No recourse

Wai Ping* applied for asylum in Britain and was refused. Despite
being pregnant she lost all her rights to housing and benefits, and
as she is also banned from working, she was made destitute. Her
baby was born in Lewisham hospital, but she was found to be living
in such squalid conditions that social services refused to allow
her to be discharged from hospital with her child. The newborn baby
was placed with a foster carer and only saw the mother for a couple
of hours a day with the social worker and foster mother present.
Community midwife June Walker says: “It was very upsetting for the
mother because she could not speak English. I feel that if she had
had more rights and access to an interpreter she could speak up for
herself and would possibly have been housed with her baby.”

Wai Ping and her baby are casualties of the government’s “get
tough” asylum policy. New rules are being piloted in the North West
and London which mean that if the Home Office believes failed
asylum seekers are not preparing to leave the country, all
financial support and accommodation provided by the National Asylum
Support Service is withdrawn and they will not be able to access
welfare benefits.

The measure, which previously affected only single adults, has
now been extended to families with children under section 9 of the
Asylum and Immigration Act 2004. Campaigners say the draconian
policy threatens families with destitution and they want the rules
changed.

A spokeswoman for the Association of Directors of Social
Services says the Home Office decided to pilot the proposal in
local authorities in the North West and several London boroughs
before rolling it out nationally because they realise it is “such
contentious legislation”.

She says that social services are obliged “to make an assessment
of these children’s needs to make sure they are being met” and that
taking children into care “could be something that does happen” but
only as a last resort.

However, midwives in south London claim that there have been
instances where young women as young as 16 have had their babies
put into foster care because they are not allowed to claim housing
and other welfare benefits (see case study “Nowhere to go”).

While the no recourse to public funds rule applies to asylum
seekers who have been – to use the jargon – “disbenefited”, it also
affects people coming to the UK to study or join a British partner
or be sponsored.

Women’s Aid has been campaigning on behalf of women whose
partners are abusive, and who can be left facing the agonising
choice of staying in a violent relationship or leaving to face
destitution and the possible loss of their children. The number of
women supported by Women’s Aid refuges who had no recourse to
public funds rose sharply from 301 in 2002-3 to 368 last year.

A coalition of women’s organisations, including Women’s Aid and
the Southall Black Sisters, tried unsuccessfully recently to get an
exemption from the no recourse to public funds rule for victims of
domestic violence included in the Domestic Violence, Crime and
Victims Bill. The government has contributed £80,000 towards
Women’s Aid’s Last Resort Fund, but women’s refuges can only apply
to the fund for eight weeks of financial support towards a woman’s
living costs or rent.

If women are rendered destitute through domestic violence they
are likely to lose care of their children. Hilary Saunders,
Children’s Policy Officer at Women’s Aid, warns that “under current
immigration rules, if a woman flees from a violent partner when she
does not have secure immigration status, the family courts are
likely to grant residence of the child to the perpetrator, because
he is the only parent with secure accommodation”.

While the campaign on their behalf has been going on for some
time, concern over the plight of newborn babies being removed from
their mothers prompted representatives from several organisations
including the Maternity Alliance, Sure Start Plus and Connexions to
meet at the Government Office for London in March to open up a new
front in the battle for changes to the no recourse to public funds
rule. They are gathering examples and preparing a report making a
case for a change in the law and to bolster their argument that
these measures are in breach of human rights conventions. Jenny
McLeish, social policy officer at the Maternity Alliance, says: “It
isn’t an issue of looking for good practice and spreading it. It’s
actually a question of changing the law because it is impossible to
work with what exists at the moment.”

However, Frances Potter, of Sheffield Citizen’s Advice Bureau,
who regularly advises people without recourse to public funds, says
there are powers under section 17 of the Children Act 1989 to
provide support and accommodation as an alternative to taking
children into care. She says social workers often fail to explore
these powers, believing wrongly that they would be infringing the
no recourse to public funds rule.

Frances Potter aims to help asylum seekers by linking them with
support from voluntary agencies and getting specialist legal advice
about their immigration status. Charities such as the
Sheffield-based Assist (Asylum Seekers Support Initiative – Short
Term) are working to provide some support to destitute asylum
seekers.
Ella Jess-Reid, of Lewisham Sure Start Plus, says that while social
services are obliged to help the baby, the mother, who may
effectively be a child herself, is denied assistance.

“We are quite clear that these young people are children in
need,” she says. While pressure is put on social services to help,
Sure Start Plus often ends up approaching the voluntary sector for
assistance or buying the new mother baby clothing.

Jenny McLeish says the immigration service regards these young
mothers not as children who have just given birth, but coldly as
people without recourse to public funds. She says: “Their
immigration status supersedes their needs as a child. But we must
face the reality that that baby is going to be harmed by that
teenager’s destitution and you are then going to spend lots of
public money picking up the pieces so it doesn’t make any economic
sense to deny these people services and access to benefits.”

* Not her real name

Where’s the law?

In line with the principle that the child’s best interests takes
precedence, it would be normal practice for a local authority to
arrange to accommodate and support a family with no other means
under section 17 of the 1989 Children Act. Section 9 of the 2004
Asylum and Immigration Act prevents local authorities from using
this power to support “ineligible persons” – ie failed asylum
seekers – but there is an exception. They may provide support if it
is necessary to stop someone’s human rights being breached. The
Children’s Legal Centre says this means local authorities should
assess whether the family can obtain accommodation and support from
other sources. If not the local authority can, but doesn’t have to,
use section 17 to avoid splitting the family.

Nowhere to go:

 A  17-year-old girl from Jamaica who had just given birth was
referred to Shirley Campbell, lead specialist midwife for young
women in Lewisham. The girl had told the hospital that she had
nowhere to go, her partner promised but then withdrew an offer to
help, and her wider family refused to assist her. She had also
failed to produce her passport or evidence of her immigration
status. When she did find somewhere to live, social services
inspected the accommodation and decided it was unsuitable for a
baby because it was very cold and not properly furnished. The baby
was then removed into foster care. Shirley says: “It was a last
resort and I was obviously quite upset by that. It was a real jolt
for me when this girl had her young baby taken away. I believe the
system should be changed.”

Mother Starving

A woman left her violent husband but he stopped her taking their
child.  Due to her immigration status the woman has no recourse to
public funds, but with the help of a domestic violence outreach
service she managed to obtain accommodation.  The court granted
residence to the father, and unsupervised contact to the mother. 
The mother says that this was because she was labelled “unsettled”
– the man’s violent behaviour was not mentioned in court.

The child wants to stay with her mother and is very distressed. 
The mother now has no means to support herself financially.  Her
husband has stopped her contact with the child, she has been
refused legal aid and she is at risk of starving.

From Women’s Aid Source: Failure to Protect? Violence
and the Experience of Abused Women and Children in the Family
Courts.