Analysis: Government defies protests in bid to uphold section 55 of Asylum Act

The government’s challenge last week to July’s high court ruling
that new immigration rules could be in breach of human rights
legislation has been used by campaigners as a platform to reiterate
their concerns over the issue, writes Clare
Jerrom.

Section 55 of the Nationality, Immigration and Asylum Act 2002 rang
alarm bells even before its introduction in January. But while the
Home Office seems more determined than ever to stand firm over the
legislation, refugee and human rights organisations are protesting
that the changes have left asylum seekers destitute and sleeping
rough.

Alex Gask, solicitor at human rights organisation Liberty, said:
“The basic human rights viewpoint is that section 55 has been used
to deny people who are not allowed to work or claim benefits any
support from the state. This has left people, many of whom are
genuine asylum seekers, destitute and without food and
shelter.”

Beset with problems

Under section 55, asylum seekers are not entitled to support
from the National Asylum Support Service unless they claim asylum
“as soon as reasonably practicable” when they arrive. But these new
rules have been beset with problems, objections and court
challenges from the outset.

The Refugee Council’s deputy chief executive Margaret Lally
immediately warned that the rules “could result in thousands of
vulnerable people being left homeless and hungry across the
continent”.

The first case followed in February, when six asylum seekers won
their legal challenge and Mr Justice Collins ruled that the law, as
it was being applied in their cases, breached the European
Convention on Human Rights.

He said “insufficient consideration” had been given to the issue
and called for the decisions on their cases to be “quashed and
reconsidered”.

The Home Office confirmed last week that it had tightened its
procedures in line with the judgements. The Immigration Service now
carries out more in-depth interviews as to why people come to the
UK, and the person who conducts the interview is now always the
same person who makes the decision about whether the asylum seeker
should receive support.

Every decision is reviewed by a senior immigration officer before
it is confirmed in writing “to ensure consistency and quality”, a
Home Office spokesperson added.

Around 2,000 asylum seekers placed in emergency accommodation by
the Home Office while it revised these procedures are now being
called up to Platinum House in Croydon, south London, for their
section 55 interview.

But charities are concerned by the decisions that have been made so
far. A Refugee Action spokesperson explains that out of the 400
asylum seekers they had placed in emergency accommodation, 90 had
been interviewed, but just 12 had been granted Nass support.

The government is challenging Mr Justice Kay’s ruling in July that
the human rights of three asylum seekers had been breached after
they were forced to sleep rough having been denied Nass
support.

The home secretary argued that it was not a breach of asylum
seekers’ human rights to sleep rough. But the judge rejected this
argument and ruled that inhuman and degrading treatment under
article 3 of the European Convention on Human Rights could include
“sleeping rough, begging for food or money with which to buy it and
the fear, humiliation and physical and mental suffering which soon
ensues”.

However, Kay said this did not mean everyone refused asylum support
would be able to rely on article 3, as some asylum seekers might
have access to private or charitable funds or be more resilient and
resourceful.

Home Office minister Beverley Hughes welcomed this acknowledgement,
but said she was “concerned” that article 3 was found to have been
breached in the three cases and confirmed the Home Office would
appeal.

In the end, the Home Office abandoned appeals in connection with
two of the cases. The remaining appeal was heard last week and a
judgement is expected shortly.

As the full effect of section 55 becomes clearer, campaigners’
concerns about its impact are growing despite assurances from
Hughes in answer to a parliamentary question in December that
“there is no reason to suppose that the coming into force of
section 55 of the Nationality Immigration and Asylum Act 2002 will
result in an increase in the number of rough sleepers”.

Draconian policy

Last month, the Refugee Council was forced to refuse
accommodation to more than 30 asylum seekers who the government
claimed had failed to comply with section 55.

As a result, the group – many of whom deny applying for asylum
too late – camped on the streets of Brixton, south London, and
demonstrated outside the appeal court last week when the government
launched its challenge. Lally says it is a “shocking example of the
government’s harsh and draconian policy towards asylum
seekers”.

A joint statement from refugee, homelessness and human rights’
organisations issued in July points out that, while some charities
can offer basic items such as blankets and provide advice, “the
help we can offer is limited and wholly inadequate.

“The government seems to assume that charitable or voluntary
organisations will be able to provide food, accommodation and
essential items to those made destitute,” it states. “However, we
do not know of agencies in a position to provide such comprehensive
support.”

A spokesperson for homelessness charity Shelter explains that there
is very little it can do as it cannot refer asylum seekers to a
hostel or night shelter as most make a charge for a bed. While
British citizens can cover the cost by claiming housing benefit,
asylum seekers are prevented from claiming benefits or working to
earn money to pay for accommodation.

Local authorities are also restricted. They are only required,
under the National Assistance Act 1948, to support asylum seekers
with special needs “who are in need of care and attention for
reasons other than destitution”. All other asylum seekers entering
the country – providing they apply “as soon as reasonably
practicable” – are supposed to apply to Nass for their
support.

But Alice Webb, case worker at Asylum Aid, echoes Kay’s observation
that living on the streets can lead to physical and mental
suffering – which could see an asylum seeker denied Nass support
under section 55 qualifying for social services support. “If an
asylum seeker is on the streets, their health is likely to suffer
and mental health problems such as depression could ensue. At that
point, they could make an application to social services.”

However, Webb warns that, due to restrictions on resources, it can
often be difficult for people to access this support, particularly
in London.

Peter Gilroy, director of social services in Kent and the
Association of Directors of Social Services spokesperson on asylum,
says section 55 will lead to a rise in asylum seekers who failed to
apply as soon as they arrived ending up at the social services
department’s door pleading special needs. He warns that this will
lead to further judicial challenges as councils, unable to cope
with demand, are forced to refuse support.

Gilroy is also concerned that section 55 could lead to an increase
in the number of adults bringing children into the country and
masquerading as their parents – as Marie-Therese Kouao did with
Victoria Climbie – as families are exempt from the section.

By forcing asylum seekers onto the streets, section 55 will
increase homelessness and increase asylum seekers’ chances of
committing or being the victim of crime, he warns.

In doing so, section 55 undermines other government initiatives
tackling rough sleepers, promoting social cohesion and reducing
exclusion, campaigners claim. “Section 55 is punishing people
pursuing their legitimate claim to asylum,” their statement
concludes. “We call on the government to stop this measure, which
threatens to put some of the most vulnerable people in society on
the streets of Britain.”

More information on Community Care’s campaign for a fairer deal for
asylum seekers.