Guidance Sheet 7
HUMAN RIGHTS ASSESSMENTS
Section 54 and Schedule 3 of the Nationality Immigration and Asylum Act 2002 prohibits the local authorities from providing financial support under:
-Sect 21 National Assistance Act 1948
-Sec 45 Health Services and Public Heath Act 1968
-Section 17, 23C, 24A and 24B Children Act 1989
-Section 2 Local Government Act 2000
The purpose of a Human Rights Assessment is to determine whether an existing power or duty must be exercised by the local authority, in spite of the limitations of Section 54, in order to preserve human rights. This includes Convention rights and Community Treaty rights
A human rights assessment is therefore only necessary of the person falls into one of the groups covered by Section 54 and Schedule 3
- a person with refugee status in another EEA state and their dependants
- a citizen of another EEA state and their dependant
- a failed asylum seeker who has not co-operated with removal directions
- a person unlawfully in the UK
The focus of a Human Rights Assessment will generally be Articles 3 and 8
Article 3
This is an absolute and unqualified right that ‘no one shall be subject to torture or to in human or degrading treatment or punishment.’
If the client claims that his/her Article 3 rights would be breached by a return to their country of origin then they should be advised to seek legal advice regarding an application to the Home Office for leave to remain under Article 3 grounds. If accepted this will be deemed to be an asylum application and the client should be eligible for NASS support.
If they have previously applied for asylum and been refused then it can be considered that the Home Office have already considered Article 3 and concluded that there will be no breach. Although the local authority can consider this as part of their evidence, it is also necessary to take account of any new information.
Information about the situation in specific countries can be obtained from the IND website.
If the client cites medical grounds as the cause for an Article 3 claim then they would need to be in a ‘critical’ state of health rather than just suffering from an ongoing condition. Legal advice should be sought.
Article 8
This is a qualified right which means that interference with this right is acceptable if the interference is proportionate and necessary – eg in the interests of maintaining a sustainable immigration policy
This article refers to the right to private and family life
-What was the purpose in coming to the UK?
-Does the client have family in the UK?
-What is the nature of their relationship with these family members?
-How often do they see them?
-How long have they known them?
-Could they sustain there relationships from abroad eg by visits, letters?
-Are their family members in the home country?
-What would be their social circumstances on return?
This article also encompasses the client’s physical and psychological integrity. The concept of private life can be very broad including personal identity, sexual orientation, personal development and psychological well being. The threshold for establishing such is high and the onus should be on the client to produce expert opinion.
Being married to a UK citizen does not automatically mean that there will be a breach of Human Rights. Article 8 does not require the local authority to respect the choice of residence of a married couple. Removal of one family member would not be a breach if there were no insurmountable reason why the other partner could not follow even if this involved a degree of hardship. Knowledge on the part of one spouse of the precarious immigration state of the other at the time of marriage/partnership is relevant and would suggest no infringement of Article 8.
Human Rights Assessments need to be thorough and considered as there is potential for them to be challenged via the courts.
The following template should be used and once the assessment is completed it is advisable to seek legal advice regarding the outcome.
Carolyn Greenaway
Version 1.1 Jan 09