UK: Should asylum-seekers starve? (feature)
01 September 1996
The government's Asylum and Immigration Act 1996 was finally passed in July 1996. On its way through parliament it was amended to include provisions to make asylum-seekers homeless and destitute. Several senior judges have indicated that these and other parts of the Act could be in breach of the Geneva Convention on Refugees. This article looks at the history of the social security provisions of the Act, and at the Act's "safe country of origin" and "safe third country" provisions.
In October 1995, social security secretary Peter Lilley told a rapturous Tory party conference that he was introducing new social security regulations which would deny basic benefits to asylum-seekers in two categories: those who did not claim asylum on arrival (who formed 70% of all claimants), and those whose claims were rejected. Despite the universally negative response of the 250 organisations who made submissions to the Social Security Advisory Committee (a government quango which scrutinises proposed new regulations), and despite the Committee's own advice to the government to abandon the plans, Lilley's regulations came into force on 5 February 1996.
Immediately, legal challenges were launched, from two directions. Local authorities quickly realised that, while they still had duties to house homeless asylum-seekers under the homeless persons legislation, if asylum-seekers had no housing benefit, the authorities themselves would have to foot the bill. (Home secretary Michael Howard had promised to abolish this duty in the new Asylum Bill, but it was still in its early parliamentary stages.) Two authorities, Westminster and Hammersmith & Fulham, began judicial review proceedings. The other challenge came from asylum-seekers and those working with them. Ms B, a Zairean asylum-seeker, was denied benefits because she claimed asylum at Home Office headquarters on the day of her arrival rather than at Waterloo station. She took a judicial review of the regulations, together with the Joint Council for the Welfare of Immigrants (JCWI), on the grounds that the regulations deprived asylum-seekers of their rights to claim asylum and to pursue appeals, rights protected under the Geneva Convention and effected in Britain by the 1993 Asylum and Immigration Appeals Act. This was, the argument went, a use of the minister's power to make regulations which the Social Security Acts could not have intended.
The government bought off the first challenge by offering local councils a cash subsidy amounting to 80% of the costs incurred by them in housing asylum-seekers pending the abolition of their duty to house them a few months later. But the second challenge went ahead, and after failing in the High Court, succeeded in June in the Court of Appeal. Lord Justice Simon Brown (who in a former incarnation defended government decisions daily as Treasury Counsel) used strong language to condemn regulations which forced asylum-seekers to choose between destitution or return to the country of feared persecution, a choice abhorrent to any "civilised society". If Parliament really wanted to subject asylum-seekers to such an intolerable dilemma, he said, they would have to pass primary legislation.
Faced with this potentially fatal blow to his plans, Lilley consulted his partner Michael Howard. Could he "hitch a lift" on the Asylum Bill still going through parliament? With Howard's agreement, a new clause and Schedule were added to the Bill as it went through the Lords, restoring the impugned regulations. A valiant attempt by opponents in the House of Lords to allow new arrivals three days' grace to claim asylum to avoid being denied basic benefits failed. The regulations were once more law, this time enshrined in the 1996 Asylum and Immigration Act.
By the end of July in-country asylum-seekers who had applied since February, and all those refused since then, were back on the streets. Local authorities' housing duties, including emergency housing<