NASS Bulletin 75: SECTION 55 (LATE CLAIMS) 2002 ACT GUIDANCE

SECTION 55 (LATE CLAIMS) 2002 ACT GUIDANCE

1. CONTENTS
1. Contents
2. Scope of the document
3. Summary
4. The "as soon as reasonably practicable" test
5. Dependants aged under 18
6. Care needs
7. ECHR
8. Adult dependant joining supported asylum seeker
9. Age disputes
10. Emergency Accommodation
11. Local authorities

Annex A- section 55 NIA 2002
Annex B- regulation 2 of Asylum Support Regulations 2000
Annex C- section 21 NA 1948
Annex D- Article 3 and Article 8 ECHR
Annex E- EA process
Annex F to I examples of NASS decision letters

2. SCOPE OF THE DOCUMENT

2.1 This document provides guidance to NASS staff on the implementation of section 55 of the Nationality, Immigration and Asylum Act 2002 which comes into force on 8 January 2003. It is vital that case-workers apply the relevant statutory provisions and secondary legislation to the facts of the particular case before them and seek advice from senior officers ( who in turn may seek legal advice) if they have any doubt about how to apply the provisions. Each case must be considered on its particular merits. The guidance is not intended to be comprehensive or a definitive checklist of matters which will necessarily be relevant in every case. There may be cases which are not addressed by this guidance or where the guidance does not provide the right answer on the facts of the particular case.

3. SUMMARY

3.1 Section 55 of the 2002 Act prevents NASS from providing asylum support unless the Secretary of State is satisfied that the person applied for asylum as soon as reasonably practicable after arrival in the UK. In practice, if an applicant makes a claim immediately on arrival at the port then they will be able to access asylum support, provided they otherwise qualify. If the person fails, without good reason, to make an asylum claim immediately at the port of arrival then the expectation is that support will be refused.

3.2 Families with dependent children will, however, receive asylum support even if they did not apply as soon as reasonably practicable (see section 5 below).

3.3 In addition, those who claim asylum in country following a significant change in circumstances in their country of origin (provided they make their asylum claim at the earliest possible opportunity following that change of circumstance) will be supported by NASS (see section 4 below).

3.4 Section 55(5) (a) specifies that the measure does not prevent the Secretary of State from exercising a power to the extent necessary for the purpose of avoiding a breach of a person's Convention rights. Accordingly asylum seekers who successfully show that a refusal of support by NASS will result, for example, in a breach of article 3 ECHR will be granted support by NASS (see section 7 below).

3.5 Local authorities will be able to continue to provide support to asylum seekers under the National Assistance Act 1948 (or in Scotland the Social Work (Scotland) Act 1968) but only where they are presently empowered to do so, i.e. where special needs have been identified so as to engage those provisions (see section 6 below).

3.6 Section 55 does not apply to unaccompanied asylum seeking children (see section 9 for information on age disputes)

4. THE "AS SOON AS REASONABLY PRACTICABLE" TEST.

4.1 The burden of proof is on the applicant for support to show that it was not reasonably practicable to have made their asylum claim sooner. Those who apply for asylum immediately on arrival to an Immigration Officer will be able to access asylum support, provided they otherwise qualify. If the person fails, without good reason, to make an asylum claim immediately at the port of arrival then the expectation is that support will be refused.

4.2 There may however by a number of cases where a person has been given temporary admission by an Immigration Officer and then subsequently applies for asylum to the Immigration officer at a port. In such circumstances NASS must consider whether the individual had good reason for not applying as soon as reasonably practicable.

4.3 Those who claim asylum in country following a significant change in circumstances in their country of origin ( such as a military coup) will be supported by NASS provided they make their asylum claim at the earliest possible opportunity following that change of circumstance. Case-workers must decide whether a reason put forward for the timing of an asylum application is indeed a significant change of circumstance. NASS case-workers may need to refer to the most up to date information provided by IND's Country Information Policy Unit (CIPU) and refer the case to a senior officer (to be decided at local level). In cases where a significant incident such as a military coup has very recently taken place it may be necessary to liaise directly with CIPU's country officers. Decisions to provide support due to a significant change of circumstance must be approved by the senior officer ( to be decided at local level).

4.4 When considering whether a person can satisfy the Secretary of State that they applied as soon as reasonably practicable each case must be considered on its own merits taking into account the information provided by the applicant and that person's circumstances.

4.5 The following are examples which may be useful for NASS case-workers when considering whether to refuse support under section 55. These examples are simply examples. They do not purport to cover every type of case . Nor should they be seen as requiring the case-worker to reach a particular conclusion in the types of case they illustrate. They are merely illustrative of the type of case where an asylum seeker may not satisfy the Secretary of State that they applied as soon reasonably practicable. But every case must be considered on its individual merits and on the facts of the particular case.

Example 1:

An adult with no dependants has applied for asylum at the Asylum Screening Unit (ASU) in Croydon and gives an account of arriving in the UK in the back of a lorry the previous week. He asserts that it took him a week to establish himself, to find a friend to stay with and to decide how to apply for asylum.

In this example support would normally be refused because it would appear on these facts that the asylum seeker is unable to satisfy the Secretary of State that he applied for asylum as soon as reasonably practicable.

Example 2:

An adult with no dependants is apprehended by the Immigration Service whilst working illegally. He admits that he arrived in the UK clandestinely six months before and when the Immigration Officer (IO) informs him that he is to be removed from the UK he states that he wishes to apply for asylum. The IO conducts the screening procedures and refers the details to NASS for a section 55 decision.

Example 3:

An adult with no dependants has applied for asylum at the Asylum Screening Unit (ASU). During the screening procedures he advises that he arrived in the UK 5 months previously and was granted entry by an Immigration Officer (IO) as a visitor. He produces his passport which contains the IO's entry stamp.

Example 4:

An adult with no dependants has applied for asylum at the Asylum Screening Unit (ASU). During the screening procedures the applicant advises that he arrived as a visitor 5 months before but that a military coup took place in his home country the previous day and so he now has a fear of persecution were he to return. He has submitted his passport containing an Immigration Officer leave to enter stamp which clearly indicates when he arrived.

In this example the NASS case-worker refers to the most up to date information provided by IND's Country Information Policy Unit (CIPU) which confirms that a military coup did indeed take place. The case is referred to the NASS team leader (HEO) who approves the decision to provide support.

Example 5:

An adult with no dependants has applied for asylum immediately on arrival to an Immigration Officer (IO).

In this example the individual can satisfy the Secretary of State that they did apply for asylum as soon as reasonably practicable. There is no need for the IO to make a referral to NASS on section 55.

Example 6:

An adult with no dependants was refused entry by an Immigration Officer and was granted temporary admission (TA) pending removal. The applicant complies with the conditions of TA and returns to the port (to be removed from the UK) on the date set and asks if he can apply for asylum. The IO refers the case details to NASS for a section 55 decision.

5. DEPENDANTS AGED UNDER 18

5.1 Section 55 has the effect of preventing NASS from providing support to asylum seekers who have not applied for asylum as soon as reasonably practicable after arrival in the UK.

5.2 However support will be provided to an asylum seeker and his /her household if he or she has a dependant aged under 18 even if he/she did not apply for asylum as soon as reasonably practicable. It is for the Secretary of State, in practice NASS, to determine whether a person is an asylum seeker's dependant under 18 and to determine who forms part of his household.

5.3 Section 55(5) says:

"(5) This section shall not prevent - "

"(b) the provision of support under section 95 of the Immigration and Asylum Act 1999 or section 16 of this Act in accordance with section 122 of that Act (children), or
(c) the provision of support under section 98 of the Immigration and Asylum Act 1999 or section 23 of this Act (provisional support) to a person under the age of 18 and the household of which he forms a part."

5.4 Under section 122 of the 1999 Act the Secretary of State has a duty to provide support if it is not being provided to a person who appears to be a destitute asylum seeker and whose household includes a dependant under the age of 18. Dependants are defined in regulation 2 of the Asylum Support Regulations 2000 (see Annex B)

5.5 The plain English version of a dependant child under 18, as set out in the Asylum Support Regulations, is where the person is under 18 and is the:

· son or daughter of the asylum seeker or of his/her spouse; or
· member of close family; or
· a person who has been living as part of the household for at least six out of the 12 months before screening; or
· since birth; or
· is included on the asylum application as a dependant.

5.6 (NB the above is for ease of reference and guidance only- always refer to the original regulations)

5.7 Where we have determined that an asylum seeker has a dependant child we will also support those we consider to be a dependant of the asylum seeker as part of the "household". The definitions of adult dependants are set out in the Asylum Support Regulations 2000. This means that where there is a dependant child we will also support :

· the asylum seeker's spouse
· a person aged 18 or over who is in need of care and attention from the asylum seeker or a member of his household by reason of a disability and is a member of his close family or has been living as part of the household for at least 6 of the previous 12 months or since birth
· a person who has been living with the asylum seeker as a member of an unmarried couple for at least two of the three previous years
· anyone included as a dependant on the asylum seeker's asylum application ( e.g. aged parent).

5.8 (NB the above is for ease of reference and guidance only- always refer to the original regulations)

5.9 Where, however, there are no dependant children then the dependants set out above would not get support in the case of a late claim by the principal adult.

5.10 In order to qualify as a dependant child the individual must be considered to be dependant on the asylum seeker. Thus if a family group arrives which consists of husband, wife and child under 18 together with the uncle of the child and all the adults apply for asylum then the husband, wife and child will be able to receive support irrespective of whether they applied late for asylum, but the uncle will not get support. This is because the child is dependant for support purposes on its father and mother and cannot also be considered to be dependant for support purposes on the uncle.

5.11 Where we provide support to a family with a child because we accept that they have an under 18 dependant, NASS support must be withdrawn if that dependant reaches 18 if the asylum claim was not made as soon as reasonably practicable. This withdrawal of support would also affect any adult dependants who had been receiving support as part of the household.

6. CARE NEEDS

6.1 Those determined by a local authority to have a need for care and attention because of things like age, illness, or disability must be supported by the local authority under the National Assistance Act 1948 (or in Scotland the Social Work (Scotland) Act 1968) if that need cannot otherwise be met. NASS support would not be available in such circumstances.

6.2 Section 116 of the Immigration and Asylum Act 1999 amended the National Assistance Act ( and section 120 amended the Social Work (Scotland) Act 1968) by preventing local authorities from being able to provide residential accommodation to asylum seekers where their need for care and attention has arisen solely because of being destitute of because of the physical effects or anticipated effects of being destitute.

6.3 The effect of the amendment was that local authorities continued (and still continue) to have a duty to provide residential accommodation to asylum seekers, under section 21 of the National Assistance Act 1948 (see Annex C), where they have a need for care and attention which has not arisen solely because he is destitute or because of the physical effects or anticipated effects of being destitute.

6.4 If an asylum seeker has a clear and urgent need for care and attention under section 21 of the National Assistance Act 1948 then the relevant local authority would provide basic accommodation and support pending an assessment which would be carried out without undue delay. However if an asylum seeker presented with non urgent and unclear needs then the local authority would be within their rights not to provide accommodation until an assessment has been carried out, which should be carried out without undue delay.

6.5 NASS case-workers are not trained to make decisions on whether an applicant for asylum has care needs which fall within the terms of section 21 of the National Assistance Act 1948. In addition the responsibility for deciding whether a person has care needs under section 21 of the National Assistance Act 1948 rests with each individual local authority.

6.6 However, it is inevitable that there will be some cases that stand out because the person has severe needs. When such cases come to attention at the Asylum Screening Unit they should be advised to contact their local authority without delay. When this is considered appropriate it is good practice to make a reference to it in the NASS section 55 decision letter.

7. EUROPEAN CONVENTION ON HUMAN RIGHTS (ECHR)

7.1 Although Section 55 has the effect of preventing NASS from providing support to asylum seekers who have not applied for asylum as soon as reasonably practicable, support may nevertheless be provided if an individual is able to satisfy NASS that the lack of support would breach the European Convention on Human Rights, for example, article 3 of that Convention(see Annex D).

7.2 Section 55(5) of the 2002 Act says:

"(5) This section shall not prevent - "

"(a) the exercise of a power by the Secretary of State to the extent necessary
for the purpose of avoiding a breach of a person's Convention rights ( within the meaning of the Human Rights Act 1998(c.42)),"

7.3 Each case must be considered on its particular merits and the weight to be given to any particular factor will vary depending on the circumstances of the particular case.

7.4 It is vital that case-workers assess each case individually and decide whether it is necessary to grant support to avoid a breach of the person's Convention rights. Legal advice should be sought where necessary.

7.5 It is vital that case-workers are alert to any health or other relevant factors which might be material to, say, an article 3 issue even if the person does not themselves raise the issue during the screening interview. If the case-worker has any concerns at all then they should be set out clearly on the screening form and the responsible NASS case-worker should be informed orally by the person who conducted the interview of the concerns in question. It may be necessary for the NASS case-worker to interview the person themselves or seek legal advice about the case.

7.6 Cases referred by ASU to NASS case-workers for a section 55 decision where the asylum seeker or dependant is pregnant should be handled with sensitivity and care.

7.7 A woman expecting a child who makes a late asylum claim could be granted support either by NASS or by the local authority. If she reaches the article 3 ECHR threshold then it will be NASS which provides support. If she doesn't then the effect of section 21 (1) (aa) of the National Assistance Act 1948 (see Annex C) is that the local authority are empowered to provide support in the form of both food and accommodation. NASS decisions will depend on the particular facts of each case and the circumstances of the individual. Cases should be referred to a senior officer (to be decided at local level) for approval.

7.8 Asylum seekers who are pregnant should normally be required to produce documentary evidence such as a letter from a doctor or a midwife or a form MAT B1 signed by a health professional. This requirement may be temporarily waived in the case of those who are obviously pregnant.

8. ADULT DEPENDANT JOINING SUPPORTED ASYLUM SEEKER

8.1 Where an asylum seeker arrives after 8 January 2003 and is not able to satisfy the Secretary of State that they applied for asylum as soon as reasonably practicable they will normally be refused support unless they have a dependant child under 18.

8.2 However if an asylum seeker is not able to satisfy the Secretary of State that they applied for asylum as soon as reasonably practicable and does not have a dependant child under 18 they may nevertheless be supported, if they are considered by NASS to be a dependant of another asylum seeker . "Dependant" is defined by regulation 2 of the Asylum Support Regulations 2000 (see Annex B).

8.3 Thus where a person makes a late claim for asylum but is, for example the spouse of a NASS supported asylum seeker, the person may be supported as their dependant provided all other criteria are met.

9. AGE DISPUTES

9.1 Section 55 of the Nationality, Immigration and Asylum Act 2002 does not apply to unaccompanied asylum seeking children (UASC). A UASC is a person who applies for asylum and is aged under 18 and who has no responsible adult to care for them in this country. UASCs are supported by local authority social services departments (SSDs) under the Children Act 1989. UASC' s cannot lawfully be supported by the National Asylum Support Service or be provided with emergency accommodation by the voluntary sector.

9.2 During the asylum screening process those wishing to apply for asylum who claim to be under 18 and unaccompanied (i.e. a UASC) will have their age considered and where appropriate it may be decided that an individual is not a minor. Where an applicant claims to be a minor but his/her appearance strongly suggests that he/she is over 18, IND treat the applicant as an adult until there is credible evidence to substantiate the age claimed. In the absence of any independent evidence of age, the decision made during screening is made immediately on "physical appearance"; this is required for the application to be processed within the correct category. If there is any uncertainty, the benefit of the doubt is given and the applicant is dealt with as a minor. Should the screening process determine that the applicant is not a minor as claimed, he/she is informed that should he/she obtain any evidence to substantiate such a claim, it can be submitted to IND and will be reviewed accordingly. All applications from unaccompanied minors should be handled with sensitivity and care at all stages.

9.3 From 8 January a person who is identified by IND as being aged 18 or over will be refused support if the individual cannot satisfy the Secretary of State ( in practice NASS) that they did not apply for asylum as soon as reasonably practicable. Support could however be provided where the individual has a dependant under 18 ( which may be the case if for example the person has a brother or sister with them) ( see section 5) or where failure to provide support would result in a breach of the European Convention on Human Rights (ECHR) ( see section 6) or where there has been a significant change in the country of origin such as a military coup ( see section 4).

9.4 When a person is considered by IND to be 18 or over and they have been refused support under section 55 their case will be referred by IND to the Refugee Council Panel of Advisers who may refer the individual to a local authority social services department (SSD) for assessment. If a SSD subsequently determines the individual to be a UASC, the person will be eligible for support from the SSD under the Children Act 1989 and the usual grant funding arrangements will apply.

10. EMERGENCY ACCOMMODATION

10.1 To coincide with the coming into force of section 55 of the Nationality, Immigration and Asylum Act 2002 there has been a general tightening up of the procedures for accessing emergency accommodation.

10.2 Emergency accommodation (EA) is provided under section 98 of the Immigration and Asylum Act 1999 (the 1999 Act) and can only be provided to asylum seekers, or the dependants of an asylum seeker, who appear to be destitute. An asylum seeker is defined by section 94 of the 1999 Act as being a person who is not under 18 and who has made a claim for asylum, which has been recorded by the Secretary of State. EA is generally managed by voluntary sector organisations granted funded by NASS (although in some areas this is not the case).

10.3 The need to tighten up existing procedures for accessing EA is to ensure that the new measures for refusing support under section 55 can operate effectively and to ensure that EA is only provided where there is a legal power to do so.

10.4 Annex E sets out the procedures which must be implemented from 8 January 2003.

Port cases
10.5 From 8 January EA may be provided to an asylum seeker who has applied for asylum to an Immigration Officer at the port of entry if they have a Standard Acknowledgement Letter (SAL) which indicates that they applied on arrival or an Application Registration Card (ARC) together with their IS96 document stamped by an Immigration Officer (IO) at a port.

10.6 Where it has not been possible to issue a SAL or a ARC , EA may also be provided where the person asserts they have applied for asylum at a port and they have their IS 96 document which has been stamped by an Immigration officer at a port. It should be noted that the IS 96 is not in itself evidence that an asylum claim has been recorded but we are prepared to allow access to emergency accommodation in the above circumstances.

In country cases
10.7 From 8 January EA may also be provided when an asylum seeker can furnish a NASS decision letter which authorises this access. This is because from 8 January 2003 support, including EA can only be provided to those who can satisfy the Secretary of State that they applied for asylum as soon as reasonably practicable, or that they have a dependant aged under 18 or that failure to provide support would breach the European Convention on Human Rights (ECHR). Such decisions will be made during the asylum screening process.

10.8 If an asylum seeker presents themselves to the voluntary sector granted funded by NASS to provide EA and asserts that they have lost their NASS decision letter the voluntary sector may ring IND on 0208-760-3007 where the NASS decision can be confirmed.

Out of hours
10.9 There could be a very small number of cases where an in country family with children asks for emergency accommodation out of hours and before they have been able to have their asylum application recorded. It would be unlawful to provide support to such persons since they have not yet had their asylum claim recorded (see paragraph 10.2 above). Accordingly NASS EA should not be provided in such circumstances. The local authority will however have a duty to support under the Children Act. The NASS Regional Managers are available out of hours to provide advice in such circumstances. We are very keen that this vulnerable group continue to have access to support and we are looking at the best way for referrals to be made to local authorities. Once they have been screened and obtained a NASS decision letter, which confirms that they have applied for asylum and are a family with children, then EA will normally be provided.

10.10 There could also be cases where an in country family with children ask for emergency accommodation out of hours and they have already come to the attention of an Immigration Officer in country (for example a family that has been picked up at a motorway service station) and their asylum claim has been recorded but it has not been possible to refer the case to NASS for confirmation that they can access emergency accommodation. In such circumstances EA may be provided if they assert that they have already applied for asylum, they have a SAL or ARC together with an IS96 and have dependant children under 18 with them who also have IS96's.

10.11 Where it has not been possible to issue a SAL or ARC, EA may also be provided where the person presents out of hours and asserts they have applied for asylum to an Immigration Officer in country and they have dependant children with them and they have IS 96 documents for each person.

11. LOCAL AUTHORITIES

11.1 Section 55 (3) of the 2002 Act prevents local authorities from providing or arranging the provision of support under section 2 of the Local Government Act and under certain sections of the Housing Act and Housing (Scotland) Act, to asylum seekers where the Secretary of State is not satisfied that they applied for asylum as soon as reasonably practicable. This is to ensure that authorities do not provide support to those asylum seekers who are not eligible for support from NASS. Section 55 (6) also imposes a reporting obligation on local authorities when they believe that a person to whom it is proposed to provide or arrange for the provision of the support specified has made a claim for asylum. This will help the Home Office to maintain an up to date address of such individuals.

11.2 Separate guidance was issued to all local authorities on section 55 on 23 December 2002. Further copies of the guidance can be obtained by contacting NASS Secretariat, Policy and Communications on 0208-633-0134.

ANNEX A
SECTION 55 OF THE NATIONALITY , IMMIGRATION AND ASYLUM ACT 2002

55 Late claim for asylum: refusal of support

(1) The Secretary of State may not provide or arrange for the provision of support to a person under a provision mentioned in subsection (2) if -
(a) the person makes a claim for asylum which is recorded by the Secretary of State, and
(b) the Secretary of State is not satisfied that the claim was made as soon as reasonably practicable after the person's arrival in the United Kingdom

(2) The provisions are -
(a) section 4, 95 and 98 of the Immigration and Asylum Act 1999 (c.33) (support for asylum-seeker, &c.), and
(b) Sections 16 and 23 of this Act (accommodation centre).

(3) An authority may not provide or arrange for the provision of support to a person under a provision mentioned in subsection (4) if -
(a) the person has made a claim for asylum, and
(b) the Secretary of State is not satisfied that the claim was made as soon as reasonably practicable after the person's arrival in the United Kingdom.

(4) The provisions are -
(a) section 29(1)(b) of the Housing (Scotland) Act 1987 (c. 26) (accommodation pending review),
(b) section 188(3) or 204(4) of the Housing Act 1996 (c. 52) (accommodation pending review or appeal), and
(c) section 2 of the Local Government Act 2000 (c.22) (promotion of well-being).

(5) This section shall not prevent -
(a) the exercise of a power by the Secretary of State to the extent necessary for the purpose of avoiding a breach of a person's Convention rights (within the meaning of the Human Rights Act 1998 (c.42)),
(b) the provision of support under section 95 of the Immigration and Asylum Act 1999 or section 16 of this Act in accordance with section 122 of that Act (children), or
(c) the provision of support under section 98 of the Immigration and Asylum Act 1999 or section 23 of this Act (provisional support) to a person under the age of 18 and the household of which he forms part.

(6) An authority which proposes to provide or arrange for the provision of support to a person under a provision mentioned in subsection (4) -
(a) must inform the Secretary of State if the authority believes that the person has made a claim for asylum,
(b) must act in accordance with any guidance issued by the Secretary of State to determine whether subsection (3) applies, and
(c) shall not be prohibited from providing or arranging for the provision of support if the authority has complied with paragraph (a) and (b) and concluded that subsection (3) does not apply.

(7) The Secretary of State may by order -
(a) add, remove or amend an entry in the list in subsection (4);
(b) provide for subsection (3) not to have effect in specified cases or circumstances.

(8) An order under subsection (7) -
(a) may include transitional, consequential or incidental provision,
(b) must be made by statutory instrument, and
(c) may not be made unless a draft has been laid before and approved by resolution of each House of Parliament.

(9) For the purposes of this section "claim for asylum" has the same meaning as in section 17.

(10) A decision of the Secretary of State that this section prevents him from providing or arranging for the provision of support to a person is not a decision that the person does not qualify for support for the purpose of section 103of the Immigration and Asylum Act 1999 (c.33) (appeals).

(11) This section does not prevent a person's compliance with a residence restriction imposed in reliance on section 68 (induction).
ANNEX B

Extract from the Asylum Support Regulations 2000

Interpretation

2. (1) In these Regulations

"the Act" means the Immigration and Asylum Act 1999 ;
"asylum support" means support provided under section 95 of the Act;
"dependant" has the meaning given by paragraphs (4) and (5);
"the interim Regulations" means the Asylum Support (Interim Provisions) Regulations 1999(b);
"married couple" means a man and woman who are married to each other and are members of the same household; and
"unmarried couple" means a man and woman who, though not married to each other, are living together as if married.

(2) The period of 14 days is prescribed for the purposes of section 94(3) of the Act (day on which a claim for asylum is determined).

(3) Paragraph (2) does not apply in relation to a case to which the interim Regulations apply (for which case, provision corresponding to paragraph (2) is made by regulation 2(6) of those Regulations).

(4) In these Regulations "dependant", in relation to an asylum-seeker, a supported person or an applicant for asylum support, means, subject to paragraph (5), a person in the United Kingdom ("the relevant person") who-
(a) is his spouse;
(b) is a child of his or of his spouse, is dependant on him and is or was at the relevant time, under 18:
(c) is a member of his spouse's close family and is, or was at the relevant time, under 18;
(d) Had been living as part of his household-
(i) for at least six of the twelve months before the relevant time, or
(ii) since birth, and is, or was at the relevant time, under 18;
(e) is in need of care and attention from him or a member of his household by reason of a disability and would fall within sub-paragraph © or (d) but for the fact that he is not, and was not at the relevant time, under 18;
(f) had been living with him as a member of an unmarried couple for at least two of the three years before the relevant time;
(g) is living as part of his household and was, immediately before 6th December 1999 (the date when the interim Regulations came into force), receiving assistance from a local authority under section 17 of the Children Act 1989(a);
(h) Is living as part of his household and was, immediately before the coming into force of these Regulations, receiving assistance from a local authority under-
(i) section 22 of the Children (Scotland) Act 1995(b); or
(ii) Article 18 of the Children (Northern Ireland) Order 1995(c) or
(i) has made a claim for leave to enter or remain in the United Kingdom, of for variation on any such leave, which is being considered on the basis that he is dependant on the asylum seeker;
and in relation to a supported person, or an applicant for asylum support, who is himself a dependant of an asylum-seeker, also includes the asylum-seeker if in the United Kingdom.

(5) Where a supported person or applicant for asylum support is himself a dependant of an asylum-seeker, a person who would otherwise be a dependant of the supported person, or of the applicant, for the purposes of these Regulations is not such a dependant unless he is also a dependant of the asylum-seeker.

(6) In paragraph (4), "the relevant time", in relation to the relevant person, means-
(a) The time when an application for asylum support for him was made in accordance with regulation 3(3); or
(b) If he has joined a person who is already a supported person in the United Kingdom and sub-paragraph (a) does not apply, the time when he joined that person in the United Kingdom.

(7) Where a person, by falling within a particular category in relation to an asylum-seeker or supported person, is by virtue of this regulation a dependant of the asylum-seeker or supported person for the purposes of these Regulations, that category is also a prescribed category for the purposes of paragraph © of the definition of "dependant" in section 94(1) of the Act and, accordingly, the person is a dependant of asylum-seeker or supported person for the purposes of Part VI of the Act.

(8) Paragraph (7) does not apply to a person who is already a dependant of the asylum-seeker or supported person for the purposes of Part VI of the Act because he falls within either of the categories mentioned in paragraphs (a) and (b) of the definition of "dependant" in section 94(1) of the Act.

(9) Paragraph (7() does not apply for the purposes of any reference to a "dependant" in Schedule 9 to the Act.

ANNEX C

Relevant extracts from the National Assistance Act

SECTION 21 OF THE NATIONAL ASSISTANCE ACT 1948 (as amended)

"21.-(1) Subject to and in accordance with the provision of this Part of this Act, a local authority may with approval of the Secretary of State, and to such extent as he may direct shall, make arrangements for providing] - -

(a) residential accommodation for persons aged 18 or over who by reason of age, illness, disability or any other circumstances are in need of care and attention which is no otherwise available to them;
and
(aa) residential accommodation for expectant and nursing mothers who are in need of care and attention which is no otherwise available to them;

(1A) A person to whom section 115 of the Immigration and asylum Act 1999 (exclusion form benefits) applies may not be provided with residential accommodation under subsection (1)(a) if his need for care and attention has arisen solely-
(a) because he is destitute; or
(b) because of the physical effects, or anticipated effects, of his being destitute."

N.B. Section 21(1)(aa) is a power not a duty.
This Annex is for information only. Local authorities must always the original legislation and directions and approvals made by the Secretary of State.
ANNEX D

EUROPEAN CONVENTION ON HUMAN RIGHTS (ECHR)

Article 3 - Prohibition of torture
No one shall be subjected to torture or to inhuman or degrading treatment or punishment."

Article 8 - Right to respect for private and family life

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

ANNEX E

NEW PROCEDURES FROM 8 JANUARY 2003 FOR AUTHORISING ACCESS TO EMERGENCY ACCOMMODATION

At the Croydon ASU

1. the screening interview in ASU will include questions on the timeliness of the asylum application

2. the answers will be recorded in the usual way and the ASU interviewer will make a referral to the NASS decision maker (who will have sight of the full interview notes)

3. the decision on access to NASS support will be set out in a letter (stamped with an IND security date stamp to help guard against forgery) that will be handed to the applicant before he/she leaves the ASU

4. a letter confirming access to EA will act as authorisation for the voluntary sector to admit the applicant

5. a letter refusing access to EA will give the reasons for the decision

6. unless the applicant is in possession of an affirmative letter there will be no authority to admit to EA

7. all decisions will be recorded on the central computer system on the same day so that any queries about the decisions taken can be dealt with by telephone promptly

At other ASUs and local enforcement offices (LEOs)

8. The main differences will be:

9. that the referral to the NASS decision maker (see second bullet point above) will be by telephone and faxing of the interview notes

10. that the decision letter will be faxed to the relevant ASU or LEO to be handed to the applicant

Out of hours

11. When the ASUs are closed (i.e. weekday evenings and over the weekend) we plan that there will be an out of hours NASS duty officer available to take decisions and issue letters:

12. up to 9.00pm on weekdays

13. from 9.00am to 5.00pm on Saturday and Sunday

14. If for any reason it is not possible to issue a letter immediately out of hours the decision will be given by telephone and confirmed in writing when the office is next open

15. Families with children who have applied for asylum to an Immigration Officer in country (for example after they were found working illegally) can be provided with EA if:
· they present to the voluntary sector out of hours; and
· the individual asserts they have had their asylum claim recorded; and
· they can produce their SAL, or ARC together with an IS96 for all family members (if it has not been possible to issue a SAL or ARC then the IS96's will suffice); and
· at least one of the family members present is a dependant of the asylum seeker and is a child under 18

17. If access to EA is granted in these circumstances the voluntary sector should record the reason for their decision on the application form.

Port cases - asylum claim made immediately on arrival

19. The main differences will be:

20. That following the screening interview by IS (confirming that the claim has been made straightaway), the applicant will be issued with a SAL1 or ARC and an IS96 (Temporary Admission form) with an Immigration Officer's port stamp on it

21. The case will not be referred to a NASS decision maker.

20. The SAL1, or ARC together with the stamped IS96, will give access to EA.

21. Where it has not been possible to issue a SAL or ARC, the stamped IS96 will act as authorisation for the voluntary sector to admit the applicant to EA provided the applicant is asserting that he/she has indeed applied for asylum.

22. The reason for the decision to enter EA should be recorded on the NASS application form.

Port cases - asylum claim made late

23. In a small number of existing port non-asylum cases where temporary admission has already been granted a late asylum claim is likely to be made. Such cases arise when, for example, a person has been given entry as a student and subsequently makes an asylum claim to delay/avoid removal. In such cases a referral will need to be made to the NASS decision maker in line with the "other ASUs and LEOs" process.

24. Those not entitled to support in these circumstances will receive the following:

· a NASS letter refusing access to EA and giving the reasons for the decision

· an IS96 amended to show that the applicant is not entitled to NASS support (to ensure that EA is not made available inadvertently if the NASS letter is not presented to the voluntary sector).

ANNEX F

EXAMPLE (NB: wording subject to amendment)

ACCEPTANCE LETTER TO BE ISSUED TO APPLICANTS BY NASS

Applicant's name
DOB
Nationality
HO Reference number Date

Dear applicant

Provision of Support from the National Asylum Support Service (NASS) under Sections 4, 95 and 98 of the Immigration and Asylum Act 1999

Section 55 of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act) prevents the Secretary of State from providing or arranging for the provision of support under sections 4, 95 and 98 of the Immigration and Asylum Act 1999 (the 1999 Act) if he is not satisfied that the person's asylum claim was made as soon as reasonably practicable after arrival in the United Kingdom.

You claim to have entered the United Kingdom on [date] by [means of transport]. You applied for asylum on [date] at [place]. On the basis of the available evidence that you have provided, including all the information you gave during interview at [place], the Secretary of State is satisfied that you made your asylum claim as soon as reasonably practicable after your arrival in the United Kingdom.

This means that if you are destitute you may be provided with emergency accommodation, under section 98 of the 1999 Act, pending an application to NASS for support under section 95 of that Act.

This is an important document

In order to access emergency accommodation you must present this letter at your local voluntary sector office and therefore you should make every effort not to lose or misplace it.

Yours sincerely

[name]
NASS
ANNEX G

EXAMPLE (NB: wording subject to amendment)

ACCEPTANCE LETTER ISSUED TO FAMILIES BY NASS

Applicant's name
DOB
Nationality
HO Reference number Date

Dear applicant

Provision of Support from the National Asylum Support Service (NASS) under Sections 4, 95 and 98 of the Immigration and Asylum Act 1999

The Secretary of State is satisfied that you have a dependant aged under 18.

This means that if you are destitute you may be provided with emergency accommodation, under section 98 of the 1999 Immigration and Asylum Act,pending an application to NASS for support under section 95 of that Act.

This is an important document

In order to access emergency accommodation you must present this letter at your local voluntary sector office and therefore you should make every effort not to lose or misplace it.

Yours sincerely

[name]
NASS
ANNEX H

EXAMPLE (NB: wording subject to amendment)

LETTER ISSUED BY NASS TO APPLICANTS WHO COME UNDER EXCEPTIONS CATEGORIES

Applicant's name
DOB
Nationality
HO Reference number Date

Dear applicant

Provision of Support from the National Asylum Support Service (NASS) under sections 4, 95 and 98 of the Immigration and Asylum Act 1999

You claim to have entered the United Kingdom on [date] by [means of transport]. You applied for asylum on [date] at [place]. On the basis of the available evidence that you have provided, including all the information you gave during interview at [place], the Secretary of State is not satisfied that you made your asylum claim as soon as reasonably practicable after your arrival in the United Kingdom.

However, the Secretary of State has decided in the particular circumstances of your case to provide support in order to avoid a breach of your Convention rights (within the meaning of the Human Rights Act 1998). This means that you may be provided with emergency accommodation, under section 98 of the 1999 Act, pending an application to NASS for support under section 95 of that Act.

This is an important document

In order to access emergency accommodation you must present this letter at your local voluntary sector office and therefore you should make every effort not to lose or misplace it.

Yours sincerely

[name]
NASS
ANNEX I

EXAMPLE (NB: working subject to amendment)

REFUSAL LETTER ISSUED TO APPLICANTS BY NASS

Applicant's name
DOB
Nationality
HO Reference number Date

Dear applicant

Provision of Support from the National Asylum Support Service (NASS) under sections 4, 95 and 98 of the Immigration and Asylum Act 1999

You claim to have entered the United Kingdom on [date] by [means of transport]. You applied for asylum on [date] at [place]. On the basis of the available evidence that you have provided, including all the information you gave during interview at [place], the Secretary of State is not satisfied that you made your asylum claim as soon as reasonably practicable after your arrival in the United Kingdom.

That is because,

[on your own account, you had the opportunity to claim asylum at the port, but failed to do so]

The Secretary of State is not satisfied that there are any circumstances in your case that would exempt you from section 55. You may not, therefore, be provided with support under sections 4, 95 and 98 of the 1999 Act.

If there is any evidence you have which you think may satisfy the Secretary of State that [you did not have the opportunity to claim asylum at port] then you should forward it to NASS as soon as possible together with your NASS 1 application form.

There is no right of appeal to an Asylum Support Adjudicator against this decision.

Yours sincerely

[name]
NASS

Source: http://www.homeoffice.gov.uk/