Mark Willis examines the rights of refugees to claim benefits and the problems that can arise.
Recent developments in the benefits system and the asylum process mean that refugees face fresh challenges in securing the support they need to build a new life in the UK. People fleeing their home country and applying for protection (or asylum) in the UK are generally excluded from claiming most benefits (asylum seekers are 'persons subject to immigration control' in the benefit rules). They instead have to rely on Home Office support which is provided at a level less than the minimum the law allows anyone else to live on. If a positive decision is made on an application for asylum, a person is no longer an asylum seeker and is granted one of the following statuses:
•refugee status under the 1951 Geneva Convention;
•discretionary leave to remain;
•indefinite leave to remain (as part of a special exercise to clear the backlog of asylum applications)
Following a positive decision, support from the Home Office stops and the person is given 28 days to navigate the social security system and also, in many cases, vacate their accommodation and find somewhere else to live.
All the above types of leave allow the person to claim benefits and tax credits on the same basis as a UK national and mean s/he is no longer a 'person subject to immigration control'. The first three types of leave are usually given for a time-limited period of up to five years, and it is very important that an application for extension is made before the leave expires. The previous status is retained pending a decision on the application.1 Section 3, Immigration & Asylum Act, 1999
Note that people who receive a positive decision on their asylum application are often referred to as, or consider themselves to be, 'refugees', even if they are granted one of the other statuses above. A refugee, however, is only legally and technically a person who has been recognised as such by the UK government under the 1951 Geneva Convention. The distinction and terminology can be important because there are special benefit rules that only apply to 'refugees'.
The groups of people eligible for income support has been squeezed in recent years with the introduction of employment and support allowance and the lone-parent changes, but refugees who are learning English in order to find employment remain an eligible category.2 Income Support (General) regulations, Schedule 1B, 1
Until recently, it was rare to find someone who met the criteria, as the course must start within the first year of coming to the UK and the average time taken for an asylum decision was far longer.3 An average of 22 months in 1997, UKBA press release, 26 Feb 2010
Decisions are now being made more quickly, however, and although the majority are negative, it is possible to find someone granted refugee status within a year of arrival in the UK. If the refugee can find a suitable course learning English for more than 15 hours a week, s/he is entitled to income support for up to nine months while attending the course. This will, as it was surely intended to do, ease the transition to a new country and promote integration and employment prospects. Note, however, that this only applies to someone who has been recognised as a refugee under the Geneva Convention, and not to someone with humanitarian protection or other leave.
Refugees who claimed income support (IS) within one month of being granted refugee status used to have the right to have their claims backdated to the date they first claimed asylum in the UK. Backdating of IS for refugees was scrapped from 14 June 2007 and replaced with refugee integration loans (see below). Note that the abolition of backdating rules only applies to adults, and separate provisions relating to benefits for children were not revoked (see below).
The Geneva Convention provides that refugees must be treated in the same way as nationals in relation to public relief and social assistance.4 Articles 23 & 24, 1951 Geneva Convention relating to the Status and Protocol of Refugees
The reason for the backdating provision was that someone is legally a refugee from the date that they meet the criteria in the Convention, no matter how long it takes for the Government to recognise this fact.5 UNHCR Handbook as quoted in R(IS)9/98, para 23
This interpretation is supported by European Council Directive 2004/83/EC, which is based on the 'full and inclusive application of the Geneva Convention'. Article 28 of the Directive says that 'member states shall ensure that beneficiaries of refugee status receive the necessary social assistance as provided to nationals of that member state'. Asylum support (even with payment of utility bills) is below the level of basic necessities. The amount of asylum support for adults over 25 was cut from October 2009 to a little over £5 a day, a reduction from 70% to 55% of the IS rate. It is difficult to see how this could constitute the same level of social assistance available to UK nationals and it may be possible to challenge the refusal of backdating of income support for refugees on this basis.
Most refugees and others granted leave to remain are directed to the nearest Jobcentre Plus office to claim jobseeker's allowance (JSA). Many refugees, however, have suffered torture or violence resulting in physical disabilities and mental health issues such as post-traumatic stress. In these circumstances, a claim for employment and support allowance may be more appropriate. This needs to be explored sensitively, especially as the person concerned will have already been required to go over these details repeatedly with the immigration authorities.
If a claim for JSA is pursued, the initial interview and the drawing up of a jobseeker's agreement are particularly important, and an interpreter should be provided if necessary. Learning English should be considered a reasonable step to 'actively seek' work and the need for a suitable course should be stated in the jobseeker's agreement. A permitted period of up to 13 weeks may be allowed in which a claimant can look for work in his or her usual occupation, if s/he had one before coming to the UK. If it is necessary to get qualifications accepted in the UK, this should also be stated in the jobseeker's agreement. This can be complicated and specialist help may be needed from the UK National Academic Recognition Information Centre
While supported by the Home Office, asylum seekers are generally housed in furnished accommodation. Once they are granted refugee status, they may be offered a tenancy on the same or similar basis, including a substantial charge for furniture. Although the furniture charge can be covered by housing benefit, the subsequently high rent means that people may find it very difficult to meet the charge if they move off benefits into low-paid work. To avoid this trap, it is important that people are given the option to rent unfurnished accommodation and apply for grants or loans for furniture (see below).
Community care grants
People who have had a positive decision on their asylum application should be eligible for a community care grant as refugees are specifically mentioned several times in the Social Fund guide.6 DWP Social Fund Guide, paragraphs 132, 309, 312, 388
In this context, the term 'refugee' is not defined, so it should be used in its wider sense to include people with humanitarian protection and other forms of leave. In most cases, they will be will be setting up home permanently for the first time in the UK, usually as part of a planned programme of resettlement with the support of an organisation such as the Refugee Council. In many cases, families may also be under exceptional pressure due to their previous experiences, harassment, health problems or disabilities. A refugee integration loan (see below) is ignored as savings and is designed for a different purpose, and the fact that someone is eligible for one should not be used as a reason to refuse a community care grant if they meet the eligibility criteria.
Refugee integration loan
A refugee integration loan is an interest-free loan payable to people over the age of 18 who have been granted refugee status or humanitarian protection since 11 June 2007. It can be paid for needs or items that will help the refugee integrate into the UK, such as housing deposits, work-related expenses, education and training. The amount can be between £100 and £1000, but each application is decided on its merits. There is no requirement to be getting certain benefits. There is no time limit to apply, although the length of time in the UK is a relevant factor when deciding whether to award a loan to help with integration. The amount of a refugee integration loan is disregarded as capital for a social fund application7 DWP Social Fund Guide, Direction 27(3)(b)
- but it is not disregarded for other income-based benefits, so could make a difference if the claimant already has over £5,000 in savings. The application for a refugee integration loan is made to the UK Borders Agency but payment and collection is administered by the DWP and can be secured by deductions from benefits.
Refugees can still claim child benefit backdated to the date when they first applied for asylum in the UK.8 Child Benefit and Guardian's Allowance (Administration) Regulations 2003, reg 6(2)(d) & (3)
This only applies to people recognised as refugees under the 1951 Geneva Convention, not to people granted humanitarian protection or other types of leave, as it is based on rights enshrined in the Convention. Child benefit is universal and is disregarded as income for means-tested benefits, so the arrears are paid in full - there is no deduction for asylum support received. A claim for backdated benefit must be made within 3 months of the Home Office letter granting refugee status. The backdated child benefit should not be treated as capital for the purposes of means-tested benefits or a community care grant.9 Income Support (General) Regs, Reg 23(2); JSA Regs, Reg 88(2); DWP Social Fund Guide, para 388
Child tax credit
As with child benefit, refugees recognised under the 1951 Geneva Convention can claim backdated tax credits to the date when they applied for asylum in the UK if they make a claim within three months of being granted refugee status.10 Tax Credits (Immigration) Regulations, 2003, regulation 3(5)
However, the regulations state that the amount of asylum support received is deducted from any backdated tax credits arrears. An Upper Tribunal decision held that this means that all asylum support, not just amounts for children, is deducted from the backdated tax credits due.11 CTC/3692/2008
The Revenue's internal guidance states that the amount of a refugee integration loan should also be deducted from arrears of tax credits, but there is no legal basis for this.12
In practice, most people who have had a positive decision on their asylum application are too busy trying to access their basic entitlements to worry about anything else. The Refugee Integration and Employment Service, operated by various regional agencies, offers support to people granted refugee status or humanitarian protection and in some areas there are also dedicated local authority or Jobcentre Plus teams who can assist with benefit claims.
The first step is obtaining a national insurance number, which should be issued at the same time as the asylum decision. It may be difficult to open a bank or other account until there is money coming in, at the same time as being told that account details are required on claim forms. Payments of benefits or tax credits can still be made by cheque, however, and an authority to open an account should be issued with the decision.
Problems and delays with child benefit claims are particularly common due to requests for birth certificates which may have been lost or destroyed when the refugee fled their home. Home Office documents should be accepted, and can be verified and copied in person at a DWP office or Revenue enquiry centre. Interim payments of benefits are also possible if it is likely that the person will be entitled to an award. A crisis loan can be made in some situations, including where there is no money for children due to a delay by the Revenue. If children are in need, contacting social services is also an option. Making a complaint, contacting the local MP or threatening judicial review may all help to get a decision made urgently. Once a refugee has a roof over their heads and is able to feed and clothe themselves and their children, and has a chance to learn English and settle into a community, they will have the opportunity to build on the contributions made to this country over hundreds of years by migrants from all over the world.
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