The Government's withdrawal of welfare benefits from asylum seekers last year left local authorities with a legal obligation to fill the gap – but with little money to do it. Gifty Edila focuses on the problems which still need to be resolved. Gifty Edila is head of legal services at Newham Council.
The recent influx of asylum seekers into Dover has heightened public awareness of the plight of refugees and the demands they place on local authorities.
In the Borough of Newham, there are refugees from Asia and Africa, and from many parts of Europe, such as Bosnia. Until recently, the main issue facing refugees in the UK was whether or not the Home Office would grant them refugee status. But the previous government's concerns about alleged abuse of the system led to the adoption of more stringent rules for dealing with applications for refugee status and entitlement to housing and welfare benefits.
In particular, since 19 August 1996, when the Asylum and Immigration Act 1996 came into force, asylum seekers who do not claim refugee status at the point of entry or whose application at point of entry is unsuccessful do not have a right to claim housing assistance or social security benefits, nor are they allowed to work here.
It is these refugees, commonly known as "in-country applicants", who have experienced the greatest difficulties. In-country applicants are further subdivided into families with children under the age of 18 years, and single, adult asylum seekers. Families with young children who applied for asylum status after entering the country can get assistance from local authorities' Social Services Departments under s.17 of the Children Act 1989.
Section 17 places obligations upon local authorities to cater for children who are in need, and in discharging their obligation under s.17, local authorities may accommodate an entire family in the best interests of a child – the Act places emphasis on keeping families together wherever possible. As a result, the most vulnerable group therefore is single, adult in-country asylum seekers.
In October 1996, the plight of asylum seekers was highlighted when the cases of an Iraqi Kurd, a Romanian national, an Algerian and a Chinese citizen were considered in judicial review proceedings. They had all been refused assistance because they did not apply for refugee status at point of entry. They therefore sought assistance from their cash-strapped local authorities – the London Boroughs of Hammersmith and Fulham, Lambeth and the City of Westminster. This was a new development, and local authorities' finances had been set at levels which had not taken account of this additional liability.
The applicants submitted before Mr Justice Collins that they were eligible for assistance under s.21 of the National Assistance Act 1948, which states: "A local authority may with the approval of the Secretary of State… make arrangements for providing residential accommodation for persons 18 or over who by reason of age, illness, disability or any other circumstances are in need of care and attention."
The National Health Service and Community Care Act 1990, which deals with the provision of community care, is also pertinent to this issue.
The refugees' case was successful, and local authorities were held to owe a duty to asylum seekers. Later, in February 1997, the Court of Appeal re-affirmed the High Court's decision. This, however, is now the subject of a further appeal to the House of Lords.
In the interim, these decisions have meant that local authorities are now placed in an invidious position – they simply do not have the finances to cover these new obligations to asylum seekers and refugees.
Central government, seeking to ameliorate this problem, agreed to provide a special accommodation grant to affected local authorities by way of the release of Circular LAC (97) on Asylum Seekers' Accommodation Special Grant (ASAG), in February 1997.
While this gesture went some way toward providing financial assistance, it caused further panic as it does not provide the money for food vouchers or cash handouts, and because many refugees may not want council-provided accommodation.
Until the release of the circular, some local authorities were making cash payments or providing food vouchers – when they decided individual asylum seekers needed them – without also providing accommodation. Many applicants share accommodation with other refugees. They often prefer to live in close-knit communities where they share similar values and experiences.
This means that the court judgments and government circular have still not resolved the issue of how cash-strapped councils can provide for asylum seekers and refugees.
It also means that the National Assistance Act, which was originally passed to deal with destitution, is now being applied to modern circumstances involving asylum seekers and refugees – and the Government maintains that within the 1948 Act, cash for food may only be provided with hostel-type accommodation and not with private housing.
Some of the issues that still require resolution include:
Do local authorities have obligations to single adult in-country asylum seekers or those whose applications have been unsuccessful?
If a duty is owed, under which legislation?
If a duty is owed, how may it be discharged? For example, if the duty is under the National Assistance Act 1948, can it be discharged by providing cash or food vouchers with or without accommodation?
Would bed and breakfast accommodation and privately-rented accommodation flats be acceptable?
What funding formula will be used to provide local authorities with the resources to meet these additional obligations?
There is clearly a need to resolve these issues, soon. Local authorities and asylum seekers await the answers of the courts and the Government.