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Asylum and Immigration (Treatment of Claimants, etc.) Act 2004

Treatment of Claimants

Section 8: Claimant’s credibility

37.Section 8 sets out various behaviours which a deciding authority is required to take account of (as being damaging to credibility) when deciding whether to believe a statement made by or on behalf of a person making an asylum or human rights claim. A “deciding authority” is an immigration officer, the Secretary of State, the Asylum and Immigration Tribunal (or an adjudicator and the Immigration Appeal Tribunal until such time as the Asylum and Immigration Tribunal is established) and the Special Immigration Appeals Commission.

38.Subsection (2) provides that behaviour which a deciding authority thinks:

a)

is designed or likely to conceal information,

b)

is designed or likely to mislead, or

c)

is designed or likely to obstruct or delay the handling or resolution of the claim or the taking of a decision in relation to the claimant,

is behaviour which damages the claimant’s credibility and should be taken into account when determining whether to believe a statement made by a person who makes an asylum or human rights claim.

39.Subsection (3) provides that various behaviours relating to the non production of passports (without reasonable explanation), the production of false passports as if they were valid, and the failure to answer questions (without reasonable explanation), will be treated as behaviours which damage credibility.

40.Subsection (4) similarly provides that a person’s failure to take a reasonable opportunity to make an asylum or human right claim whilst in a safe third country will be treated as behaviour that damages his credibility. For the purposes of this section a “safe country” means a country to which Part 2 of Schedule 3 applies.

41.Subsections (5) and (6) provide that it is also behaviour which damages credibility where a person makes an asylum or human rights claim only after they have been notified of an immigration decision or extradition proceedings and that claim does not rely wholly on matters arising after the notification; or where the claim is made after a person has been arrested under an immigration provision and there was a reasonable opportunity to make the claim before arrest and the claim does not rely wholly on matters arising after the arrest. Subsection (7) sets out the meaning of an “immigration decision” and an “immigration provision”.

42.Subsection (12) provides that section 8 does not prevent a deciding authority from determining not to believe a statement on the grounds of behaviour to which the section does not apply.

Section 9: Failed asylum seekers: withdrawal of support

43.Section 9 creates a fifth class of person (failed asylum seeker with family) who will cease to be eligible for support under Paragraph 1 of Schedule 3 to the Nationality, Immigration and Asylum Act 2002 (withholding and withdrawal of support). The section adds a new paragraph, Paragraph 7A, to the Schedule.

44.Failed asylum seekers with dependent children receive asylum support until such time as they leave the United Kingdom or fail to comply with a removal direction if sooner. However, under this provision, if the Secretary of State certifies that, in his opinion , such a person has failed without reasonable excuse to take reasonable steps to leave the United Kingdom voluntarily or place himself in a position in which he is able to leave the United Kingdom voluntarily (by, for example, co operating with steps taken to obtain a travel document on his behalf) then asylum support for the family will cease. The family is also rendered ineligible for various other types of support or assistance, although the children in the family may still be supported by, for example, the local authority. There is a right of appeal to the Asylum Support Adjudicator under section 103 of the Immigration and Asylum Act 1999 against the Secretary of State’s certification.

Section 10 : Failed asylum seekers: accommodation

45.Section 10 amends section 4 of the Immigration and Asylum Act 1999 (as amended by section 49 of the Nationality, Immigration and Asylum Act 2002) which gives the Secretary of State power to provide, or arrange for the provision of accommodation to certain categories of person including failed asylum seekers. The amendments make provision for the criteria to be used in determining when accommodation should be provided to be set out in regulations (until now, the criteria have been set out in the Secretary of State’s policy bulletins). The amendments also permit the continuation of the provision of accommodation to be made conditional upon the performance of or participation in community activities.

46.Subsection (1) adds subsections (5), (6), (7), (8) and (9) to section 4 of the 1999 Act. The new subsection (5) provides for the Secretary of State to make regulations specifying the criteria to be used when determining whether or not the Secretary of State should provide, or continue to provide, accommodation to a person under section 4.

47.Under new subsection (6) of section 4 the regulations may provide for the continuation of the provision of accommodation to be conditional upon the performance of or participation in community activities or to be subject to other conditions.

48.New subsections (7)-(9) of section 4 set out further details on the arrangements in relation to community activities.

49.Subsection (2) provides that the regulations made pursuant to new subsection 5 of section 4 will be subject to the affirmative resolution procedure,

50.Subsections (3) to (5) amend section 103 of the 1999 Act so as to provide for a right of appeal to the Asylum Support Adjudicator from decisions of the Secretary of State not to provide accommodation to a person or not to continue to provide accommodation to a person under section 4 of the 1999 Act. Section 103 of the 1999 Act has been amended by section 53 of the 2002 Act but that provision has not yet been brought into force. Subsection (3) deals with the position before section 53 comes into force; subsection (4) deals with the position after it comes into force.

51.Subsection (7) makes clear that the regulations to be made under section 4(5)(b) of the 1999 Act will apply equally to those persons receiving support at the time the regulations come into force as those receiving support after the regulations come into force.

Section 11 : Accommodation for asylum seekers: local connection

52.Subsection (1) amends section 199 of the Housing Act 1996, such that asylum seekers who are provided with accommodation under section 95 of the Immigration and Asylum Act 1999 establish a local connection (for the purposes of Part 7 of the Housing Act 1996) with the district of the local housing authority where the accommodation is provided. Where accommodation is provided in more than one district, a local connection is established only with the district where accommodation was most recently provided. However, this provision does not apply where accommodation is provided in an accommodation centre. The Housing Act 1996 extends only to England and Wales.

53.Subsection (2) provides that section 193 of the Housing Act 1996 does not apply in respect of homeless applicants who have formerly been provided with accommodation under section 95 of the 1999 Act in a place in Scotland, and who do not have a local connection with a district in England, Wales or Scotland.

54.Subsection (3) provides that, in cases where the section 193 duty does not apply, local housing authorities in England and Wales may secure that accommodation is available for occupation by the person for a period that will give him a reasonable opportunity of securing accommodation for himself, and may provide the person (or secure that he is provided with) advice and assistance in any attempts he may make to secure that accommodation becomes available for his occupation.

Section 12: Refugee: backdating of benefits

55.This section abolishes the entitlement to backpayments of income support, housing benefit and council tax benefit for those who are recorded as refugees.

56.Asylum seekers are not eligible for mainstream benefits by virtue of section 115 of the Immigration and Asylum Act 1999. Where relevant, they may be supported by the Secretary of State under section 95 of the 1999 Act. Regulations have been made under section 123 in relation to backpayments of income support, housing benefit and council tax benefit.

57.Subsection (1) repeals section 123 of the 1999 Act which gives the Secretary of State power to make regulations permitting those who are recorded as refugees to claim backpayments of benefits including income support, housing benefit and council tax benefit.

58.Subsection (2) revokes the regulations made under the power of section 123 of the 1999 Act to make backpayments of income support, housing benefit and council tax benefit to refugees. These regulations would lapse in any event on repeal of section 123 of the 1999 Act, but for the sake of clarity and certainty the legislation confirms that these regulations cease to have effect.

59.Subsection (3) revokes the regulations which preserve, for transitional purposes, an earlier backpayments scheme made under section 11(2) of the Asylum and Immigration Act 1996.

60.Subsection (4) confirms that on commencing the provision, it may be applied to those who have outstanding asylum claims. Backpayments will therefore cease for all those recorded as refugees after a specified date, irrespective of when they made their claim for asylum.

Section 13 : Integration loan for refugees

61.Section 13 makes provision for the Secretary of State to make regulations enabling him to make loans to refugees. For these purposes a refugee is a person who is granted refugee status and given indefinite leave to enter or remain in the United Kingdom. It is intended that these loans will be made for integration purposes and will be known as refugee integration loans.

62.The regulations will prevent a person from receiving a loan if s/he is under 18, is insolvent (within the meaning given by the regulations) or has already received a refugee integration loan.

63.The regulations will also include:

  • matters which the Secretary of State must take into account when deciding whether to make a loan and in particular may relate to a person's income or assets; likely ability to repay a loan; or the length of time since a person was recorded as a refugee

  • provision for the Secretary of State to specify the minimum and/or maximum amount of a loan

  • provision about repayment of the loan which may include interest payable and repayment by deduction from a Social Security benefit

  • provision for the Secretary of State to attach conditions to a loan which might include conditions about the use of the loan

  • provision about how an application is to be made and what information must be provided

64.The regulations may also:

  • make provision about steps that the Secretary of State might take to establish an applicant's ability to repay

  • provide for a loan to be made jointly

  • confer a discretion on the Secretary of State

65.Regulations made under this section are subject to the affirmative procedure.

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