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.
The Immigration Act 2016 places significant restrictions on the ability of certain migrant families to access accommodation and support under Children Act 1989 s17.
The 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
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 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.
Paragraph 10A support
To be eligible for para 10A support an individual must (per para 10A(1)):
•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 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.
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 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.
The financial pressure on local authorities will rise, meaning the impetus to refuse support where possible will increase alongside it.
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  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. ■