UASC – LEAVING CARE - LEGISLATION OPTIONS PAPER

Background

Local authority responsibilities to all children, including UASC, do not necessarily stop when the individuals turn 18. The individuals may have an entitlement to leaving care support. Eligibility to that assistance depends on the following factors:

  1. The person has been supported (pre-18) for at least 13 weeks under section 20 of the Children Act (similar provision in Scotland); and
  1. The person is not “ineligible” to receive support by virtue of Schedule 3 of the Nationality, Immigration and Asylum Act 2002. Who is and who is not “ineligible” can be complex but subject to a minor exception (affecting a very small number of individuals who applied for asylum at the port of arrival and at no time received a grant of leave to enter the UK) the person will become ineligible to receive support if all immigration applications and appeals have been rejected and has no further lawful basis of stay in the UK (referred to as “ARE” cases hereafter).

But the following factors need to be noted alongside the eligibility criteria:

  • Being an “ineligible” case by virtue of Schedule 3 does not prevent the person being supported to the extent necessary to avoid a breach of his/her human rights.
  • In practice, this means that a local authority is required to assess whether leaving care support should continue in order to avoid a breach of the person’s human rights at the point he/she becomes ARE.
  • There is some statutory guidance available to local authorities on how they should interpret duties arising from these matters (enclosed) but this does not go into the detail of how the human rights test should be assessed.
  • The nearest analogy to the test that needs to be applied may be found through the procedures applied by UKBA when assessing support applications from other failed asylum seekers under section 4 of the Immigration and Asylum Act 1999 - where, in very general terms, the person may establish a need to be supported for human rights reasons. This will usually because he/she will otherwise be left destitute in circumstances that would cause inhuman or degrading treatment contrary to Article 3 of the European Convention on Human Rights. Note, however, that most failed asylum seekers can avoid falling into destitution in that way by leaving the UK (regardless whether UKBA can force them to), so the human rights test would only be met if there was a real “obstacle” to leaving the UK (eg because the person was too sick to travel or needed time to obtain the necessary travel documents etc).

Why does this cause problems to local authorities in respect of post -18 UASC?

The main reasons appear to be:

  • Uncertainty about how to apply the human rights test. Many local authorities feel that an assessment about the merits of any “obstacle” put forward as a reason why the person cannot leave the UK usually involves matters best left to the judgement of immigration officials (e.g. how quickly the person can obtain travel documents).
  • Fear of costly legal challenge if support is stopped.
  • Worries about local resistance and “community cohesion” concerns about adding to pools of people from abroad with no access to assistance or ability to work.
  • A “positive” human rights assessment does not currently make the person eligible to funding under the terms of the UKBA Leaving Care Grant.
  • Even though an ARE person who does not satisfy the human rights test may not receive “support” under leaving care legislation (ie housing, subsistence etc), he/she must still have a personal advisor and pathway plan. Although duties in this respect might be light (it is hard to see what practical advice could be given other than to return home) this adds further complexity to the overall position.

Main UKBA concerns

These are:

  • UKBA is anxious to ensure that local authorities interpret their duties and carry out human rights assessments in a consistent way. Even with enhanced statutory guidance it is questionable whether that objective can be fully achieved given the complex factors listed above.
  • Although sympathetic to many of the concerns of local authorities UKBA cannot simply extend funding so as to mean that local authorities are reimbursed for supporting individuals contrary to the law.

Possible Solution

One option to these difficulties is to legislate so as to transfer the responsibility for providing any support for AREindividuals from local authorities to UKBA. This option had been floated in the original “Planning Better Outcomes” consultation paper – which had suggested that the individuals could be made eligible to apply for support under Section 4 of the Immigration and Asylum Act 1999 or some other specially created provision.

The advantages of this approach might be:

  • It delivers on the policy objective of ensuring that decisions are made to consistent standards.
  • It “insulates” local authorities from some of the negative factors associated with unpopular decisions to stop support listed above. It will be the UKBA that has responsibility for dealing with legal challenges and the issues surrounding community cohesion.
  • Deals with many of the funding problems that create a disincentive to local authorities interested in becoming “specialists” in the reformed pre-18 support system.

Main Issues For Discussion

  • Does this paper accurately describe the main strategic problems in respect of handling these ARE cases?
  • Is the proposed solution acceptable?
  • If so, should the individuals simply be considered for section 4 support like other failed asylum seekers or are there any reasons why a different support scheme, albeit one still administered by UKBA, is more appropriate to their needs?
  • Is there a “halfway- house” solution – e.g. person is supported by UKBA, if he/she passes the human right test, but allowed to remain in accommodation to date provided by the local authority in order to provide some continuity of support.
  • Discussion of next steps to deliver any changes.