Withdrawal of UK Visas and Immigration Support for Asylum Seekers with Families
SCOPE OF THIS CHAPTER
This chapter summarises the process used by the Home Office when moving towards the withdrawal of support from Asylum Seeking Adults with dependent children.
There are significant changes in the law coming into effect in 2013. The Coram Children's Legal Centre site may assist.
AMENDMENTA link to the Coram Children's Legal Centre (above) was added to this chapter in March 2013.
1. The Five Stage Process
The following 5 stage process of withdrawing support from asylum seekers with families should be read in conjunction with the Families with No Recourse to Public Funds Procedure.
2. Stage 1
A first letter will be sent to the family (by the Home Office) as soon as the asylum claim has been finally determined (i.e. when either appeal rights have been exhausted or a final appeal has been determined).
The letter will:
- Inform the family that it must leave the UK and warns that if it fails to "take reasonable steps to leave the UK voluntarily or to place itself in apposition on which it is able to leave the UK voluntarily" that UK Visas and Immigration (UKVI) support (that they are currently in receipt of) will be withdrawn;
- Provide information about:
- The international Organisation for Migration's (IOM) voluntary assisted return and reintegration programme (VARRP); and
- The possibility of receiving help from the Immigration Service Documentation Unit, (ISDU (for assistance in obtaining travel documents);
- Inform the family about the offence under s35 of the Act of failing to co-operate without reasonable excuse, with steps taken by the Secretary of State to assist with their re-documentation to facilitate removal.
Adult family members will be expected to report on a weekly basis to Local Enforcement Officers (LEO) or Police station. The cost of travel to the reporting centre will have to be met by the family and will not be reimbursed.
If at the weekly reporting sessions, the Immigration Service is satisfied that the family is co-operating with the removal process, support will continue and stage two will not be triggered. If it is established that the family cannot return at the moment, the family must co-operate and show that it is taking reasonable steps to place itself in a position to be able to leave. If at any time, in the opinion of the Immigration Officer (IO), the family stops co-operating, stage two will be triggered.
Co-operation with the Removal Process: "Reasonable steps"
The guidance on s9 issued by the Home Office provides guidelines on what may constitute "reasonable steps" (the list is not exhaustive):
- "Requesting UK Visas and Immigration (UKVI) to approach the authorities of their own country or any other country where they be admissible to obtain travel documents on their behalf";
- "Providing correct and complete information to UKVI and/or relevant Embassy or High Commission to enable UKVI or the Embassy or High Commission to obtain travel documentation on the family's behalf";
- "Attending appointments/interviews with UKVI and/or the relevant Embassy or High Commission to obtain travel documentation or otherwise to pursue departure from the UK";
- "Approaching the authorities of their own country, or any other country where they will be admissible, to obtain travel documents i.e. with no assistance from UKVI";
- "Applying for voluntary return";
- "Purchasing one way tickets for the family or requesting IS to obtain these at public expense".
Where the family is not relying on the assistance of ISDU (i.e. UKVI) to obtain travel documents it must provide evidence that it has approached an embassy. This can be done by providing a copy of a letter the family has sent to the embassy and/or by giving details of a person at the embassy who can confirm that the family has made contact with it. Similarly, where the family has applied to the IOM for the voluntary return programme it should provide documentary evidence of this (the guidance does however state that IOM routinely informs the IS about the applications they receive).
In addition the Home Office will also take the following steps at this stage:
- The local authority (LA) will be informed that a family in its area may have its support terminated in the future (the reason for informing the LA is to alert them that the family may approach them for other UKVIs of support normally available from the authority. The LA will not be entitled to provide support once certification has taken place with the exception of support to the minor dependants of the family under s20 of the Children Act 1989);
- If the family's legal representative is known to the Immigration Service the letter will be copied to them as well.
3. Stage 2
Where the family has been deemed to be un-cooperative, a second letter will be issued (by the Home Office).
The second letter is sent a minimum of three weeks after the first letter.
The letter gives one week's notice of an interview. The appointment will take place at the LEO or the family's accommodation centre at the discretion of the LEO.
It will reiterate the information on voluntary returns and the warning about the s35 offence.
4. Stage 3
The interview will take place one week after the second letter is sent.
The interviewee will be asked to sign a declaration at the beginning of the interview stating that they understand the process.
The interview will be conducted by an IO. An interpreter will be present and the family's legal representative will also be able to attend. The interview is recorded in writing by the interviewing officer and the interviewee will be given a copy (in English) at the end.
The interview will focus on what steps the family has taken to leave the UK and they will be asked to provide reasons for their failure to co-operate.
The IO will reiterate the consequences of this failure in relation to withdrawal and the warning about the s35 offence.
Information on assisted voluntary return will again be provided.
The family will be asked to give information including the numbers and ages of children or elderly family members and whether any family members are suffering ill-health. The purpose is to establish whether in light of the possibility of withdrawal of support, a breach of article 3 and/or article 8 of the European Convention of Human Rights (ECHR) might take place. The IO will also assess whether there are any other support networks that the family can turn to should their support be withdrawn.
Failure to Attend the Interview or Co-operate with Removal
Where the family fails to attend the interview without a "reasonable excuse" or following the interview is deemed to have failed to take steps to leave the UK voluntarily or to place themselves in a position in which they are able to do so without a "reasonable excuse", a third letter will be issued and the certification process will start.
The letter will be copied to the LA.
Families will be given 7 days following the deemed receipt of the third letter to explain either why they are failing to co-operate with removal, or why they failed to attend the interview and to provide evidence that they are now co-operating.
Where a family attends the interview they can be given up to 14 days to provide further explanations or supporting documents to prove they are co-operating.
If subsequent to the third letter, the family begins to co-operate, support will continue until they leave and no certificate will be issued.
If after the 7 day period (or 14 days if appropriate) no satisfactory information has been provided to change the IO's decision to issue a certificate, the IO will certify that the family has failed, without reasonable excuse, to take reasonable steps to either leave the UK voluntarily or to place themselves in a position in which they are able to do so. The certificate will not be sent to the family at this stage until an assessment has been completed as to whether continuation of support is necessary to avoid a breach of the family's rights under ECHR.
5. Stage 4
The file is passed to UK Visas and Immigration (UKVI) Support 7 days after receipt of third letter (unless 14 days have been granted to provide supporting information). If the family contact the IS at this stage and the IS is satisfied that the family is now co-operating, UKVI Support will be notified and the certificate will not be sent.
UKVI's decision to withdraw support will be based on whether there would consequently be a breach of article 3 and/or article 8 ECHR. UKVI may however decide to make further enquiries with the family in order to obtain more information and this could include another interview.
A letter will then be sent to the family:
- If there is no breach of ECHR, the letter will contain a certificate stating support will be terminated after a 14 day period from the receipt of the certificate and inform the family that there is a right of appeal to the Asylum Support Adjudicator (ASA); or
- If there is a breach of ECHR, the letter will explain that support will continue but that it will be subject to periodic reviews by UKVI.
A copy of the letter with the certificate will also be sent to the LA and family's legal representative when known to UK Visas and Immigration (UKVI).
Once the certificate has been issued, the only grounds on which support can be reinstated or continued is a breach of persons' rights under ECHR, this will be the case even if the family starts to co-operate with their removal.
Where the family is receiving support from the LA under the interim provisions there is no right of appeal to the ASA. UKVI will issue the certificate as above but the LA will have to decide whether to provide support notwithstanding the certificate, if this is necessary in order to avoid a breach of a person's rights under the ECHR.
6. Stage 5
Support will end 14 days after receipt of the certificate.
The family can appeal to the Asylum Support Adjudicator (ASA) but support will be terminated after the 14 day period even if the appeal has not been heard.
If the appeal is allowed support will be reinstated until the family's departure from the UK.
LAs that are approached for support by families must make their own decision as to whether not providing support would breach the family's rights under the ECHR:
- Where the LA considers that there may be a breach of ECHR, it must provide support to the whole family;
- Where the LA considers that the family's rights under the ECHR will not be breached, it can only provide support to the dependent minors of the family under s20 of the Children Act 1989. It could however be argued that this is in conflict with the 'best interest' principle.
The guidance to section 9 provides guidelines on the application of article 8 (right to respect for private and family life) and article 3 (right to protection from torture and inhuman or degrading treatment) ECHR:
- Article 8. According to the guidance, article 8 is unlikely to be breached by separating children from their families as this interference can, in certain circumstances, be justified. The guidance further states that article 8 is unlikely to be engaged where the families are free to return home and are genuinely able to do so;
- Article 3. According to the Limbuela Judgement it is enough to prove that if support were to be withdrawn, there would be no other means for a person to obtain accommodation and support from governmental, charitable or community sources or his or her own legal endeavours. Following this case law it seems that LAs will have to provide support not only to the children but also to the parents where they will be rendered destitute by the withdrawal of UK Visas and Immigration (UKVI) support and the family is unable to obtain support.