Nationality, Immigration and Asylum Act 2002 Explanatory Notes

Section 54 and Schedule 3: Withholding and withdrawal of support

135.This section introduces Schedule 3, which restricts the type of support and accommodation that is provided to those who are European Union (EU)/European Economic Area (EEA) citizens; those with refugee status in other EU/EEA states; failed asylum seekers and persons unlawfully present in the UK.

136.Paragraph 1 (1) (a) – (m) of Schedule 3 lists the various pieces of legislation in England and Wales, Scotland and Northern Ireland under which support and/or accommodation to individuals in these categories will be restricted.

137.Sub-paragraph (2) provides that any powers or duties imposed by the legislation in Paragraph 1 may not be exercised in respect of any person to whom this applies, regardless of whether that person has received support or not in the past.

138.Paragraph 2 provides a safety net to children under 18. Children will remain eligible for support or assistance, as will adults provided for in regulations as eligible to receive it. Further, this paragraph allows the Secretary of State, by regulation, to extend the categories of those persons eligible for support.

139.Paragraph 3 addresses our international obligations. Nothing prevents local authorities or the National Asylum Support Service (NASS) exercising powers or performing duties to the extent that it is necessary to avoid breaching any European Convention on Human Rights (ECHR) right or a person’s rights under the European Community treaties.

140.Paragraph 4 details the first class of people ineligible for support. If an individual has refugee status in another EEA Member State, or is the dependant of a person who is in the UK and has refugee status in another EEA Member State, they are ineligible for support.

141.Paragraph 5 makes citizens of other EEA member states ineligible for support if they are not present in the UK exercising Community Treaty rights or they are residing in the UK but Community Treaties forbid the person being supported from public funds.

142.Paragraph 6 makes failed asylum seekers ineligible for further support if they have failed to co-operate with removal directions issued in respect of them.

143.Paragraph 7 provides that persons who are unlawfully present in the UK, and who are not asylum-seekers, are ineligible for support.

144.Paragraph 8 allows the Secretary of State to make arrangements, by regulation, for citizens of other EU/EEA states and those with refugee status in other EU/EEA states to be provided with a journey home.

145.Paragraph 9 allows the Secretary of State to make arrangements, by regulation, for persons to be provided with accommodation until the time of their journey home. Only persons with dependent children will have accommodation arranged. Paragraph 10 makes the same arrangement for persons unlawfully in the UK. Again, only persons with dependent children will be provided with accommodation as long as they have not failed to co-operate with removal directions issued in respect of them.

146.Paragraph 11 provides further powers in relation to the regulation- making power.

147.Paragraph 12 enables provision to be made in regulation in respect of persons who refuse the offer of a journey home or fail to travel or co-operate with efforts being made to enable them to leave the UK. It allows regulations to be made that ensure only new arrangements enabling a person to leave can be made, but no additional accommodation can be provided. Sub-paragraph (2) allows for regulations to make exception for people who are unable to travel for a defined acceptable reason, and who can provide the required proof of the reason.

148.Sub-paragraph (1) of paragraph 13 creates a new criminal offence. It will be an offence for a person to accept temporary accommodation and/or travel assistance to another country then return to the UK and make another request for an arrangement to be made under paragraph 8, 9, or 10, i.e. travel assistance or temporary accommodation. Sub paragraph (2) creates an additional criminal offence. It will be an offence for a person who has previously requested arrangements be made for him to fail to mention this in any future application. Both offences are punishable on conviction by imprisonment for a term not exceeding six months.

149.Paragraph 14 places an obligation upon local authorities to inform the Secretary of State of any person they suspect or know to be unlawfully present in the UK or a failed asylum seeker.

150.Paragraph 15 allows the Secretary of State to amend the Schedule by order so as to remove or add categories of persons ineligible for support, to add or remove other statutes to the list of those which might provide support or assistance, and to add, amend or remove any limitations or exceptions to the list.

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