FECL 48 (November 1996):
In October of last year the Conservatives announced that as of 8 January 1996 no asylum seekers would be eligible for welfare benefits unless they applied for asylum on arrival (see FECL No.38: "Savage cutbacks in welfare benefits for asylum seekers", No.40: "New Immigration and Asylum Bill: Tory attack on asylum-seeker" ). The new regulations would apply retrospectively: all in-country asylum seekers who applied after the October announcement would lose their entitlement to benefit on 8 January.
By the end of 1995 the Conservatives had already staged a partial retreat. The implementation of the new regulations was postponed until 5 February. And the retrospective element was abandoned.
The new regulations came into effect on 5 February, denying welfare benefits to all asylum seekers who received a first instance rejection of their claim after that date.
Three local authorities promptly took the government to court. The new regulations denied asylum seekers Housing Benefit (to cover rent payments). But local authorities still had an obligation to provide homeless asylum seekers with temporary accommodation.
The government responded by promising extra cash for local authorities to cover their additional expenditure, until new legislation reached the statute looks which would scrap their obligations towards homeless asylum seekers.
On 20 June, however, the government suffered a major setback when the High Court ruled that the Secretary of State for Social Security had exceeded his powers in introducing the new social security regulations. Only primary legislation, the court ruled, could permit such a sweeping change to be lawful.
The entitlement of all asylum seekers to welfare benefits was reinstated retrospectively. All asylum seekers who had lost access to benefits since 5 February were able to make backdated claims for outstanding benefits.
Determined not to be deprived of their right to reduce asylum seekers to destitution, the government incorporated the now defunct social security regulations into the Asylum and Immigration Bill, thus satisfying the High Courts ruling on the need for primary legislation.
The Bill became law on 24 July. The entitlement (or, more precisely, lack of it) of asylum seekers to welfare benefits reverted to the situation as of 5 February. Asylum seekers who had gained access to benefits as a result of the court ruling of 20 June were again deprived of access to benefits.
But less than three months later, the government again suffered a major setback in the High Court. The latter ruled that by virtue of the National Assistance Act of 1948 local authorities had a legal obligation to provide financial support and accommodation for destitute asylum seekers.
Although the level of support being provided by local authorities for destitute asylum seekers varies from area to area, local authorities are now compensating at least in part for the withdrawal of welfare benefits from asylum seekers. An appeal against the High Court ruling is currently pending.
If the Conservatives have staggered from one setback to another in their efforts to reduce most asylum seekers to destitution, their "streamlining" of asylum procedures in the UK has been relatively straightforward, although widely opposed.
Their Asylum and Immigration Bill suffered only modest amendments in the course of its passage through Parliament and received its final reading on 24 July. In addition to depriving most asylum seekers of access to welfare benefits, the new legislation includes the following measures:
- Creation of a "white list" of supposedly safe countries. Asylum claims lodged by nationals of these countries will automatically be assumed to be "bogus" and will be dealt with under a special "fast track" procedure.
- Extension of "fast track" procedures and reduced rights of appeal for various other categories of asylum seekers. So broad and numerous are the various categories of asylum seekers listed in the legislation that the majority of asylum seekers now will be "fast-tracked".
- Withdrawal of an in-country right of appeal from anyone who travelled to the UK through a "safe third country". Asylum seekers who passed through such a country will automatically be sent back and may appeal only from abroad. All countries of the European Union are classified as safe third countries.
- The creation of a new range of immigration offences, mainly concerned with using deceit to enter or remain in the UK or using deceit to assist someone to do so, and increased powers for the police an immigration officers to track down illegal entrants.
- The imposition of fines up to £5,000 on employers who take on employees whose immigration status does not entitle them to work in the UK. The employers only defence is that he took "adequate measures" to check up on the employees immigration status. In other words, employers become a second tier of the Immigration Service.
Although the legislation received its final reading in July, the timetable for implementation of the specific measures which it contained ran over several months. Cuts in welfare benefits came into effect straightaway, the "white list" came into operation in October, and the imposition of fines on employers becomes operative in January 1997.
Many of the measures contained in the legislation flow directly out of the European Union-wide process of "harmonising" asylum policies, which, since the entry into force of the Maastricht Treaty, has been presided over by Steering Group I (Asylum and Immigration) of the K.4 Committee.
The concept of a "white list", for example, is provided for in the EUs "Resolution on manifestly unfounded applications for asylum" and "Conclusions on countries in which there is generally no serious risk of persecution", both of which were signed by EU Ministers of the Interior in 1992 (see FECL No.11: "London Conference on closer coordination of Immigration and Justice policies within the EC", "The meeting of the twelve Ministers of Immigration" and "'Deregulation' of legal and institutional frameworks - a handy tool for shifting power from legislative to executive bodies").
Similarly, the abolition of in-country appeal rights for asylum seekers who have passed through a "safe third country" is provided for by the EUs "Resolution on minimum guarantees for asylum procedures", signed by the EU Justice and Home Affairs (JHA) Ministers in 1995.
It is likely that a number of measures in the legislation will end up being challenged in the High Court, on the grounds that they run counter to Britains obligations under the UN Convention relating to the status of refugees (1951 Geneva Convention). Whether the Conservatives will be any more successful than on previous occasions remains to be seen.
One thing, however, is already clear. However much the Conservatives may condemn being "ruled from Brussels", when it comes to eroding standards of protection for asylum seekers the Conservatives are only too happy to align their policies with those in operation in the rest of Europe.
Stan Crooke (Glasgow)
The author works with the Scottish Refugee Council, but has written the above article in a personal capacity.