Joint Committee on Statutory Instruments Fourth Report


APPENDIX 1

Memorandum by the Home Office

ASYLUM SUPPORT (INTERIM PROVISIONS) REGULATIONS 1999 (S.I. 1999/3056)

  1. The Committee has requested a memorandum on the following points:

(1) Regulation 2(1) defines a person's "depend[a]nt" in terms of -

  (a) his being a member of his (or his spouse's) "close family" [case (c)]; and

  (b) his being himself "the asylum-seeker" in a case where the person is a claimant for support or is being supported [case (i)].

Explain -

  (a) in relation to case (c), what relationships constitute "close family".

  2. The definition operates in relation to an asylum-seeker, an assisted person and a person claiming support. The relationships that constitute "close family" will depend very much on the origin of the particular asylum-seeker, assisted person or person seeking support in relation to whom the definition is being applied and on his own family circumstances. It is important to leave sufficient flexibility to enable the circumstances of the particular family group that is being assessed to be taken fully into account

  3. There are some relationships that are likely always to be regarded as constituting a close family relationship, such as parent and child, brother and sister and probably uncle/aunt and niece/nephew. But, while that list of relationships makes sense in relation to the majority of families in this country, it could have the effect of disqualifying some members of more extended or unorthodox families, to which asylum-seekers may belong, from being supported under the Regulations together with the rest of their family unit. That is why it was considered important to leave the concept of "close family" undefined, so that it could be interpreted appropriately for each individual case. That approach is in line with the approach of the European Court of Human Rights. In determining what constitutes "family life" for the purposes of Article 8 of the European Convention on Human Rights, the Court tends to look for evidence of actual family life, rather than being bound by legal relationships.

Explain -

  (b) in relation to case (i), the sort of situation (giving an example) which it is intended to cover.

  4. Local authorities are required to provide support to asylum-seekers and their dependants who appear to be destitute or to be likely to become destitute within 14 days (regulation 3(1)). Thus, a local authority may find themselves providing support to the dependants of an asylum-seeker, but not to the asylum-seeker himself. This is most likely to happen where the asylum-seeker is detained, but his dependants are not. One of his dependants will make a claim for support and, if the group are eligible for support, the local authority to whom the claim is made are required to provide support.

  5. Case (i) in regulation 2(1) covers the situation where this has occurred and the asylum-seeker has subsequently been released from detention. Rather than requiring him to make a separate claim for support, this provision enables him to be treated as a dependant and thus to be supported as a member of the family group.

(2) Given the requirements of paragraph 2.73 of the Statutory Instrument Practice that explanatory notes, in explaining the substance and purport of an instrument, be "comprehensive", explain why the Explanatory [Note] contains no explanation of the main provisions of these Regulations.

  6. The Explanatory Note states that the Regulations make provision requiring certain local authorities to provide support to asylum-seekers and their dependants who appear to be, or to be likely to become, destitute. Beyond that basic obligation the Regulations set out details about the type of support to be provided, the matters to be taken into account and the conditions for refusing, suspending and discontinuing support. It was not considered appropriate to include that sort of detail in the Explanatory Note.

6th December 1999


 
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