Local authorities responsibilty to asylum seekers. The question that needs to be considered is whether, the treatment of Mr Ashrif crossed the line between destitute defined in section 95(3) and the condition that was so severe that would properly be desc

Public Law Assessment

The local authority has statutory responsibility to offer assistance to asylum seekers under s.21 National Assistance Act 1948 and s.55 of the Nationality Immigration and Asylum act 2002. “They have a duty to provide accommodation and benefits whilst they await the outcome of their come with the home office.” An asylum seeker is defined as Art. 2(a) defines 'asylum seeker' as a person who “has made a claim for asylum which has been recorded by the secretary of State but has not been determined”; this is currently the status of Mr Ashrif. With the limited fact of Mohammed Ashrif I would apply all legislation that might affect him.

The legal basis for providing support to asylum seekers is under section 55 of the Nationality, Immigration and Asylum Act of 2002, it provides that asylum support under section 4, 95 and 98 of Immigration and Asylum Act 1999 can be refused if the Secretary of State is not satisfied that the asylum was made as soon as ‘reasonably practicable’ after the person’s arrival in the UK. In this case the applicant Mr Ashrif submitted his asylum claim two weeks after entering into the UK. The prospective asylum seeker should apply immediately on arrival but that policy has been refined, it is accepted that those who did not claim asylum within three days and had no opportunity to claim asylum within that time would be treated as having claimed as soon as reasonably practicable. However it would not be up to the council to decide whether it was ‘reasonably practical’ for Mr Ashrif to claim asylum after two weeks and it would be up to him to take the Secretary of State’s decision to court. Section 55 does not prevent support being provided to those with dependable children or with certain care needs in this case Mr Ashrif has not notified the council of any dependable child.

In this light, it appears that Mohammed has no support under this 2002 Act. On the other hand the continued use of section 55 of the provision leaves the claimant reliant on ad hoc charitable support and with no means of providing for their basic daily necessities. This treatment does not comply with the House of Lords R and Limbeula judgement and is a clear breach of Article 3 of the European convention of human rights. Article 3 which is relied on in this case states that, “No one shall be subjected to torture or degrading punishment”. Therefore, provisions which provided degrading and inhuman conditions (treatments) for asylum seekers which consequently made them destitute indicates that the Secretary of State were directly responsible. Under this case, it was held that it was not necessary for each claimant to show the actual onset of severe illness or suffering. If the evidence clearly established that support was not available, the presumption was that severe suffering would imminently follow, and the claimant had done enough to show that he was verging on the necessary degree of severity to engage Article 3. The court held that it has to verge on severity described in R and Pretty.

The question that needs to be considered is whether, the treatment of Mr Ashrif crossed the line between destitute defined in section 95(3) and the condition that was so severe that would properly be describe as inhuman and degrading treatment within the meaning of Article 3. Factors that would need to be assessed in considering this question was whether the asylum seeker was a female or male, in poor health, if he or she has exhausted all other resources that might be available and the time likely to be spent without the essential means of support. It is worth noting that in the O’rouke it was held that those who have refused resources would not attain the ‘requisite level of severity’. In this case, there is sufficient evidence in favour of Mr Ashrif that provisions that he was subjected to would lead to a condition that was in humane or degrading. In the leading judgement of Limbuela, Lord Bingham said: “A general public duty to house the homeless or provide for the destitute cannot be spelled out of Article 3. But I have no doubt that the threshold may be crossed if a late applicant with no means and no alternative sources of support, unable to support himself, is, by the deliberate action of the state, denied shelter, food or most basic necessities of life...”.Therefore if Mr Ashrif can show that he took reasonable steps to access support he would receive support. This approach assumes that destitution will occur this principle is applied in Tessema.

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The alternative test that can be applied to Mohammed situation is the ‘wait and see’ approach commended by Zardhast and Adam. In order to show that Mohammed’s human rights were breached he would have to show that his situation has gone beyond an ‘ordinary asylum seeker’. It is unlikely that he will get any support under this approach as he has to prove that he is currently destitute. However, the judgements given in the Limbuela and the Pretty case have little bearing to the judgement delivered by the European court as it is hard to find a clear basis for it in the language of Article 3. The only explanation in the European Court’s jurisprudence is that Article 3 may require the State to protect against inhuman or degrading punishment. This allows for Judges to interpret the law as they see befitting. With all that said Mr Ashrif has a strong case against the local authority on basis of Article 3.

The local authority has a duty to provide residential accommodation and associated support to an asylum seeker who is in need of care and attention due to old age ill health, disability or other special reason this is found under section 21 of the National Assistance Act 1948. Following the decision in R and Slough a local authority should help “destitute” applicants who are ‘in need of care and attention’ that will be provided in the accommodation they supply. The definition of destitute is found in s.95 of the Immigration and Asylum Act 1999. It should also be noted that in R and Hammersmith the court held that asylum seekers can turn to s.21 (a) of the 1948 for support. In order to determine whether Mr Ashrif can get support he must be able to satisfy three criteria: “the person must be in need of care and attention; (ii) the need must arise by reason of “age, illness, disability or any other circumstances”; and (iii) the care and attention that is needed must not be available otherwise than by the provision of accommodation under s 21(1)” .

In R and slough it was held that the meaning of care and attention was “looking after”, its ‘true grammatical sense’. This means that Mr Ashrif would need someone to do something that is not reasonably expected for him to do himself. The second requirement that whether his need arise by reason “age, illness....” It was held in NAS and Westminster Council that asylum seekers who were in need of care and attention would be provided accommodation if they were in need of care and attention that has arisen ‘solely’ from infirmity as well as destitution. Mr Ashrif may satisfy this criterion as his mental illness (infirmity) does not solely arise from being destitute. The last requirement needs the asylum seekers to show that he/she would not be able to get that care and attention from anywhere else other than in the provision;(Lambeth) This is clearly seen in Mr Ashrif condition as the Afghan community cannot meet his needs. The council needs to bear in mind that the duty of the local authority is not relieved simply because NASS have offered them accommodation.

Nevertheless, it could be argued that Mr Ashrif does not need care and attention as he is capable of looking after himself. Furthermore, Mr Ashrif situation could suggest that his need for care and attention arises solely from destitution as he stayed with the Afghan communities until they threaten him, this may indicate that his need is based on accommodation and not because of his illness. Therefore Mr Ashrif would be eligible for support under the Immigration and Asylum Act, and is therefore not the local authorities’ responsibility. With regard to other legislation, the Housing Act 1996 s.186 does not apply to asylum seeks.

Nevertheless under the Asylum and Immigration Act of 1996 s.11, it excludes in-country asylum seekers from benefits. Therefore Mr Ashrif is not eligible to have support within s.21of the National Assistance Act 1948 and s.55 Immigration and Asylum Act 2002. In conclusion, the only way for Mr Ashrif to receive support is under section 55 as this provision recognises his human rights claims.

Research Method

The first thing that I did was to log on to West Law and type in the search bar “Nationality , Immigration and Asylum Act 2002”(2002 Act) before clicking search I checked the ‘legislation’ box but unchecked all irrelevant boxes for instances boxes like cases, ‘journals’ and ‘current awareness’ . This took me to a large search list, within this search query I searched for “s.55” a section that was specifically mention in the problem question. From this search query I was able to find the relevant act. I read the act and I was able to understand, that an asylum seeker can claim support in-country to the local authority within a “reasonably practicable time” this was found in the legislation, “(b) the Secretary of State is not satisfied that the claim was made as soon as reasonably practicable after the person's arrival in the United Kingdom.”.After this, I click on the ‘legislation analysis’ which is along the side of the provision. Once I’m on ‘legislation analysis’ I scroll down to ‘case citing’ I then click on the Limbuela case which I recognised from the lecturer slides. I read the summary of the case and took note of Pretty and United Kingdom, from this I was able to understand that s.55 2002 Act contravene with Article 3 of the human right act. Additionally, I learnt that the Pretty case was a test to determine whether the asylum seeker was verging on the necessary degree of severity describe in that case. Building on this knowledge I was able to acknowledge the principle of the Limbuela case, which was that the local authority should “avoid” a breach by stepping in when it is likely (on that path) to be a breach as oppose to when the breach occurred.

I start a new search, and I typed “R v Slough” in the search. This had a large number of search enquires so I limit it by clicking on cases. Once I found my case which was listed at number 16 I click on ‘case analysis’ from there I was able to see the principle by the case: the care and attention does not merely mean accommodation but “to be looked after” therefore if judging by Mohammed situation he would need ‘to be looked after’ then he fits the care and attention requirement. I was also able to understand that the slough drew a line between the ‘able’ and the ‘infirm’ bodies which is a key note in this question. Within this case it quotes R v Lambeth I click on the link. From this I was able to understand the principle: The asylum seekers needs to show that he/she would not be able to get that care and attention from anywhere else other than in the provision.

S.94(1) of the Immigration and Asylum Act 1999.

(3) An authority may not provide or arrange for the provision of support to a person under a provision mentioned in subsection (4) if—

(a) the person has made a claim for asylum, and

(b) the Secretary of State is not satisfied that the claim was made as soon as reasonably practicable after the person's arrival in the United Kingdom.

http://www.copfs.gov.uk/Resource/Doc/15023/0000501.pdf

55 Late claim for asylum: refusal of support

(1) The Secretary of State may not provide or arrange for the provision of support to a person under a provision mentioned in subsection (2) if—

(a) the person makes a claim for asylum which is recorded by the Secretary of State, and

(b) the Secretary of State is not satisfied that the claim was made as soon as reasonably practicable after the person's arrival in the United Kingdom.

(2) The provisions are—

(a) sections 4, 95 and 98 of the Immigration and Asylum Act 1999 (c. 33) (support for asylum-seeker, &c.), and

(b) sections 17 and 24 of this Act (accommodation centre).

(3) An authority may not provide or arrange for the provision of support to a person under a provision mentioned in subsection (4) if—

(a) the person has made a claim for asylum, and

(b) the Secretary of State is not satisfied that the claim was made as soon as reasonably practicable after the person's arrival in the United Kingdom.

(4) The provisions are—

(a) section 29(1)(b) of the Housing (Scotland) Act 1987 (c. 26) (accommodation pending review),

(b) section 188(3) or 204(4) of the Housing Act 1996 (c. 52) (accommodation pending review or appeal), and

(5) This section shall not prevent—

(a) the exercise of a power by the Secretary of State to the extent necessary for the purpose of avoiding a breach of a person's Convention rights (within the meaning of the Human Rights Act 1998 (c. 42)),

Article 3 :inhumane treatment “No one shall be subjected to torture or to inhuman or degrading treatment or punishment”

Employers are liable to prosecution if it employs asylum seekers and also asylum seeker are not permitted to work under the immigration rules and asylum and immigration act 1996., and also immigration (restriction on employment) order 1996

Is an Article that can not be derogated from.

“As regards the types of ‘treatment’ which fall within the scope of Article 3 of the Convention, the court's case law refers to ‘ill-treatment’ that attains a minimum level of severity and involves actual bodily injury or intense physical or mental suffering. Where treatment humiliates or debases an individual showing lack of respect for, or diminishing, his or her human dignity or arouses feelings of fear, anguish or inferiority capable of breaking an individual's moral and physical resistance, it may be characterised as degrading and also fall within the prohibition of Article 3. The suffering which flows from naturally occurring illness, physical or mental, may be covered by Article 3, where it is, or risks being, exacerbated by treatment, whether flowing from conditions of detention, expulsion or other measures, for which the authorities can be held responsible.”

O'Rourke v United Kingdom, (App. No.39022/97) (unreported) June 26, 2001

Limbuela) v Secretary of State for the Home Department [2005] UKHL 66,

Determines whether there was a breach of art 3with regard to the Tessema case: “on the basis of what a reasonable person, objectively applying the standards of a civilised society, would find to be acceptable or otherwise upon application of the test described in pretty to the facts of the particulars of the case”

R (Tessma) v. Secretary of State for the Home Department:[2004] EWCA Civ 540

Determines whether there was a breach of article 3 with regard to the Zardhast case: “if despite being homeless..., a claimant can obtain food from charities during the day or of other sources, and has some access to washing and sanitary facilities in the course of the day, it is possible that he could live for an extended period of time under such conditionswithout severe adverse consequences reducing his condition to the pretty level”

R ( Zardasht) v Secretary of State for the Home Department [2004] EWHC 91

R (Adam) v. Secretary of State for the Home Department [2004] EWCA Civ 540

Limbuela) v Secretary of State for the Home Department [2005] UKHL 66,

The judicial response to these case appears ambiguous at tries there is readiness to embrace the evolution of the convention jurisprudence while other uses the traditional approach for these issues;

21 Duty of local authorities to provide accommodation

(1) [Subject to and in accordance with the provisions of this Part of this Act, a local authority may with the approval of the Secretary of State, and to such extent as he may direct shall, make arrangements for providing]—

(a) residential accommodation for persons [aged eighteen or over] who by reason of age, [illness, disability] or any other circumstances are in need of care and attention which is not otherwise available to them; [and

(aa) residential accommodation for expectant and nursing mothers who are in need of care and attention which is not otherwise available to them.]

(b) . . .

[(1A) A person to whom of the Immigration and Asylum Act 1999 (exclusion from benefits) applies may not be provided with residential accommodation under subsection (1)(a) if his need for care and attention has arisen solely—

(a) because he is destitute; or

(b) because of the physical effects, or anticipated physical effects, of his being destitute.

(1B) Subsections (3) and (5) to (8) of of the Immigration and Asylum Act 1999, and paragraph 2 of Schedule 8 to that Act, apply for the purposes of subsection (1A) as they apply for the purposes of that section, but for the references in subsections (5) and (7) of that section and in that paragraph to the Secretary of State substitute references to a local authority.

[(1B) Section 95(2) to (7) of that Act shall apply for the purposes of subsection (1A) above; and for that purpose a reference to the Secretary of State in section 95(4) or (5) shall be treated as a reference to a local authority.]]

95 Persons for whom support may be provided

(1) The Secretary of State may provide, or arrange for the provision of, support for—

(a) asylum-seekers, or

(b) dependants of asylum-seekers,

who appear to the Secretary of State to be destitute or to be likely to become destitute within such period as may be prescribed.

(2) In prescribed circumstances, a person who would otherwise fall within subsection (1) is excluded.

(3) For the purposes of this section, a person is destitute if—

(a) he does not have adequate accommodation or any means of obtaining it (whether or not his other essential living needs are met); or

(b) he has adequate accommodation or the means of obtaining it, but cannot meet his other essential living needs.

It should be noted that the use of “other circumstances?” that it was not parliaments intention to provide a safety net for those who are shot of accommodation therefore the judges interpreted it that way this judiciary approach Is called mischief rule.

R (on the application of M) v Slough BC) , [2008] 1 WLR 1808,

The looking after had to be of such a character as would be required even were the person wealthy, and it was immaterial that it could be provided in his own home if he had one.

Judiciary using the traditional approach in interpreting legislation, in this case the judge use the literal interpretation.

As Bennion state an Act requires interpretation on a construction that continuously updates its wording to allow for changes since the act was initially framed”

The local authority contended that the applied, not to all those who needed care and attention, but solely and exclusively to those who needed care and attention of a kind which was only available to them through the provision of residential accommodation.

It is also common ground that, if Hillingdon lacks the relevant statutory power to accommodate the Claimant, the duty to do so is likely to fall upon central government in the shape of the National Asylum Support Service ("NASS"), which is a division of the Home Office. The statutory underpinning for that is to be found in Part VI of the Immigration and Asylum Act 1999 and in regulations made under section 95(12) and Schedule 8 thereof. As decided by the House of Lords in R (Westminster City Council) v National Asylum Support Service [2002] 1 WLR 2956, [2002] UKHL 38, by reference in particular to Regulation 6(4) of the Asylum Support Regulations 2000, the support which is available from NASS is of a residual nature.” Therefore support for Mr Ashrid will come under NASS.

186 Asylum-seekers and their dependants

(1) An asylum-seeker, or a dependant of an asylum-seeker who is not by virtue of section 185 a person from abroad who is ineligible for housing assistance, is not eligible for assistance under this Part if he has any accommodation in the United Kingdom, however temporary, available for his occupation.

(2) For the purposes of this section a person who makes a claim for asylum—

(a) becomes an asylum-seeker at the time when his claim is recorded by the Secretary of State as having been made, and

(b) ceases to be an asylum-seeker at the time when his claim is recorded by the Secretary of State as having been finally determined or abandoned.

Despite R v Hammersmith apparently opening the doors to asylum seekers this closes it and limits benefits to those who apply at port of entry.

(5) This section shall not prevent—

(a) the exercise of a power by the Secretary of State to the extent necessary for the purpose of avoiding a breach of a person's Convention rights (within the meaning of the ),

Local authorities responsibilty to asylum seekers. The question that needs to be considered is whether, the treatment of Mr Ashrif crossed the line between destitute defined in section 95(3) and the condition that was so severe that would properly be desc

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