(b) speaks of promoting the upbringing of children by their families. At any stage after NASS support has been removed, the local authority can provide support or assistance to a child (NIAA 2002 Schedule 3(2).

Pilot Scheme for Section 9

A pilot scheme dealing with the practicalities of implementing section 9 was commenced in various English cities from Wednesday 1st December 2004. These cities were Manchester, Leeds/Bradford and North London, and were chosen for reasons of resources, numbers of families residing there and the fact that no other pilots were operating simultaneously.

The pilot operates in stages. Firstly, once a family has received their final asylum refusal they will then be sent a letter from the Immigration Service (IS) requiring them to report weekly to the local Enforcement Office of the IS. At each visit will have to satisfy immigration officials that they are taking sufficient steps to return to their country of origin, by producing any relevant documentary evidence.

The IS will also advise the local authority that a family within their jurisdiction may have their support withdrawn.

The next stage of the process involves the family being called for interview with immigration staff. At this interview, the family will be read a warning advising of the responsibilities upon them, and will be required to sign a declaration confirming they understand the process. They will be asked questions relating to the steps they are taking to comply with removal and also the accessing of support by them.

If the family did not attend the interview or have not satisfied the IS that they are taking reasonable steps to leave the UK, the IS will issue a warning letter and the 'certification' process will begin.

Case files are at this stage passed to NASS who consider whether a decision to withdraw a family's support will amount to a breach of Articles 3 or 8 of the ECHR. A letter will be issued to the family with a certificate advising whether their support has been withdrawn. If, however, NASS considers withdrawal of support will breach the ECHR, the letter will advise the family of this but will also make clear that support will not continue indefinitely. Continuation of support will be subject to regular review. A decision to withdraw support can be appealed to the Asylum Support Adjudicator, but withdrawal will still occur as scheduled and NASS will later advise the family of the outcome of the appeal.

The IS has stated that the above outlined process will take a minimum of 8 weeks. Under the pilot exercise the first withdrawals of support may already have taken place. At the conclusion of the pilot, the process is to be reviewed and all NGO's and LA's will be able to offer input and suggestions. A decision to further roll out section 9 has not been taken as planned.

Challenging Decisions Made Under NIAA 2002 Schedule 3

There is a right of appeal to an Asylum Support Adjudicator against the Secretary of State's certification that a failed asylum seeker family has without reasonable excuse failed to leave the UK voluntarily (Asylum and Immigration (Treatment of Claimants etc) Act 2004 s 9(3) enforced 1st December 2004 by SI 2004/2999). See section below Appeals: the Asylum Support Adjudicators (there is no appeal against any other decision under Schedule 3; judicial review would be the only remedy).