The government’s plans to withdraw support from failed asylum
seekers and take their children into care has been dealt a blow in
a court ruling for local authorities.
Earlier this month Court of Appeal judges ruled that local
authorities must consider failed asylum seekers’ human rights
before splitting up families and denying them support.
One of the most controversial proposals in the Asylum and
Immigration (treatment of claimants etc) Bill is for local
authorities to be given powers to take children of failed asylum
seekers into care if they refuse to leave the country voluntarily.
But the ruling could pave the way for a flood of challenges if the
measures come into force.
The Appeal Court case involved a woman from Guyana who, although
unlawfully in the UK herself, has a three-year-old daughter with
British citizenship rights.
Rather than accept a duty to house her, Islington Council offered
her a ticket back to Guyana and warned her that if she didn’t
accept it the child could be taken into care.
The mother came to Britain on a visitor’s permit in 1998 but later
married an Antiguan man with indefinite permission to remain in the
UK. The relationship broke down but their daughter is a British
Lord Justice Buxton said that, in his view, the power of local
authorities to offer failed asylum seekers, tickets home was
“severely circumscribed by the rights of various parties under the
European Convention on Human Rights”.
Article 8 of the Convention states that everyone has the right to
respect for his or her private and family life.
Lord Justice Waller said that although the council had a statutory
power rather than a duty to house the mother, in real terms – due
to its obligations under the ECHR – this may leave it with “little
choice” but to offer accommodation.
Nathaniel Matthews, a solicitor at Hackney Community Law Centre,
said the case established that councils must consider Article 8
“before blithely splitting up families”.
He predicted that the new proposals would lead to lawyers arguing
the policy breached Article 8 and Article 3: the right not to be
subjected to inhuman or degrading treatment.