No recourse to public funds: How the UK's hostile environment policy is driving people into destitution
It was a couple of days after she had given birth when Olivia was called for a meeting with social work. Awaiting the outcome of a human rights application for leave to remain in the UK, Olivia was not entitled to any Home Office support. With nowhere to live and no money to live on, she had applied to her local authority for housing and financial support six months into her pregnancy, with the help of her midwife, but had yet to receive an answer.
But, to her horror, when the meeting began the conversation quickly turned to questions over her right to live in the UK, and what her immigration status would mean for her ability to care for her newborn baby.
Speaking to Holyrood, she said: “I had a caesarean and they came to me, just after, and said that if I didn’t have anywhere to go then they would think of other alternatives, which I thought meant taking the baby from me. It scared me. That was within three or four days of me giving birth. It was really bad. I still had stitches on when I had the meeting with them. It was really cruel.
“When I went to the meeting in the hospital, I thought they were going to tell me where they had found me accommodation – ‘this is where you will be with the baby, and this is the support you can get from us’. But it went on to asking me about my immigration status, about how I got into the country, about where I would take the baby when I was discharged.
“They wanted to keep an eye on me and the hospital wouldn’t discharge me until they knew where I was going. They kept asking where I was going to take the baby to, but I got confused because I had had to have two pints of blood put into me [after the birth] and I was still very weak. I had six people from the social work department in a meeting with me and I had no one, apart from the midwife, who was going to support me.”
Finally, friends helped Olivia, with a friend-of-a-friend offering her a room, short term, until she could arrange Home Office support. She waited another six months for local authority support, with no money for food or nappies for her baby. Eventually, after engaging legal help, she was offered £25 per fortnight to live on.
It was only the help of friends, as well as support from the Asylum Seeker Housing Project (ASH) and Positive Action in Housing, that kept her off the street.
Eventually she received £25 per week. “I couldn’t budget with it. I had friends who applied for nappies from the baby bank. It was the community who helped with baby clothes and baby food. I was breastfeeding and it was a really hard time.”
It was cases like Olivia’s which prompted the Scottish Parliament’s Equalities and Human Rights Committee (EHRC) to launch an inquiry into destitution among people with insecure immigration status, bringing forth more stories of local authorities attempting to prevent some of the most vulnerable people in Scotland – including children – from receiving vital services to which they were entitled.
Natalia Farmer, a Glasgow Caledonian University PhD researcher based at ASH, provided MSPs with a troubling account of supporting vulnerable people in meetings with social services.
She said: “In the assessment meetings, I have been disturbed by how Olivia has been spoken to, even with me there as an advocate. She has been called an illegal immigrant in meetings, which I have found highly disturbing and inappropriate. Olivia has an IS96 form and is not in the UK unlawfully. That sets a really destructive tone.
“In addition, social work should take a human rights perspective, but I have found that it has been taking more of a Home Office immigration perspective, which is not really social work’s remit. I have found that disturbing. Inaccurate information has been given as well. When I have taken legal documentation regarding the policy of no recourse to public funds, I have been told that Olivia cannot be accommodated because she has no recourse to public funds, even though she is actually entitled to be accommodated.
“The way that I have been spoken to in meetings has been quite intimidating too. I have been challenged and asked whether I know what my role is as an advocate.”
Olivia was concerned that her baby would be taken from her, with organisations ranging from the Scottish Refugee Council (SRC) to Scottish Women’s Aid (SWA) highlighting similar examples. As one woman put it in SWA’s committee submission: “What do I need to do, put my daughter up for adoption to be able to work and survive?”
Meanwhile, a British Red Cross submission warned: “On several occasions families with young children, including a baby being breastfed by its mother, have been told by social workers that they have no duty to offer support or assistance to the parent and will meet their duties to the child by removing them from their parent and placing them in care, despite there being no protection concerns for the child.”
The Red Cross also encountered a woman with a ten-month-old baby, with neither money nor nappies.
She made her Home Office support application through charity Migrant Help, when her baby was five months old, but had been refused. The charity advised her to seek help from a local authority homeless housing centre. But, despite there being an out-of-hours social work office based there, she was turned away on the basis that she was an asylum seeker.
After that she was homeless. For three days, she walked her baby around the streets. At night she walked in circuits around a 24-hour Asda to stay warm.
Five months later, when the Red Cross encountered them, the mother and baby were still unsupported, sleeping in a friend’s living room and dependent on foodbanks.
These cases appear to stem from confusion over what services people subject to immigration control, and with ‘no recourse to public funds’ (NRPF), are entitled to.
The NRPF condition applies to people who have arrived in the UK in a range of immigration categories, including as students and workers, and their spouses, who may have the right to work, but not access to benefits. In addition, those who have been refused asylum and have had their appeal rights exhausted, or are deemed to be in the UK without lawful status, are not entitled to work, but are also not entitled to either asylum support or mainstream benefits. This means they are effectively destitute by operation of the law.
For example, someone could come to the UK as the partner of a student, and if the partner became abusive and they left them, they would be considered to be in the UK unlawfully and would also have no entitlement to benefits.
Section 115 of the Immigration and Asylum Act 1999 states that a person subject to immigration control will have ‘no recourse to public funds’ – meaning they cannot access ‘non-contributory benefits’ such as child benefit, universal credit, disability benefits and the Scottish Welfare Fund – however, Scottish law means that children in Scotland, regardless of their immigration status, cannot be left destitute.
So while people with NRPF are restricted from accessing mainstream services, if they become destitute, they can still approach their local authority for support under social work or children’s legislation.
Jen Ang, partner at JustRight Scotland, a legal charity that works to increase access to justice and promote human rights, explained that under Section 22 of the Children (Scotland) Act 1995, accommodation or financial support can be made to those with NRPF if necessary to prevent a breach of human rights, for example, if not providing the support will result in children becoming destitute or homeless.
She told Holyrood: “The reasoning is that in Scotland the system of child law does not discriminate on the basis of migration status or nationality. That means all children in Scotland up to the age of 18 are our children – they deserve equal access to child protection, and for their welfare to be safeguarded the same way. So a Scottish child who is destitute and homeless would be classed as a child in need, and the local authority would have a duty to accommodate them and provide financial support to promote their welfare.
“But the thing that has perhaps been less clearly understood is that Section 22 requires the local authority to also take into account whether it is better to accommodate the parent with the child. The answer to that is: if there are no child protection concerns, then Section 22 requires the local authority to promote the upbringing of the child with the parent, and also provides the power to do this, by also offering accommodation and financial support to the parent and siblings.
“Local authorities accept they have that duty, but there has been inconsistency in the way support has been provided across Scotland. I know that local authorities are aware of this, and it is clearly unjust. There is also a concern that, not only is provision inconsistent, but that the quality of the accommodation and the amount of financial support on a weekly basis is probably inadequate in many cases.”
Appearing in front of the EHRC, Susanne Millar, the chief officer for strategy, planning and commissioning in Glasgow City Health and Social Care Partnership, was clear that if destitution is the only issue in one of these cases, then it would not be appropriate to accommodate children in care. The guidance was clear, she said.
But it was concerns over these examples that prompted the Scottish Association of Social Workers (SASW) and UNISON Scotland to release a new legal guide for practitioners, ‘Refugee and Asylum in Scotland: Social work support a human right not an administrative burden’, after finding that, even when social workers request vital services for asylum seekers, they are often wrongly denied.
The guide states: “It is clear that progressive Scottish legislation, designed to meet and support the needs of children with the central principle that the child’s welfare is paramount, is compromised by immigration legislation.
“This is the greatest dilemma for social workers – acting as part of a system that seems intrinsically oppressive.”
SASW’s professional officer, Tim Parkinson, told Holyrood: “We were concerned particularly that from the experience of the service users and the people who had been without recourse to public funds and had these negative experiences, that social workers were being seen as the deliverers of bad practice in that instance. We were keen to look at it and ensure the social workers who were our members knew what they should be doing, in terms of the codes of practice and Scottish legislation. At a grassroots level, it is about people being aware of people’s rights, and what the legislation states, and challenging mistaken instructions they might be getting.”
Yet, despite the EHRC inquiry highlighting failings, hundreds of NRPF families receive support from local authorities across Scotland, with data from the UK NRPF Network, which includes Glasgow and Edinburgh city councils, showing they spent a total of £36.4m in 2016/17 supporting families with NRPF, without any additional funding from either the UK or Scottish governments.
Clearly local authorities, with budgets already strained, are struggling to mitigate policies, such as NRPF, enacted by the UK Government.
Councillor Kelly Parry, COSLA spokesperson for community wellbeing, said: “Meeting the needs of destitute migrants and asylum seekers is a growing challenge for local government. Increasing numbers of people are being denied access to public funds by laws designed to make the UK a ‘hostile’ place for those who do not have a legal right to live here.
“Despite this, many Scottish councils are providing social work assistance, temporary accommodation and subsistence payments to some of the most vulnerable migrants and asylum seekers, including destitute families with children and adults in need of care. This is without any extra funding from the UK or Scottish governments and at a time when budgets are severely stretched.
“COSLA’s migration team is working to strengthen responses to destitution in Scotland. Over the course of 2018 we will help to update national guidance, enable public bodies and the third sector to better support one another, and facilitate training to develop the skills and knowledge of local authority workers.
“However, these improvements will only go so far to address the significant risks that migrants and asylum seekers face. Therefore, I will also seek action from the UK and Scottish governments to ensure that the asylum system and immigration policies prevent destitution and that public services have the resources they need to support all those experiencing severe poverty.”
However, local authority sources suggest the number of families with NRPF is increasing, while SRC service manager Esther Muchena reports an rise in calls from social workers struggling with highly complex immigration cases. She said: “Everyone agrees what their priorities should be in terms of their duty to children, but that’s not what happens on the ground. Something needs to change.”
Behind all of these concerns lie questions over the role of social workers in implementing Home Office policies. On the one hand, they are expected to make decisions based on human rights considerations, but on the other, they are under increasing pressure from the UK Government to report those it wants out of the UK.
In establishing the ‘hostile environment’ policy, the UK Government’s stated aim was to deny those in the UK unlawfully from accessing public services, in an attempt to persuade large numbers to leave the country. As Theresa May put it in 2012, as Home Secretary: “The aim is to create, here in Britain, a really hostile environment for illegal immigrants.”
In this context, it is questionable how much local authorities can be expected to do.
On one level, despite obvious failings highlighted by organisations like ASH, local government is expected to step in and offer a safety net to those falling through the system, yet on another, high above, the Home Office is attempting to remove it.
And that is the crux of the problem, because as far as the UK Government is concerned, the fact that vulnerable people with insecure immigration status are going without support is not an example of failure, it is the intended consequence of a policy aimed at forcing them out of the UK.
So destitution among Scotland’s most vulnerable people is increasing, including among women and children survivors of domestic abuse.
In response, the EHRC called for a Scottish anti-destitution strategy, while its report also recommended ministers create a ‘destitution fund’ for women experiencing domestic abuse who are unable to access other sources of help, as well as a new Scottish Government advocacy service for people with insecure immigration status.
It recommended that people seeking asylum should have the right to do paid and unpaid community work in Scotland to boost integration, support asylum seekers’ mental and physical health, and create opportunities to receive an income.
Meanwhile organisations such as the SRC continue to call for a clear statutory and third sector partnership to give a proper national focus to these human rights issues.
Yet any attempt to combat destitution will be limited as long as hostile environment continues. COSLA described destitution as an “inevitable consequence” of the hostile environment policy, while the EHRC report warned that “destitution is built into the UK asylum process”.
In this sense, people with insecure immigration status being forced to go without money, food or nappies for their children is not a failing in the system. It is the system.
As Olivia told Holyrood: “I have been in the UK for 12 years and I have never heard of this situation happening to anyone. I felt like I was in another world, where human beings didn’t have hearts.
“They couldn’t see there was a woman who had just had a baby, who had been donated blood because she was weak. I didn’t know I was dealing with human beings. I felt like I had to protect my baby, and that my baby was going to be taken away from me. When I rushed back to the room, I couldn’t even speak.”
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