Nationality, Immigration and Asylum Act 2002

Prospective

44 Destitute asylum-seekerU.K.

(1)Section 94 of the Immigration and Asylum Act 1999 (c. 33) (support for destitute asylum-seeker) shall be amended as follows.

(2)In subsection (1) for the definition of “asylum-seeker” substitute—

““asylum-seeker” means a person—

(a)who is at least 18 years old,

(b)who is in the United Kingdom,

(c)who has made a claim for asylum at a place designated by the Secretary of State,

(d)whose claim has been recorded by the Secretary of State, and

(e)whose claim has not been determined;”.

(3)In subsection (1) for the definition of “dependant” substitute—

““dependant” in relation to an asylum-seeker or a supported person means a person who—

(a)is in the United Kingdom, and

(b)is within a prescribed class;”.

(4)For subsection (3) substitute—

“(3)A claim for asylum shall be treated as determined for the purposes of subsection (1) at the end of such period as may be prescribed beginning with—

(a)the date on which the Secretary of State notifies the claimant of his decision on the claim, or

(b)if the claimant appeals against the Secretary of State’s decision, the date on which the appeal is disposed of.

(3A)A person shall continue to be treated as an asylum-seeker despite paragraph (e) of the definition of “asylum-seeker” in subsection (1) while—

(a)his household includes a dependant child who is under 18, and

(b)he does not have leave to enter or remain in the United Kingdom.”

(5)Omit subsections (5) and (6).

(6)The following shall be substituted for section 95(2) to (8) of the Immigration and Asylum Act 1999 (c. 33) (support for destitute asylum-seeker: interpretation)—

“(2)Where a person has dependants, he and his dependants are destitute for the purpose of this section if they do not have and cannot obtain both—

(a)adequate accommodation, and

(b)food and other essential items.

(3)Where a person does not have dependants, he is destitute for the purpose of this section if he does not have and cannot obtain both—

(a)adequate accommodation, and

(b)food and other essential items.

(4)In determining whether accommodation is adequate for the purposes of subsection (2) or (3) the Secretary of State must have regard to any matter prescribed for the purposes of this subsection.

(5)In determining whether accommodation is adequate for the purposes of subsection (2) or (3) the Secretary of State may not have regard to—

(a)whether a person has an enforceable right to occupy accommodation,

(b)whether a person shares all or part of accommodation,

(c)whether accommodation is temporary or permanent,

(d)the location of accommodation, or

(e)any other matter prescribed for the purposes of this subsection.

(6)The Secretary of State may by regulations specify items which are or are not to be treated as essential items for the purposes of subsections (2) and (3).

(7)The Secretary of State may by regulations—

(a)provide that a person is not to be treated as destitute for the purposes of this Part in specified circumstances;

(b)enable or require the Secretary of State in deciding whether a person is destitute to have regard to income which he or a dependant of his might reasonably be expected to have;

(c)enable or require the Secretary of State in deciding whether a person is destitute to have regard to support which is or might reasonably be expected to be available to the person or a dependant of his;

(d)enable or require the Secretary of State in deciding whether a person is destitute to have regard to assets of a prescribed kind which he or a dependant of his has or might reasonably be expected to have;

(e)make provision as to the valuation of assets.”

Prospective

45 Section 44: supplementalU.K.

(1)The following shall be substituted for section 96(1)(b) of the Immigration and Asylum Act 1999 (ways of providing support)—

“(b)by providing the supported person and his dependants (if any) with food and other essential items;”.

(2)In section 97 of the Immigration and Asylum Act 1999 (c. 33) (support: supplemental)—

(a)in subsection (4) for “essential living needs” there shall be substituted “ food and other essential items ”,

(b)in subsection (5) for “essential living needs” there shall be substituted “ food and other essential items ”, and

(c)in subsection (6) for “living needs” there shall be substituted “ items ”.

(3)Paragraphs 2 and 6 of Schedule 8 to the Immigration and Asylum Act 1999 (support: regulations) shall cease to have effect.

(4)In paragraph 3 of Schedule 9 to the Immigration and Asylum Act 1999 (support: interim provision)—

(a)for “Subsections (3) to (8) of section 95” substitute “ Subsections (2) to (6) of section 95 ”, and

(b)for “subsections (5) and (7)” substitute “ subsections (4) and (5) ”.

(5)The following shall be substituted for section 21(1B) of the National Assistance Act 1948 (c. 29) (duty of local authority to provide accommodation: exclusion of destitute asylum-seeker: interpretation)—

“(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.”

(6)The following shall be substituted for section 45(4B) of the Health Services and Public Health Act 1968 (c. 46) (local authority promotion of welfare of elderly: exclusion of destitute asylum-seeker: interpretation)—

“(4B)Section 95(2) to (7) of that Act shall apply for the purposes of subsection (4A) 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.”

(7)[F1The following shall be substituted for paragraph 2(2B) of Schedule 8 to the National Health Service Act 1977 (c. 49) (local authority arrangements for prevention and care: exclusion of asylum-seeker: interpretation)—

“(2B)Section 95(2) to (7) of that Act shall apply for the purposes of sub-paragraph (2A) 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 social services authority.”]

Prospective

46 Section 44: supplemental: Scotland and Northern IrelandU.K.

(1)The following shall be substituted for section 12(2B) of the Social Work (Scotland) Act 1968 (c. 49)(general social welfare services of local authorities – exclusion of destitute asylum seeker: interpretation)—

“(2B)Section 95(2) to (7) of that Act shall apply for the purposes of subsection (2A) of this section; 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.”

(2)The following shall be substituted for section 13A(5) of that Act (provision of residential accommodation with nursing – exclusion of destitute asylum seeker: interpretation)—

“(5)Section 95(2) to (7) of that Act shall apply for the purposes of subsection (4) of this section; 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.”

(3)The following shall be substituted for section 13B(4) of that Act (provision of care and after-care – exclusion of destitute asylum seeker: interpretation)—

“(4)Section 95(2) to (7) of that Act shall apply for the purposes of subsection (3) of this section; 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.”

[F2(4)The following shall be substituted for article 14(2) of the Mental Health (Care and Treatment) (Scotland) Act 2003 (Consequential Provisions) Order 2005 (mental health services provided by local authorities)–

“(2)Section 95(2) to (7) of the Immigration and Asylum Act 1999 shall apply for the purposes of paragraph (1); 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.”.]

(6)The following shall be substituted for Article 7(3A) of the Health and Personal Social Services (Northern Ireland) Order 1972 (S.I. 1972/1265 (N.I. 14)) (prevention of illness, care and after-care: exclusion of asylum-seeker: interpretation)—

“(3A)Section 95(2) to (7) of that Act shall apply for the purpose of paragraph (3); and for that purpose a reference to the Secretary of State in section 95(4) or (5) shall be treated as a reference to the Department.”

(7)The following shall be substituted for Article 15(7) of that Order (general social welfare: exclusion of destitute asylum-seeker: interpretation)—

“(7)Section 95(2) to (7) of that Act shall apply for the purpose of paragraph (6); and for that purpose a reference to the Secretary of State in section 95(4) or (5) shall be treated as a reference to [F3an HSC trust].”

Prospective

47 Asylum-seeker: family with childrenU.K.

The following shall be substituted for section 122 of the Immigration and Asylum Act 1999 (c. 33) (destitute asylum-seeker with child: duty to support)—

“122 Family with children

(1)This section applies where a person (“the asylum-seeker”) applies for support under section 95 of this Act or section 17 of the Nationality, Immigration and Asylum Act 2002 (accommodation centres) if—

(a)the Secretary of State thinks that the asylum-seeker is eligible for support under either or both of those sections, and

(b)the asylum-seeker’s household includes a dependant child who is under 18.

(2)The Secretary of State must offer the provision of support for the child, as part of the asylum-seeker’s household, under one of the sections mentioned in subsection (1).

(3)A local authority (or, in Northern Ireland, an authority) may not provide assistance for a child if—

(a)the Secretary of State is providing support for the child in accordance with an offer under subsection (2),

(b)an offer by the Secretary of State under subsection (2) remains open in respect of the child, or

(c)the Secretary of State has agreed that he would make an offer in respect of the child under subsection (2) if an application were made as described in subsection (1).

(4)In subsection (3) “assistance” means assistance under—

(a)section 17 of the Children Act 1989 (c. 41) (local authority support),

(b)section 22 of the Children (Scotland) Act 1995 (c. 36) (similar provision for Scotland), or

(c)Article 18 of the Children (Northern Ireland) Order 1995 (S.I. 1995/775 (N.I. 2)) (similar provision for Northern Ireland).

(5)The Secretary of State may by order disapply subsection (3) in specified circumstances.

(6)Where subsection (3) ceases to apply to a child because the Secretary of State stops providing support, no local authority may provide assistance for the child except the authority for the area within which the support was provided.”

Prospective

51 Choice of form of supportU.K.

(1)The Secretary of State may refuse to provide support for a person under a provision specified in subsection (2) on the grounds that an offer has been made to the person of support under another provision specified in that subsection.

(2)The provisions are—

(a)sections 17 and 24 of this Act,

(b)section 4 of the Immigration and Asylum Act 1999 (accommodation for person temporarily admitted or released from detention), and

(c)sections 95 and 98 of that Act (support for destitute asylum-seeker).

(3)In deciding under which of the provisions listed in subsection (2) to offer support to a person the Secretary of State may—

(a)have regard to administrative or other matters which do not concern the person’s personal circumstances;

(b)regard one of those matters as conclusive;

(c)apply different criteria to different persons for administrative reasons (which may include the importance of testing the operation of a particular provision).

Prospective

53 Asylum-seeker: appeal against refusal to supportU.K.

The following shall be substituted for section 103 of the Immigration and Asylum Act 1999 (asylum support appeal)—

“103 Appeals: general

(1)This section applies where a person has applied for support under—

(a)section 95,

(b)section 17 of the Nationality, Immigration and Asylum Act 2002, or

(c)both.

(2)The person may appeal to an adjudicator against a decision that the person is not qualified to receive the support for which he has applied.

(3)The person may also appeal to an adjudicator against a decision to stop providing support under a provision mentioned in subsection (1).

(4)But subsection (3) does not apply—

(a)to a decision to stop providing support under one of the provisions mentioned in subsection (1) if it is to be replaced immediately by support under the other provision, or

(b)to a decision taken on the ground that the person is no longer an asylum-seeker or the dependant of an asylum-seeker.

(5)On an appeal under this section an adjudicator may—

(a)require the Secretary of State to reconsider a matter;

(b)substitute his decision for the decision against which the appeal is brought;

(c)dismiss the appeal.

(6)An adjudicator must give his reasons in writing.

(7)If an appeal under this section is dismissed the Secretary of State shall not consider any further application by the appellant for support under a provision mentioned in subsection (1)(a) or (b) unless the Secretary of State thinks there has been a material change in circumstances.

(8)An appeal under this section may not be brought or continued by a person who is outside the United Kingdom.

103A Appeals: location of support under section 95

(1)The Secretary of State may by regulations provide for a decision as to where support provided under section 95 is to be provided to be appealable to an adjudicator under this Part.

(2)Regulations under this section may provide for a provision of section 103 to have effect in relation to an appeal under the regulations with specified modifications.

103B Appeals: travelling expenses

The Secretary of State may pay reasonable travelling expenses incurred by an appellant in connection with attendance for the purposes of an appeal under or by virtue of section 103 or 103A.”