Published in November 2016 Legal Action - see www.lag.org.uk
12
LegalAction November 2016
Opinion and analysis
Housing difficulties for destitute
migrant families unresolved
Connor Johnston examines the new
provisions in the Immigration Act
2016 on local authorities’ duties to
destitute migrant families regarding
accommodation and finds them wanting.
Connor Johnston
The Immigration Act
2016 places significant
restrictions on the
ability of certain
migrant families to
access accommodation
and support under
Children Act 1989 s17.
T
he changes the Immigration Act
(IA) 2016 makes to the right to
rent, outlined in Adrian Berry’s article last
month (October 2016 Legal Action 13), restrict
the ability of certain migrants to access
accommodation in the private sector. However,
the Act also makes a number of important
changes to the ability of this group to obtain
accommodation from their local authorities.
Specifically, it places significant restrictions on
the ability of certain migrant families to access
accommodation and support under Children
Act (CA) 1989 s17, as well as whittling down
the support available to migrant care-leavers
under that Act and tightening the criteria that
failed asylum-seekers must satisfy in order to
obtain accommodation and support under
the Immigration and Asylum Act (IAA) 1999.
It is the first of these changes on which this
article will focus, as this is the safety net to
which housing practitioners are accustomed
to turning when seeking to help migrant
families who are not eligible for mainstream
homelessness assistance.
The existing regime
Paragraph 10A support
By way of reminder, currently, under CA 1989
s17, local authorities are under a general duty
to provide a range of support (which may
include accommodation) in order to safeguard
and promote the welfare of children within
their area who are in need. However, these
powers are circumscribed by Nationality,
Immigration and Asylum Act (NIAA) 2002
s54 and Sch 3. The effect of Sch 3 is to exclude
migrant families who are in the UK in breach
of immigration laws from accessing support
save to the limited extent necessary to avoid
a breach of their rights under the European
Convention on Human Rights (ECHR) or under
EU law.
The new regime
The application of these exclusions led to a
number of important challenges in the courts
as well as frequent disputes between applicants
NovemberLA_12_HousingFeature.indd 12
and local authorities. Perhaps unsurprisingly,
these disputes led some local authorities to
complain to the Home Office that the s17/Sch
3 regime ‘can be burdensome … to administer,
involving complicated assessments and
continual litigation to establish what support
should be provided in what circumstances’
(Reforming support for migrants without
immigration status: the new system contained in
Schedules 8 and 9 to the Immigration Bill, Home
Office, January 2016, page 4, para 14).
The new provisions contained in IA
2016 s68 and Sch 12 represent – according to
Reforming support for migrants, page 4, para
15 – an attempt to rectify this, by means of a
number of amendments to NIAA 2002 Sch 3.
The key amendments with which this part of
the article is concerned are the new paras 3A
and 10A that are to be inserted into Sch 3 (by IA
2016 Sch 12 paras 6 and 10 respectively).
The devil is in the detail and practitioners
will no doubt want to examine the new
provisions closely. But, in outline, the
amendments create an entirely new framework
for supporting destitute migrant families who
require leave to enter or remain in the UK
but do not have it, and also Zambrano carers
(Zambrano v Office national de l’emploi Case
C-34/09, 8 March 2011). These families will no
longer be able to access support under CA 1989
s17 (save for one important exception to which
we will return below) and instead should,
notionally, be provided with support under
para 10A. This new regime does not apply to
asylum-seeking families, who will continue to
be eligible for support under IAA 1999 s95.
To be eligible for para 10A support an
individual must (per para 10A(1)):
•
•
•
•
be destitute;
have a dependent child with him or her;
not be a ‘relevant failed asylum seeker’; and
satisfy condition A, B, C, D or E (para
10A(3)–(7)).
Whether a person is destitute is, by para
10A(12), to be determined in accordance with
IAA 1999 s95(3)–(8). In outline, a person is
destitute if he or she does not have adequate
accommodation or any means of obtaining it,
or cannot meet his or her other essential living
needs.
A relevant failed asylum-seeker is defined
(at para 10A(2)) as being a person:
• who is receiving support under the new IAA
1999 s95A (which replaces support for failed
04/11/2016 14:26
Published in November 2016 Legal Action - see www.lag.org.uk
Opinion and analysis
LegalAction November 2016
asylum-seekers under s4 of that Act);
• who has an extant application for such
support; or
• for whom there are reasonable grounds
for believing that such support would be
provided if he or she did apply.
Broadly, conditions A–E cover situations
where the applicant has an outstanding
application for leave to remain, most probably
on ECHR article 8 grounds, an outstanding
appeal or right of appeal, where he or she has
exhausted any appeal rights but is not failing
to co-operate with removal arrangements
or where support is needed to safeguard the
welfare of a dependent child (eg in Zambrano
cases).
The details of the new scheme are to
be set out in regulations that have not yet
been published, but the type of support that
may be provided includes accommodation,
subsistence in kind, or cash or vouchers
to pay for subsistence (para 10A(11)). The
government’s intention is that the scheme
will be kept to an austere minimum, reflecting
a belief that the ‘main social care need of
families without immigration status seeking
local authority support is accommodation and
subsistence to prevent destitution’ (Reforming
support for migrants, page 14, para 59).
Crucially – and this is the exception referred
to above – support under CA 1989 s17 will
remain available in respect of any child who
has needs over and above this, alongside para
10A support.
Although not immediately apparent from
the wording of the provision, support under
para 10A is to be provided by local authorities
(Reforming support for migrants, page 12, para
52), which will retain an ability to provide
support on an interim basis while an applicant’s
circumstances are considered.
The amendments
create an entirely
new framework for
supporting destitute
migrant families who
require leave to enter
or remain in the UK but
do not have it.
NovemberLA_12_HousingFeature.indd 13
What will this mean in practice?
At first blush, the new regime is not vastly
different from the old: an austere regime
providing a bare minimum of support to those
here unlawfully in order to avoid destitution.
But there are a number of important practical
consequences of the changes.
The first point is that the introduction
of para 10A support takes place alongside
new restrictions on the availability of asylum
support, also contained in the IA 2016. At
present, IAA 1999 s94(5) contains an extended
definition of the term ‘asylum-seeker’, which
has the effect that failed asylum-seeking
households containing a dependent child
under the age of 18 continue to be regarded
as asylum-seekers until the child reaches his
or her majority, so long as they remain in the
UK. This means that failed asylum-seeking
families can continue to access asylum support
under IAA 1999 s95. IA 2016 Sch 11 para 7(5)
abolishes this extended definition, so failed
asylum-seeking families will no longer be able
to access IAA 1999 s95 support. They may
potentially be able to access the support that is
to be made available to failed asylum-seekers
under the new IAA 1999 s95A, inserted by IA
2016 Sch 11 para 9, but they will only qualify for
such support if, per IAA 1999 s95A(1)(d), they
face a ‘genuine obstacle to leaving the United
Kingdom’. This is intended to encompass only
those without documents or who are unfit
to travel (see Reforming support for migrants,
page 8, para 35). This is likely to be a relatively
small proportion of failed asylum-seeking
families; the rest will not be eligible for support
under IAA 1999 s95 or s95A. Their only
option will be to seek local authority support.
So while the amendments are tortuous, the
practical effect is clear: a proportion of failed
asylum-seeking families that would previously
have been supported by the Home Office will
now become the responsibility of their local
authorities.
During the consultation process that
preceded the IA 2016, local authorities
expressed real concern about this burdenshifting. The government’s response was to
add para 10A to the 2016 Act, which had not
been in the bill as originally drafted. However,
unless additional funding is provided to local
authorities to implement the new para 10A
regime (and I am not aware of any suggestion
that it will be), it is difficult to see how this will
address the concern. The financial pressure on
local authorities will rise, meaning the impetus
to refuse support where possible will increase
alongside it. This pressure will be compounded
13
The financial pressure
on local authorities
will rise, meaning the
impetus to refuse
support where
possible will increase
alongside it.
by the right to rent restrictions, which make it
much harder for those without immigration
status to access accommodation in the private
sector, forcing them to turn to social services.
This leads to the second point, which is
that, as a result of these changes, it is entirely
possible that we will see more decisions being
made by local authorities along the lines of
that in R (MN and KN) v Hackney LBC [2013]
EWHC 1205 (Admin), whereby they refuse to
believe a family is destitute. These cases will be
made more difficult by a further set of changes
contained in the Immigration Acts of 2014
and 2016, namely the restrictions on having
or operating a bank account contained in IA
2014 ss40–43 and IA 2016 Sch 7. Those affected
will not be able to produce bank statements
to verify their accounts, while those who have
helped support them may be unwilling to be
named lest they be accused of being complicit
in illegal activity of some sort. These are
precisely the types of factors that might tempt
a decision-maker to reach an adverse decision
on an applicant’s credibility.
The third point, which will be apparent
from the foregoing, is that the new para 10A
regime will do nothing to simplify the task
of local authorities charged with assisting
destitute migrant families; quite the opposite,
in fact. The fact that para 10A support is to be
provided, where necessary, alongside support
under CA 1989 s17, coupled with the fact that
we are dealing with an entirely new regime, the
provisions of which are far from simple and the
detail of which will be spelt out in secondary
legislation, can only make the task more
complicated. And, as is the case now, it will
be the destitute families stuck in the middle
that will miss out while these complexities are
resolved. m
Connor Johnston is a barrister at Garden Court Chambers
specialising in housing, homelessness and community care.
This is the second of a two-part article on housing provisions
in the IA 2016, the first of which, by Adrian Berry, appeared
in the October 2016 issue of Legal Action.
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