14.1Immigration control: background
The law as a whole relating to asylum seekers and other people subject to immigration control is beyond the scope of this book. The following is a summary only, designed to give a few pointers on matters relating to community care specifically. Much of the legal case law involving community care revolves around s.21 of the National Assistance Act 1948; therefore this chapter should be taken in conjunction with Chapter 9 in particular.
Since about 1996, a significant part of community care for some local authorities has concerned the provision of services for asylum seekers and others who are subject to immigration control. The relevant law continues to be in a continual state of flux and uncertainty; a situation reflected in the large amount of legal case law on immigration matters generally, a significant part of which has involved local social services authority responsibilities. This represents an additional and unexpected layer of complexity in the community care system, which even in its basic form contains uncertainty enough. Local social services authorities have continued fully to explore legal loopholes and escape routes, referred to in Chapter 3 of this book, in order to extricate themselves from unwanted financial legal obligations.
In summary, there are perhaps three key questions for local authorities. First, in respect of asylum seekers is the all important decision about whether the asylum seeker is in need merely because of destitution or the effects of destitution – or whether there are needs beyond those which are destitution related. This is often referred to as the ‘destitution plus’ test. In the former case, the Home Office is responsible for relieving that destitution, whereas local authorities are responsible in the latter circumstance. Likewise, if a person is here lawfully but on condition of not accessing public funds, then the same destitution plus test has to be applied.
Second, asylum seekers apart, local authorities have to establish whether they are prohibited from assisting other people who may be subject to certain immigration-related rules. For instance, they are prohibited from assisting people with refugee status abroad, European Economic Area (EEA) citizens, unsuccessful asylum seekers who have failed to cooperate with removal directions, and other people unlawfully present under immigration legislation.
Third, however, these prohibitions do not prevent the local authority assisting a child; they are also disapplied if they would mean a breach of human rights or contravention of an EEA treaty.
The NHS is subject to separate rules about providing treatment and services for overseas visitors in the context of hospital treatment. Depending basically on degree of urgency, some treatment is provided free of charge, other treatment must be provided but is chargeable (albeit retrospectively) and still other treatment should not be given until payment is made.
Overall, provision of welfare support (including community care) for asylum seekers and others subject to immigration control is an especially complex and specialist area. This chapter attempts to give a number of pointers only. Other specialist sources of information should be consulted for greater detail.
14.1 IMMIGRATION CONTROL: BACKGROUND
Asylum seekers and people subject to immigration control have featured prominently in community care since at least 1996. In attempts to deal with this unexpected development, something of a ‘cat-and-mouse’ game has emerged, played out between central government, local government and the courts. Parliament has passed a great deal of legislation. Because of the fundamental issues involved, the courts have closely scrutinised this legislation for loopholes. And, owing to the financial implications, local authorities have made sustained attempts to avoid responsibilities that they have felt to be unfair.
In 1996 regulations were introduced to deny certain classes of asylum seeker access to income-related benefits including income support and housing benefit. The courts struck down these regulations as unlawful in the light of the rights implicit in the Asylum and Immigration Appeals Act 1993 (R v Secretary of State for the Home Department, ex p Joint Council for the Welfare of Immigrants).
Central government then reacted via the Asylum and Immigration Act 1996, so as to restore the effect of the regulations that the courts had just held to be unlawful. Consequently, certain asylum seekers were deprived of accommodation, funds, benefits and permission to work (for at least six months). A possible last resort was then identified; namely s.21 of the National Assistance Act 1948. This placed a duty on local social services authorities to arrange residential accommodation in certain circumstances for those in urgent need of it. The 1948 Act had not been on the list of exclusions contained within the 1996 Act.
Faced with potential unexpected and significant expenditure, the affected local authorities resisted and fought out several issues in the courts, including whether (a) s.21 was relevant at all to asylum seekers (R v Westminster CC, ex p A: it was); (b) cash payments could be made to those being provided with residential accommodation (R v Secretary of State for Health, ex p Hammersmith and Fulham LBC: they could not); (c) food vouchers could be given under s.21 even if residential accommodation was not being provided (R v Newham LBC, ex p Gorenkin: they could not); (d) accommodation alone – without food, laundry and other facilities for personal hygiene – could be provided (R v Newham LBC, ex p Medical Foundation for the Care of Victims of Torture: it could); and (e) choice could be exercised in relation to where the accommodation was arranged (R v Westminster CC, ex p P: the question was not answered).
One case was particularly significant. The Court of Appeal emphasised that the plight of the asylum seekers was horrendous and that the National Assistance Act 1948 was a prime example of legislation that was ‘always speaking’ in response to changing social circumstances (R v Westminster CC, ex p A). Up to October 2000, this type of case was being decided without recourse to the Human Rights Act 1998, which had not yet come into force. The courts instead referred on several occasions to an 1803 case (R v Inhabitants of Eastbourne), in which the ‘law of humanity, which is anterior to all positive laws’, had been invoked and which obliged that relief be given to prevent poor foreigners (Napoleonic refugees) from starving (see e.g. reference in R v Westminster CC, ex p A: High Court).
By 1998, it was clear that the pressure on some local social services authorities had become considerable. In 1999 and 2002 further major legislation was passed to give the basis of the present position. This was elaborated upon by further legislation in 2004 . The 1999 legislation was designed to shift the burden of asylum seekers away from local authorities; the subsequent case law and judicial interpretation suggests that the Act did not achieve this to the extent intended. The 2002 legislation aimed at reducing further the assistance given by local social services authorities to people subject to immigration control (other than asylum seekers).
The approach of central government, which effectively reduces to destitution asylum seekers and others – including those who may be particularly vulnerable for a variety of reasons – is seen by some as controversial and as using destitution as a public policy tool (e.g. Amnesty International 2006; Refugee Council 2004; Refugee Council 2006).
14.2 IMMIGRATION CONTROL: SOCIAL SERVICES
The following paragraphs outline the position concerning responsibilities owed by local social services authorities, in the community care context, to asylum seekers or other people subject to immigration control.
14.2.1 ‘DESTITUTION PLUS’ TEST
People to whom s.115 of the Immigration and Asylum Act 1999 applies (those subject to immigration control including asylum seekers) may not be provided with community care services by local authorities, if the need for care and attention arises solely (a) because the person is destitute; or (b) because of the physical effects, or anticipated physical effects, of destitution.
Basically, s.115 applies to people who are denied a wide range of social security benefits because they are subject to immigration control. A person is subject to immigration control if he or she is not an EEA national and (a) requires leave to enter or remain in the United Kingdom but does not have that leave; (b) has leave to enter or remain on condition of not having recourse to public funds; (c) has leave to enter or remain as a result of a maintenance undertaking by another person; (d) during an appeal concerning leave.
The prohibitions on community care services are contained in the National Assistance Act 1948 (s.21(1A) NAA)), the Health Services and Public Health Act 1968 (s.45(4A)) and the NHS Act 2006 (schedule 20, para 6). However, s.117 of the Mental Health Act 1983 is not listed. Nor is s.29 of the 1948 Act, or s.2 of the Chronically Sick and Disabled Persons Act 1970; this is presumably because it is assumed that the various disabilities required to trigger this legislation (see 11.1.3) would not normally be regarded as solely destitution related.
The prohibitions refer to destitution or to the physical effects, or anticipated physical effects of, destitution. The courts have held that mental illness can come within physical effects. So in one case a local authority failed to ask the question, whether depression arose solely from destitution, or whether there was another cause as well. In the former, but not the latter, circumstance, it would be prohibited from assisting (R(PB) v Haringey LBC).
A person is defined as destitute if he or she does not have adequate accommodation or any means of obtaining it (whether or not other essential living needs are being met); or if he or she does have adequate accommodation or has the means of obtaining it, but cannot meet other essential living needs (Immigration and Asylum Act 1999, s.95).
Ineligible for assistance through destitution. The applicant was a 51-year-old British citizen, holder of a British passport with right of abode in the United Kingdom. He was ineligible for social security benefits because he was not classed as habitually resident in the UK and did not speak English. The manager of a night shelter-where the man had been staying, but which was now closing-wrote on his behalf, seeking for residential accommodation to be provided by the local authority under s.21 of the National Assistance Act 1948.
An assessment was carried out by the local authority, with the conclusion that, though without benefits and homeless, the man was able-bodied and had worked previously as a ship’s captain and cook, was not physically disabled except for dental problems for which he could receive NHS treatment, and was aware of his situation. On this basis his application was refused.
The judge held that it was not ‘perverse’ of the local authority to have refused assistance. For instance, the present applicant was not ineligible from seeking accommodation under homelessness legislation, was not ‘under any physical or mental disability’, was able-bodied and of working age. He also referred to the Court of Appeal’s judgment in R v Westminster CC, ex p A, which emphasised that s.21 of the 1948 Act was not a safety net for anybody short of money or accommodation. Nor could the judge fault the local authority’s assessment, finding that it was ‘not arguable that they left out of that consideration any material matter’ (R v Newham LBC, ex p Plastin).
However, the courts have held that a disabled asylum seeker might be eligible for provision of accommodation under s.21 of the National Assistance Act 1948, but nevertheless have other essential living needs (e.g. for clothing) unrelated to the accommodation or to the amenities and requisites that go with it (see 9.2.3). In which case, the Home Office might have potential responsibility under s.95 of the 1999 Act for meeting those additional needs (R(O) v Haringey LBC).
The courts have also held that an asylum seeker, who was a nursing or expectant mother and in need of accommodation, did not have needs other than destitution, and should be a Home Office responsibility (R(Gnezele v Leeds City Council).
In the case of various categories of people subject to immigration control other than asylum seekers, there are further prohibitions in respect of community care services – even if their needs are not solely related to destitution.
14.2.2 ADULT ASYLUM SEEKERS
The effect of the Immigration and Asylum Act 1999, the amended community care legislation and associated legal cases, is that if an adult asylum seeker has a community care need going beyond destitution, then he or she will be eligible for community care services. This will be so, even if the level of need falls below the normal threshold of eligibility applied by the local authority (see 6.10 and 6.12).
Where the local authority has such an obligation, the Home Office is precluded from assisting under its own scheme to assist asylum seekers. This is because of the effect of s.95 of the1999 Act, allowing Home Office provision only if the person is destitute – which the person will not be if he or she is eligible for assistance with accommodation and essential living needs from a local authority under its social services functions.
Thus, in relation to the provision of residential accommodation under s.21 of the National Assistance Act 1948, an asylum seeker is eligible for assistance from the local authority if his or her need for care and attention (arising from destitution) is to a material extent made more acute by age, illness, disability or any other circumstances (i.e. the reasons why care and attention must be required under s.21). This test was set out in the following legal case involving not asylum seekers but others subject to immigration control – but nevertheless applicable to asylum seekers also:
Differentiating need solely caused by destitution from need otherwise caused. In a case involving two people subject to immigration control, the court considered two possible approaches. The first was to ask whether the applicant would still need assistance under the 1948 Act, even were he or she not destitute. The second was to ask whether the applicant’s need for care and attention was to any material extent made more acute by some circumstance other than the mere lack of accommodation and funds. The court was in no doubt that the second, more inclusive, approach was to be preferred. This was because the 1948 Act had been the last refuge for the destitute; and if there were to be immigrant beggars on the streets, ‘then let them at least not be old, ill or disabled’ (R v Wandsworth LBC, ex p O).
Although concerning non-asylum seekers, the test as formulated in the above case is applied also to asylum seekers to determine whether or not they are in need of care and attention (e.g. Westminster CC v NASS). The consequence is that the normal test of eligibility for community care services (see 6.12) is not straightforwardly applicable to asylum seekers.
Furthermore, the courts have to date maintained that entitlement to s.21 assistance by way of accommodation does not depend on a need for care and attention of a kind only available through the provision of residential accommodation. In other words, assistance is not confined just to those asylum seekers who would otherwise be eligible for s.21 accommodation (even if they did not have a need related to immigration status). So, asylum seekers have a substantially better chance of qualifying for s.21 accommodation than their ‘indigenous counterparts’ (R(Mani) v Lambeth LBC).
It has been argued that it is absurd that local authorities, rather than the Home Office, should have to support people who are eligible only because they are asylum seekers, rather than because they have an ‘eligible’ need, as normally understood, for s.21 accommodation. The courts, whilst acknowledging the substance of such concerns, have declined to say more (Westminster CC v NASS). The following court cases illustrate the test as to whether a person’s need is to a material extent made more acute for some reason other than lack of accommoda-tion or funds:
Eligibility for accommodation of wheelchair user with spinal cancer. An infirm, destitute asylum seeker had spinal cancer; she required accommodation that was wheelchair accessible. The local authority argued that, had she been an ordinary resident rather than an asylum seeker, she would not have required, or been eligible for, accommodation under s.21 of the 1948 Act. She would have had her own accommodation, at which other services could have been provided if required. The court disagreed and stated that she was eligible under s.21 (Westminster CC v NASS). Likewise, a destitute asylum seeker who had a leg abnormality needed help with bed-making, hoovering and heavy shopping; he too was eligible for s.21 accommodation (R(Mani) v Lambeth LBC).
HIV status and destitution. A local authority took a decision without medical evidence to decide that a person with HIV was not in need over and beyond destitution – and so was ineligible for assistance under s.21 of the 1948 Act. In other words, it was not the case that all people with HIV would automatically be eligible. However, the court stated that in the light of subsequent medical evidence, there would be at least a strong case for the local authority to reassess and find that the woman would be in need of care and attention (R(J) v Enfield LBC).
Asylum seekers with a status of HIV have long been a bone of legal contention. For instance, in one case:
Eligibility,AIDS and refrigeration. A woman with AIDS had been seriously ill-treated in Uganda by the Lord’s Resistance Army,and ill-treated and raped by the National Resistance Movement (part of the Ugandan security forces).She was a failed asylum seeker, although was pursuing her case to the European Court of Human Rights. This followed a rejection by the House of Lords of her appeal not to be deported (N v Secretary of State for the Home Department). In fact, subsequently, the woman lost her case against removal in the European Court as well. The court held that the fact that life expectancy would be reduced significantly, because the standard of treatment in another country would be considerably lower, did not of itself mean that article 3 (inhuman and degrading treatment) would be breached by removal. Exceptionally, it might do so, but not in this case (N v United Kingdom).
The local authority involved attempted to invoke the Department of Health guidance on ‘fair access to care services’, arguing that the guidance spoke of risk as a relative concept, thus allowing the local authority to argue that it need not provide accommodation. The judge rejected this attempt, especially as it appeared that the local authority was trying to supplant the important statutory questions under s.21 of the 1948 Act, with reference instead to guidance. The local authority also attempted to argue that care and attention in the form of accommodation was not required because the medication did not have to be refrigerated. The judge found this surprising (R(N) v Lambeth LBC).
However, the House of Lords subsequently considered another case of a person with HIV and subject to immigration control. The court emphasised that for care and attention to be needed, a person needed ‘looking after’ (see 9.1). This person was therefore not in need of care and attention from the local authority. This was because he was under the care of the National Health Service, took medication which had to be kept in refrigerated conditions, and needed to see a doctor every three months. But otherwise his illness did not affect him and he was able to look after himself (R(M) v Slough BC). The decision in this last case still left open the issue as to whether the local authority would be responsible if and when the man deteriorated in the future and so needed care. At that point, the question would be whether he needed care and attention solely because of destitution (or the anticipated effects of destitution) (see 14.2.1), in which case the s.21 duty under the National Assistance Act 1948 would not arise for the local authority – or because of some additional reason, in which case the duty would arise. One of the law lords stated that:
Need arising solely from destitution. The question would arise only once it was established that ‘the person has a need to be looked after – a need beyond merely the provision of a home and the means of survival. If a person reaches that state purely as a result of sleeping rough and going without food…then clearly the need for care and attention will have arisen solely from destitution. If, however, that state of need has been accelerated by some pre-existing disability or infirmity – not of itself sufficient to give rise to a need for care and attention but such as to cause a faster deterioration to that state and perhaps to make the need once it arises that much more acute – then, for my part… I would not regard such a person as excluded’ from the National Assistance Act (R(M) v Slough BC).
Nonetheless, the threshold, at which a person becomes eligible for assistance under the National Assistance Act 1948, remains a low one. Furthermore, the conditions in s.21, that might take an asylum seeker out of the ‘destitution only’ category, include not only age, illness and disability, but also ‘any other circumstances’, the ambit of which is potentially wide, as the following case shows:
Domestic violence. A woman had been granted leave to enter the United Kingdom from Pakistan to join her husband. She was subjected to violence; he tried to strangle her and threatened her with a knife; she was kidnapped and locked up in a house. She escaped. The local authority now considered whether it had a duty to accommodate her. Under s.115 of the Immigration and Asylum Act 1999 she was subject to immigration control, because her condition of entry was that she did not have recourse to public funds. This meant that unless she could show her needs stemmed from more than just destitution, she would not be eligible for local authority assistance under s.21 of the 1948 Act.
The court accepted that a background of domestic violence could be a relevant ‘any other circumstance’ for the purpose of showing this. Thus the local authority had to show that it had genuinely considered, when rejecting her application for assistance, whether the woman’s needs stemmed solely from destitution or whether she was more vulnerable because of such a background. In fact,the local authority could show this and the court would not interfere with its reasoning (R(Khan) v Oxfordshire CC).
18.104.22.168 Care and attention not otherwise available
Nevertheless, even with this low threshold, a need for care and attention not otherwise available still needs to be demonstrated in order for the legal duty to provide residential accommodation to be triggered:
Care and attention otherwise available from wife or family overseas. The court found that the local authority was acting lawfully in the following circumstances. A United States citizen with mental health problems was not currently living with his wife (a British citizen, who was disabled and suffering from epilepsy) because,following his discharge from hospital, she did not feel she could cope living with him. However, they were on good terms. He also had family in the United States. He was in the country lawfully but subject to immigration control insofar as he had leave to remain so long as he did not have recourse to public funds. He therefore came under s.115 of the Immigration and Asylum Act 1999. This in turn meant that the local authority would be prohibited from assisting him under s.21 of the 1948 Act, if his need for care and attention arose solely from destitution or the physical effects of destitution.