Benefits to be withdrawn from EEA jobseekers
In January 2014, the Government introduced a number of measures aimed at restricting EEA migrants’ access to income-based JSA. A key change was the introduction of a statutory presumption that entitlement to income-based JSA (‘JSA(IB)’) would be limited to a period of three months (or six months for EEA nationals with retained worker status) unless the jobseeker could pass a Genuine Prospect of Work (GPoW) assessment.
On 9 February 2015, the DWP published DMG Memo 2/15 – Extending GPoW Assessments to Stock EEA Nationals, which advises that the GPoW assessment will be extended to all remaining EEA nationals whose entitlement to JSA(IB) started prior to 1 January 2014. The Memo describes cases that fall within this group as ‘stock cases’.
The Memo states that the DWP will identify those EEA nationals whose entitlement to income-based JSA began before January 2014 (the stock cases), and advise those claimants that a review of their right to reside in the UK and their continued entitlement to income-based JSA will be undertaken in three months’ time at a GPoW assessment interview.
At the GPoW interview, the EEA national will be asked to “show what their right to reside is”. In other words, the DWP will first establish whether the claimant’s right to reside is based on being a jobseeker or if it is on some other basis (such as being a family member of an EEA national, a primary carer of an EEA child in education or by having a permanent right to reside). If the claimant does seek to rely on their right to reside as a jobseeker only, they will be asked to provide ‘compelling evidence’ that they have a genuine chance of being engaged in the near future.
According to the guidance, the three month period can be extended if there is “compelling evidence” that the claimant has a definite job offer, or is awaiting the result of a job interview, or the claimant has relocated to a new area where they are likely to obtain work (paras 13-14).
If the EEA jobseeker is unable to satisfy the GPoW assessment, then they will lose the right to reside as a ‘qualified person’ under the EEA 2006 Regulations and will no longer be entitled to receive income-based JSA. They will also lose entitlement to Housing Benefit. If the claimant has dependant children, they will also cease to be entitled to Child Benefit and Child Tax Credits.
The first wave of Genuine Prospect of Work interviews will take place from 9 May 2015 onwards.
The first wave of Genuine Prospect of Work interviews will take place from 9 May 2015 onwards. The Memo states that in areas where there are “high volumes” that “a phased approached” will be taken.
Note that the three-month period will apply both to jobseekers and those who have retained worker status within this group of ‘stock cases’. The justification given in the Memo is that the “relevant period” in the EEA 2006 Regulations is not being applied to stock cases “as all claimants will already have had much longer than this period by the time of their GPoW assessment interview” (para 9).
In Touchbase (DWP news for advisers and intermediaries), published on 16 February 2015, the DWP confirms that it has begun writing to this group of EEA nationals and, due to the numbers involved, the letters will be issued as part of a rolling programme over a number of weeks:
One month before their income-based JSA claim is due to stop, the claimant will receive a second letter reminding them about the change and inviting them to attend an assessment interview.
At the interview, they will be given the chance to show that they have a genuine prospect of work or, where appropriate, an alternative right to reside in the UK. Those who have an alternative qualifying right to reside will continue to receive income-based JSA.
If the claimant can provide compelling evidence that they have a genuine prospect of work, a short extension to income-based JSA might be considered. If not, their income-based JSA claim will stop.
DWP staff will seek to support any vulnerable people who might be affected by the change and will draw on specialised help where needed.
It is unclear exactly how many EEA jobseekers will be affected by this new guidance as the UK’s benefit payment systems do not systematically record the nationality of benefit claimants (see Statistics on migrants and benefits: House of Commons Library, Standard Note SN06955). However, according to HB Bulletin G2/2015, published on 17 February 2015:
DWP will be notifying approximately 8,800 claimants that their JSA(IB) is due to cease in three months time, unless they can show a genuine prospect of work or prove an alternative right to reside.
Those EEA migrants in this group who cannot find work in the next three months face a stark choice – between remaining in the UK to face falling into destitution, or returning to their Member State of origin.
Some EEA migrants will approach their local authority for assistance. This could be problematic given that Schedule 3 of the Nationality Immigration and Asylum Act 2002 excludes EEA nationals from support provided under section 17 Children Act and section 21 National Assistance Act, save where its denial would amount to a breach of their human rights or the exercise of their EU rights.
The circumstances when a local authority would be required to provide support to EEA jobseekers affected by the changes to the benefit rules have been described in the No Recourse to Public Funds (NRPF) Network in its response to the Social Security Advisory Committee Consultation on the Housing Benefit (Habitual Residence) Amendment Regulations 2014, where it states that EEA jobseekers fall into two distinct groups:
(1) Newly arrived jobseekers who fail to find work and use up/have no funds to support themselves and any dependants.
Local authorities would consider whether the ‘jobseeker’ needs to be in the UK in order to exercise their right to reside in this capacity, and may offer assistance returning to their country of origin should they conclude this not to be the case. Such an assessment would require staff time and resources in order to undertake appropriate research. Temporary support may be provided pending the outcome of this assessment, particularly for families, when the service user is found to be destitute, and therefore there is a child in need.
(2) EEA nationals who are already present in the UK and are determined to be ‘jobseekers’ by the DWP when they claim JSA(IB) or housing benefit; they may have worked previously.
This scenario would require more investigation as the local authority would need to establish whether the EEA national has the right to reside in any capacity. They would need to check whether the EEA national has retained worker status, has acquired the right of permanent residence and also consider whether they have a right to reside on the basis of there being a child of a former worker in the family group. Again, local authorities would consider whether the ‘jobseeker’ needs to be in the UK in order to exercise their right to reside in this capacity, should they conclude that they are not a qualified person on any other basis. This type of assessment would take up staff time and resources, with complex matters referred to in house legal teams. This can therefore delay the assessment process and a local authority may provide temporary support whilst the assessment is pending.
In both instances, should it be established that there is no necessity for support in order to prevent a breach of a service user’s human rights or rights under European Community treaties, the local authority may offer assistance to enable return to their country of origin.
D v UK exception remains exceptional in medical treatment cases under Article 3
Ors v SSHD [2015] EWCA Civ 40 – read judgment
The Court of Appeal has confirmed that foreign nationals may be removed from the UK even where their lives will be drastically shortened due to a lack of healthcare in their home states. Removal in those circumstances does not breach Articles 3 or 8 ECHR except in the most exceptional cases.
The appellants were foreign nationals suffering from very serious medical conditions (five from end-stage kidney disease (ESKD) and one from an advanced stage of HIV infection). They were all receiving effective treatment here in the UK. All were at a high risk of very early death if returned to their home states, where the treatment they needed was unaffordable or simply unavailable. The Secretary of State nevertheless decided to remove them, and the Upper Tribunal dismissed their appeals. They appealed to the Court of Appeal on the grounds that removal would breach their rights under Articles 3 and 8 of the ECHR.
Laws LJ began by identifying the “paradigm case” of a breach of each Article, and then considered whether the present situations were sufficiently close to the paradigm to justify extending those Articles to cover them. None of them were.
Article 3
The paradigm case of a breach of Article 3 is “an intentional act which constitutes torture or inhuman or degrading treatment or punishment”. A risk of death caused by a naturally occurring illness, combined with a lack of sufficient resources to deal with it in the receiving country, does not fall within that paradigm.
The European Court of Human Rights (ECtHR) has allowed a limited extension to Article 3 in exceptional circumstances. In D v UK (1997) 24 EHRR 423, the applicant suffered from AIDS which was already terminal, and was receiving end-of-life care in the UK. The Court held, in view of the exceptionally poor conditions which he would face if returned to his home state of St Kitts, and bearing in mind the critical stage of his illness, that to remove him would amount to a violation of Article 3.
However the House of Lords in N v SSHD [2005] UKHL 31 – affirmed by the ECtHR in N v UK (2008) 47 EHRR 39 – made clear that this exception is subject to a very high threshold. D’s condition was already terminal; as Lord Nicholls put it, “there was no question of imposing any such obligation [to provide medical care] on the United Kingdom. D was dying, and beyond the reach of medical treatment then available” (paragraph 15). The key feature in D was not that removal would cause or accelerate his death – the right to life being the province of Article 2, not Article 3 – but that it would lead to him dying in inhuman and degrading conditions.
None of the appellants fell within this category. Although they were likely to die quickly once treatment stopped – the five appellants suffering from ESKD would have only about 2-3 weeks to live without dialysis – they were not dying yet. Article 3, even in light of the D exception, did not impose an obligation on the UK to continue to provide medical treatment indefinitely.
That conclusion was not affected by any of the more recent cases relied on by the appellants. Each of those cases, said Laws LJ, had particular features justifying a departure from the Article 3 paradigm. In Sufi v UK (2012) 54 EHRR 9, the crisis in the applicant’s home state of Somalia was predominantly due to the deliberate actions of the parties to the conflict. Similarly in MSS v Belgium and Greece (2011) 53 EHRR 2, Greece was found to be responsible for the inhuman conditions to which the applicant asylum seeker would be subjected if he was returned there by Belgium. Although that is not quite the paradigm case of an intentional act by the receiving state, the Court tends to attach particular importance to the treatment of asylum seekers; Tarakhel v Switzerland (Application No. 29217/12) was another example. The situations are therefore different and, as Laws LJ made clear at paragraph 62:
“the fact that there are other exceptions unlike D or N does not touch cases – such as these – where the claimant’s appeal is to the very considerations which D and N address”.
Various further arguments about Article 3 did not help the appellants. Evidence of changed circumstances – a potential transplant for GM and evidence of increased risk to KK in the DRC – would have to be raised in fresh claims before the Secretary of State. The fact that KK had always been lawfully resident in the UK could not exempt him from the rigours of the D exception, and the Upper Tribunal’s approach to the facts in his case disclosed no error of law.
Article 8
The failure of the Article 3 claims was not fatal to those under Article 8. Article 8 concerns different paradigms, the one identified as relevant in this case being the capacity to form and enjoy relationships. However, this also means that it is not enough to rely on the same facts as those which failed to bring the case within the Article 3 paradigm. Something more is needed.
In three of the cases, GS, EO and BA, the Court of Appeal refused even to consider the Article 8 claims because the appellants had not pursued them before the Upper Tribunal. Laws LJ took the view that the Court of Appeal lacked jurisdiction to consider a point which was not before the Upper Tribunal, except where it was obvious in the sense of having a strong prospect of success. That was not the case here. Underhill LJ, with whom Sullivan LJ agreed, preferred to exclude those arguments as a matter of discretion. He noted that all three appellants appeared to have made a considered decision not to rely on them before the Tribunal, even though Article 8 had been a live issue earlier in the proceedings. He might have considered allowing Article 8 points to be argued if any of the appellants had a strong case on that ground, but none of them did.
In GM’s case, the Secretary of State accepted that it was arguable that the Upper Tribunal had not adequately considered the Article 8 claim and agreed that it should be remitted for reconsideration.
As for KK and PL, neither could show any additional factual element sufficient to bring them within the Article 8 paradigm. KK’s family life was “overwhelmingly in the DRC” and his Article 8 claim was, in reality, based solely on the medical treatment which he receives here. Underhill LJ added that the Upper Tribunal had found that he would receive proper treatment in the DRC, so his claim could not get off the ground in any event. KK challenged the Tribunal’s approach to the facts, but the Court found no error of law.
Laws LJ said simply that there were no factors in PL’s case which might give rise to a claim under Article 8 when there was none under Article 3. Underhill LJ pointed out that PL had been in the UK illegally for almost all of his stay, had made friends knowing that he had no right to remain here, and had no family ties in the UK.
All of the appeals therefore failed, except for GM’s Article 8 appeal which will go back to the Upper Tribunal. GM has always been in the UK lawfully and, although there is little information in the judgment about his private or family life here, the fact that he has a friend in the UK who is willing to give him a kidney may offer a glimmer of hope. Laws LJ also hinted that GM may wish to make a fresh Article 3 claim on the basis of that possible transplant. However, in the light of the restrictive approach taken by the Court of Appeal, it seems unlikely that that will be enough to bring him within the D exception. As for the other claims, permission to appeal was refused by the Court of Appeal but may now be sought from the Supreme Court.
Home Office changing the process for making further submissions on asylum and human rights cases
Date of Publication:
15 January 2015
Summary:
UKVI announces that from 26 January 2015 all further submissions must be submitted in person in Liverpool
Right to Remain and Asylum Support Housing Advice (ASHA) have both reported that the Home Office has announced a change to the further submissions process. That is, new asylum claims by those who have exhausted their appeals rights but who have not left the UK.
A letter by UK Visas and Immigration to National Asylum Stakeholder Forum (NASF) members announced that from 26 January 2015 all further submissions must be submitted in person at the Further Submission Unit (FSU) in Liverpool.
The letter was published by Right to Remain here (as a scanned PDF) and we’ve reproduced it in full below.
The change will have a major impact on its clients as the cost of the journey may prove to be an insurmountable barrier for many.
The Home Office UK Visas and Immigration letter to NASF members follows:
UK Visas & Immigration
Mike Wells CBE
Chief Operating Officer
UK Visas and Immigration
1st Floor Seacole Building
2 Marsham Street
London SW1P 4DF
www.homeoffice.gov.uk
By email
13 January 2015
Dear NASF Members
I am writing to you to let you know that from 26th January 2015 we are changing the process for making further submissions on asylum and human rights cases (i.e. new asylum claims by those who are appeals rights exhausted but who have not left the UK). We are also centralising management of post Appeal Rights Exhausted asylum cases into the Complex Casework Directorate in Liverpool.
As you will know, we currently have two processes for lodging further submissions – one for asylum claims lodged prior to 5 March 2007, where further submissions must be made in person to the Older Live Cases Unit in Liverpool, and one for asylum claims lodged on or after March 2007, where further submissions can be submitted either via appointment at a UKVI reporting centre or at a regular reporting event. We want to streamline this process so that we are better able to provide an effective customer service by considering further submissions much more quickly, granting protection to those who need it much sooner and deciding unfounded claims more quickly to progress them to removal.
From 26th January 2015 we will require all failed asylum seekers wishing to submit further submissions to make a prior appointment to do so, in person, in Liverpool. The appointment will be requested by telephone. We will aim to make appointments within 10 working days of the initial telephone contact.
At the initial contact to make an appointment, we will ask customers to complete a pro forma to set out the grounds of their further submissions. This is intended to clarify the type of information required and ensure that all relevant points are covered, which will make it easier for caseworkers to properly consider the evidence provided and avoid delay in reaching a decision.
On the appointed day, we will take receipt of the pro forma and any other relevant documents, and confirm identity. We will also take the opportunity to address any points which require clarification. We will then take a decision on the papers, as soon as possible.
Just as now, we will consider exceptional circumstances for when further submissions in person is not appropriate, for example if an individual is unable to travel due to a disability or severe illness. In such cases further submissions may still be accepted by post.
We will notify this change in our reporting centres immediately and on Gov.uk from 26th January. Where a reporting centre has already booked an appointment for further submissions to be lodged, we will honour that appointment and accept any further submissions lodged.
We are doing this for a number of reasons:
Failed asylum seekers who lodge further submissions are a significant proportion of the supported asylum population and we want to consider the new information provided as swiftly and efficiently as possible. Building on the work we have already done in Liverpool to clear pre 2007 cases we want to ensure that the flow of new cases (running at around 70 cases a week) is properly managed by processing applications in good time
The Older Live Cases Unit (OLCU) in Liverpool has now decided, and communicated, decisions on the cohort of older asylum cases where asylum was claimed before 5 March 2007. However, we recognise that UKVI has not been able to focus enough effort on post 5 March 2007 cases with outstanding further submissions. The change we are introducing will help address this by re-balancing the system; ensuring those who have been refused asylum upheld by the Courts but who wish to make further submissions get a quicker decision, and bringing more cases to conclusion. It makes good business sense to use the skills and expertise of OLCU to both receive and make decisions on the further submissions in Liverpool. OLCU will also continue to be responsible for any new submissions lodged by those who claimed asylum prior to 5 March 2007.
Centralising further submissions casework will mean that the OLCU resource can be effectively deployed to make decisions on the existing stock of further submissions and will also mean there is a resource in place to prioritise consideration of new submissions where appropriate, including where an applicant is applying for or already in receipt of asylum support. Requiring further submissions in person in Liverpool will allow us to consider most cases within 5 working days – offering a much improved service to those wishing to make further submissions. Where possible we intend to make a decision on the same day and as with existing arrangements we reserve the right to detain any case that is readily removable.
Centralising the procedure for lodging further submissions will also provide the opportunity to ensure that any applicant who is not currently reporting to the Home Office can be set up with reporting requirements.
Whilst I appreciate that we are introducing this change quickly, we believe it is right to act swiftly to make best use of trained staff to provide faster decisions on those wishing to submit new information to us. This is part of our efforts to ensure a firm but fair immigration system. We would appreciate your assistance in making this work by ensuring that those wishing to make further submissions are aware of the new process.
I understand that Gabrielle Monk, Director of Complex Casework, will be meeting with Stakeholders on 22nd January at the regular CCWD stakeholder forum – many of you are also members of that forum and she will be happy to talk through the changes in more detail then. If any of you do not normally attend that forum and would wish to discuss this change further, you are welcome to either attend on 22nd, or to contact Gabrielle to make separate arrangements. Partners from Still Human, Still Here, who have a particular interest in failed asylum seekers, will also have the chance to discuss this change with Rob Jones, Head of Asylum and Family Policy, at their meeting in London on 13 January.
Yours sincerely
Mike Wells CBE
Chief Operating Officer
UK Visas and Immigration
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