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Nationality, Immigration and Asylum Act 2002

Status:

This is the original version (as it was originally enacted).

Part 3Other Support and Assistance

43Asylum-seeker: form of support

(1)The Secretary of State may make an order restricting the application of section 96(1)(b) of the Immigration and Asylum Act 1999 (c. 33) (support for asylum-seeker: essential living needs)—

(a)in all circumstances, to cases in which support is being provided under section 96(1)(a) (accommodation), or

(b)in specified circumstances only, to cases in which support is being provided under section 96(1)(a).

(2)An order under subsection (1)(b) may, in particular, make provision by reference to—

(a)location;

(b)the date of an application.

(3)An order under subsection (1) may include transitional provision.

(4)An order under subsection (1)—

(a)must be made by statutory instrument, and

(b)may not be made unless a draft has been laid before and approved by resolution of each House of Parliament.

44Destitute asylum-seeker

(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.

45Section 44: supplemental

(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)The 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.

46Section 44: supplemental: Scotland and Northern Ireland

(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.

(4)The following shall be substituted for section 7(4) of the Mental Health (Scotland) Act 1984 (c. 36)(functions of local authorities – 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.

(5)The following shall be substituted for section 8(5) of that Act (provision of after-care services – 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.

(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 the Department.

47Asylum-seeker: family with children

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)—

122Family 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.

48Young asylum-seeker

The following provisions of the Immigration and Asylum Act 1999 (c. 33) shall have effect as if the definition of asylum-seeker in section 94(1) of that Act did not exclude persons who are under 18—

(a)section 110 (local authority expenditure on asylum-seekers), and

(b)section 111 (grants to voluntary organisations).

49Failed asylum-seeker

(1)The following shall be added at the end of section 4 of the Immigration and Asylum Act 1999 (accommodation for person on temporary admission or release)—

(2)The Secretary of State may provide, or arrange for the provision of, facilities for the accommodation of a person if—

(a)he was (but is no longer) an asylum-seeker, and

(b)his claim for asylum was rejected.

(3)The Secretary of State may provide, or arrange for the provision of, facilities for the accommodation of a dependant of a person for whom facilities may be provided under subsection (2).

(4)The following expressions have the same meaning in this section as in Part VI of this Act (as defined in section 94)—

(a)asylum-seeker,

(b)claim for asylum, and

(c)dependant.

(2)The present section 4 of the Immigration and Asylum Act 1999 (c. 33) becomes subsection (1) (and its heading becomes “Accommodation”).

50Conditions of support

(1)The following shall be inserted after section 95(9) of the Immigration and Asylum Act 1999 (support for asylum-seeker: condition)—

(9A)A condition imposed under subsection (9) may, in particular, relate to—

(a)any matter relating to the use of the support provided, or

(b)compliance with a restriction imposed under paragraph 21 of Schedule 2 to the 1971 Act (temporary admission or release from detention) or paragraph 2 or 5 of Schedule 3 to that Act (restriction pending deportation).

(2)The following shall be inserted after paragraph 6 of Schedule 9 to that Act (asylum-seeker: interim support)—

6AThe regulations may, in particular, require support to be provided subject to a condition of compliance with any restriction imposed under paragraph 21 of Schedule 2 to the 1971 Act (temporary admission or release from detention) or paragraph 2 or 5 of Schedule 3 to that Act (restriction pending deportation).

51Choice of form of support

(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).

52Back-dating of benefit for refugee

In section 123(7) of the Immigration and Asylum Act 1999 (c. 33) (back-dating of benefit for refugee: deduction for support received) after “under this Part” there shall be inserted “or Part 2 of the Nationality, Immigration and Asylum Act 2002 (accommodation centres)”.

53Asylum-seeker: appeal against refusal to support

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

103Appeals: 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.

103AAppeals: 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.

103BAppeals: 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.

54Withholding and withdrawal of support

Schedule 3 (which makes provision for support to be withheld or withdrawn in certain circumstances) shall have effect.

55Late 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)sections 4, 95 and 98 of the Immigration and Asylum Act 1999 (c. 33) (support for asylum-seeker, &c.), and

(b)sections 17 and 24 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 (c. 33) or section 17 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 24 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 18.

(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 103 of the Immigration and Asylum Act 1999 (appeals).

(11)This section does not prevent a person’s compliance with a residence restriction imposed in reliance on section 70 (induction).

56Provision of support by local authority

(1)Section 99 of the Immigration and Asylum Act 1999 (provision of support by local authority) shall be amended as follows.

(2)In subsection (1)—

(a)after “local authority” insert “or Northern Ireland authority”, and

(b)at the end add “or 98”.

(3)For subsections (2) and (3) substitute—

(2)Support may be provided by an authority in accordance with arrangements made with the authority or with another person.

(3)Support may be provided by an authority in accordance with arrangements made under section 95 only in one or more of the ways mentioned in section 96(1) and (2).

(4)In subsection (4)—

(a)for “A local authority” substitute “An authority”, and

(b)at the end add “or 98”.

(5)In subsection (5)—

(a)for “a local authority” substitute “an authority”, and

(b)in paragraph (b) for “bodies who are not local authorities” substitute “other bodies”.

57Application for support: false or incomplete information

At the end of paragraph 12(c) of Schedule 8 to the Immigration and Asylum Act 1999 (c. 33) (asylum-seeker support: procedure: disregarding of application) there shall be inserted “(which may, in particular, provide for an application not to be entertained where the Secretary of State is not satisfied that the information provided is complete or accurate or that the applicant is co-operating with enquiries under paragraph (d))”.

58Voluntary departure from United Kingdom

(1)A person is a “voluntary leaver” for the purposes of this section if—

(a)he is not a British citizen or an EEA national,

(b)he leaves the United Kingdom for a place where he hopes to take up permanent residence (his “new place of residence”), and

(c)the Secretary of State thinks that it is in the person’s interest to leave the United Kingdom and that the person wishes to leave.

(2)The Secretary of State may make arrangements to—

(a)assist voluntary leavers;

(b)assist individuals to decide whether to become voluntary leavers.

(3)The Secretary of State may, in particular, make payments (whether to voluntary leavers or to organisations providing services for them) which relate to—

(a)travelling and other expenses incurred by or on behalf of a voluntary leaver, or a member of his family or household, in leaving the United Kingdom;

(b)expenses incurred by or on behalf of a voluntary leaver, or a member of his family or household, on or shortly after arrival in his new place of residence;

(c)the provision of services designed to assist a voluntary leaver, or a member of his family or household, to settle in his new place of residence;

(d)expenses in connection with a journey undertaken by a person (with or without his family or household) to prepare for, or to assess the possibility of, his becoming a voluntary leaver.

(4)In subsection (1)(a) “EEA national” means a national of a State which is a contracting party to the Agreement on the European Economic Area signed at Oporto on 2nd May 1992 (as it has effect from time to time).

(5)The following provisions of the Immigration Act 1971 (c. 77) shall cease to have effect—

(a)section 29 (contributions to expenses of persons returning abroad), and

(b)section 31(d) (expenses).

59International projects

(1)The Secretary of State may participate in a project which is designed to—

(a)reduce migration,

(b)assist or ensure the return of migrants,

(c)facilitate co-operation between States in matters relating to migration,

(d)conduct or consider research about migration, or

(e)arrange or assist the settlement of migrants (whether in the United Kingdom or elsewhere).

(2)In particular, the Secretary of State may—

(a)provide financial support to an international organisation which arranges or participates in a project of a kind described in subsection (1);

(b)provide financial support to an organisation in the United Kingdom or another country which arranges or participates in a project of that kind;

(c)provide or arrange for the provision of financial or other assistance to a migrant who participates in a project of that kind;

(d)participate in financial or other arrangements which are agreed between Her Majesty’s Government and the government of one or more other countries and which are or form part of a project of that kind.

(3)In this section—

(a)“migrant” means a person who leaves the country where he lives hoping to settle in another country (whether or not he is a refugee within the meaning of any international Convention), and

(b)“migration” shall be construed accordingly.

(4)Subsection (1) does not—

(a)confer a power to remove a person from the United Kingdom, or

(b)affect a person’s right to enter or remain in the United Kingdom.

60Northern Ireland authorities

(1)In section 110(9) of the Immigration and Asylum Act 1999 (c. 33) (support: payment to local authority: Northern Ireland authority) after paragraph (b) there shall be added— ; or

(c)a Health and Social Services trust established under the Health and Personal Social Services (Northern Ireland) Order 1991 (S.I. 1991/194 (N.I. 1).

(2)In section 94(1) of that Act (support: interpretation) after the definition of “local authority” there shall be inserted—

“Northern Ireland authority” has the meaning given by section 110(9).

61Repeal of spent provisions

The following provisions of the Immigration and Asylum Act 1999 shall cease to have effect—

(a)section 96(4) to (6) (which relate to a provision about support for asylum-seekers which has been repealed by order), and

(b)section 166(4)(e) (order under section 96(5): procedure).

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