Consultation on proposals for the First-tier Tribunal (Immigration and Asylum Chamber) and Upper Tribunal (Immigration and Asylum Chamber) fees

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1 Consultation on proposals for the First-tier Tribunal (Immigration and Asylum Chamber) and Upper Tribunal (Immigration and Asylum Chamber) fees Local authorities have responsibilities to provide essential safety net support to the most vulnerable migrants who cannot access mainstream benefits or statutory housing services due to their immigration status, i.e. they have no recourse to public funds (NRPF). In England these duties are set out in the Children Act 1989 and the Care Act 2014, (there is equivalent legislation that applies in the devolved administrations), and require local authorities to provide accommodation and financial assistance to: destitute migrant families where there is a child in need, care leavers, and adults with care and support needs. Section 68 and Schedule 12 of the Immigration Act 2016 creates a statutory framework for providing accommodation and financial assistance to the following people who make up part of the NRPF client group supported by local authorities: Families where the parents have no current immigration permission Families where the parent has an EU derived right to reside as the primary carer of a British Citizen child Care leavers with no current immigration permission Immigration status will be a key factor in determining eligibility under the new legislation, for example, support may be provided when a person is destitute and has a pending nonasylum human rights appeal. There is no indication of when these provisions will be implemented and at present they are only set to apply in England. Q1, Q4 & Q5: Increase of fees and imposition at later appeal stages Data from 35 local authorities* shows that 2202 households and 3964 dependants were being supported at the end of The status of the main applicant in these households is: 66% - no current immigration permission, e.g. visa overstayer; illegal entrant 3% - asylum seeker The data shows that 51% of family cases were closed by local authorities in 2015 due to having been granted leave to remain. This data demonstrates that a significant number of people receiving assistance from local authorities will be in the process of regularising their status, of which a sizeable proportion will do so successfully. Most of these applications are made under the family (FM) and private life routes to settlement set out in the Immigration Rules and attract a right of appeal on refusal. Local authorities would be concerned if an additional barrier is imposed on people who are attempting to regularise their immigration status by increasing first-tier appeal fees and introducing fees at other stages of the appeals process.

2 Although a proposed exemption will cover a significant proportion of the client group supported by local authorities (see response to Q3 ), there is concern that, when additional costs are imposed no pursuing an immigration claim, local authorities will be more likely to see presentations from people who are unable to resolve their immigration status successfully before they reach the crisis point that causes them to request accommodation and financial assistance. The imposition of the appeal fees must be considered alongside application fees, the Immigration Health Charge, an application fee waiver policy which is difficult to satisfy, and the lack of legal aid for immigration matters to obtain appropriate advice and assistance with pursuing a claim. As of 12 July 2016 section 34 of the Immigration Act 2016 will come into force which will criminalise illegal working. Notwithstanding the fact that people without immigration permission are at risk of exploitation from employers, resorting to other means to obtain money for legal fees and appeals leads to additional safeguarding risks to the individual, their family and communities, such as using illegal money lenders or undertaking other criminal acts. The greater the financial cost of pursuing an immigration claim, the more likely it will be that people will take greater risks to obtain the funds to do this. Q2: Exemption based on the fee waiver policy Local authorities would support an exemption based on the Home Office fee waiver policy for both in-country applicants, and appellants bringing an appeal from abroad following refusal of an application made in the UK. Local authorities would not be supportive of a policy which creates an obstacle to integration within communities for a person who has leave to remain on a settlement route and is relying on the fee waiver to enable them to extend their leave to remain and pursue an appeal should they be refused. Local authorities would be concerned that the risk of becoming an overstayer is increased if a person, who has been granted a fee waiver to make an in-time application, extends their leave under section 3C of the Immigration Act 1971 but is then unable to pursue their appeal, and retain their lawful residence and conditions of previous leave, on the sole basis that they cannot afford the appeal fee. Should such a person fail to pursue their appeal and then become an overstayer, this is likely to result in the loss of employment, benefits and housing, and it may then fall to the local authority to assess need and potentially provide accommodation where the person has children or care needs. The person would then need to start the application process again to assert their human rights claim, but in the position as an overstayer rather than someone with lawful presence and entitlements. The lack of an appeal fee exemption tied to acceptance of an application fee waiver may therefore be a contributing factor that gives rise to more presentations to local authorities requesting support. In the current proposals not all local authority supported applicants will be exempt from paying the appeal fee (see response to Q3); should they not be included in the new exemptions, then many will be making immigration applications to which the fee waiver policy applies; if relying on this to pursue their human rights claim, they should not be impeded from pursuing any subsequent appeal solely by the prohibitive costs of doing this.

3 Local authorities would also support an exemption based on the Home Office fee waiver policy for out of-country appellants. When Part 4 of the Immigration Act 2016 is implemented, this could result in the majority of non-asylum human rights claimants only being permitted to appeal from outside of the UK. This would be following a person s return or removal from the UK. If a person, who qualified for a fee waiver to make their application, believes that they will not be able to pursue an appeal from out of country due to the prohibitive fees (notwithstanding the practical difficulties of doing so), then they may be less likely to take up voluntary return. This leaves the local authority in difficulty, as even though there may be no duty to provide support under the new statutory framework set out in Schedule 12 of the Immigration Act 2016, when presented with a destitute child in its area and the associated safeguarding risks, the local authority will be required to respond in some way due to safeguarding risks associated with this. Extending the fee waiver exemption to out of country appellants who have made applications whilst in the UK would therefore be consistent with the overarching policy aim of the Immigration Acts of 2014 and 2016 to encourage people with no immigration permission to take up voluntary return. Q3 & Q6: Fee exemptions Local authorities would support the extension of the fee exemptions to all stages of the appeal process. However, The proposed exemptions do not adequately cover those who are in receipt of accommodation and/or financial support from a local authority because they are destitute (i) Local authority support for families We welcome the proposal to extend the exemption to parents, or those with parental responsibility for a child receiving support from a local authority under section 17 Children Act 1989, although we note, as acknowledged in the Equality Statement, that this is a clarification of current practice. When the order is made, this should also encompass the legislation that applies in the devolved administrations, i.e.: Wales - Section 37 of the Social Services and Well-being (Wales) Act 2014 Scotland - Section 22 of the Children (Scotland) Act 1995 Northern Ireland - Article 18 of the Children (Northern Ireland) Order 1995 Should section 68 of the Immigration Act 2016 be implemented, which imposes a new statutory scheme for local authorities to provide support to destitute families with no immigration status, then the exemption would need to be extended to children and parents in receipt of support under paragraph 10A of Schedule 3 Nationality, Immigration and Asylum Act (ii) Local authority support for adults with care and support needs Local authorities provide accommodation and financial assistance to adults with care and support needs, or in order to reduce readmission to hospital under the Mental Health Act. The consultation does not propose to exempt this group from paying an appeal fee.

4 Accommodation and financial assistance may be provided under the following legislation: England Sections 18 & 19 of the Care Act 2014 & section 117 of the Mental Health Act 1983 Wales - Section 35 of the Social Services and Well-being (Wales) Act 2014 Scotland - Sections 12 & 13A of the Social Work (Scotland) Act 1968 Northern Ireland - Articles 7 & 15 The Health and Personal Social Services (Northern Ireland) Order 1972 In England, support is only provided to adults who have eligible care and support needs arising from, or related to a physical or mental health illness or condition, or where supported accommodation needs to be provided following a period of treatment under the Mental Health Act This client group is particularly vulnerable, having needs above destitution, which can result in challenges and difficulties pursuing immigration applications and appeals. Delays in a person being able to regularise their stay will lead to the local authority incurring costs as time spent in receipt of support increases. (iii) Local authority support for looked after children and care leavers Local authorities welcome the exemption of children who are looked after by a local authority under section 20 of the Children Act 1989, as this will cover looked after migrant children who are not pursuing asylum claims, although again this would need to cover applicable legislation in the devolved administrations. However we propose that this exemption should be extended to former looked after children who remain accommodated and financially supported by the local authority under the leaving care provisions of the applicable social care legislation: England Sections 23C, 24A & 24B of the Children Act 1989 Wales - Section of the Social Services and Well-being (Wales) Act 2014 Scotland - Section 29 & 30 of the Children (Scotland) Act 1995 Northern Ireland - Articles 35 & 36 of the Children (Northern Ireland) Order 1995 A lack of exemption would mean that it may fall to the local authority to fund the appeal fee for care leavers who are extending their leave to remain (when granted on non-asylum human rights grounds) or are making an application following a period of overstaying which, on refusal, attracts a right of appeal. Should section 68 of the Immigration Act 2016 be implemented, which imposes a new statutory scheme for local authorities to provide support to care leavers with no immigration status, then the exemption would need to be extended to young people in receipt of support under paragraph 10B of Schedule 3 Nationality, Immigration and Asylum Act 2002.

5 Q7 Data - impact on people with protected characteristics. Data from 35 local authorities* taken at the end of 2015 shows that: Local authorities were supporting 289 adults with care and support needs arising or related to a physical or mental impairment or illness. 217 of these adults have immigration status recorded by the Home Office as illegal entrant; visa overstayers, or status unknown and are not recorded as having current asylum applications pending. The combined cost to the local authorities concerned is 88,936/ week - 4,624,716/ year and the average time spent in receipt of support was 1194 days. The adults will be receiving support due to a physical or mental health condition or illness. 75% would be required to make or be in the process of making applications in order to resolve their irregular immigration status, and therefore may be liable to pay the proposed appeal fees. *All data provided in this response has been obtained from NRPF Connect database used by local authorities on a voluntary basis to share information with the Home Office and is indicative of national trends. NRPF Network 3 June 2016 Islington Town Hall, Upper Street, N1 2UD Tel: Web: nrpf@islington.gov.uk