Joint Committee on Statutory Instruments Ninth Report


APPENDIX 1

Memorandum from the Home Office

WITHHOLDING AND WITHDRAWAL OF SUPPORT (TRAVEL ASSISTANCE AND TEMPORARY ACCOMMODATION) REGULATIONS 2002 (S.I. 2002/3078)

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

Explain the meaning of "close family" in regulation 2(2)(c), and why the expression is not defined in the instrument.

2. The definition of "dependant" in regulation 2(2) of the 2002 Regulations mirrors the definition of "dependant" in regulation 2(4) of the Asylum Support Regulations 2000 (S.I. 2000/704) ("the 2000 Regulations"). The 2000 Regulations make provision in respect of the power in Part VI of the Immigration and Asylum Act 1999 ("the 1999 Act") to provide support to asylum seekers and their dependants. Section 94 (1) of the 1999 Act provides that, in relation to an asylum­seeker or a supported person, "dependant" means his spouse, a child of his or of his spouse who is under 18 and dependent on him, or a person who "falls within such additional category, if any, as may be prescribed". Regulation 2(4)(c) of the 2000 Regulations includes within the definition of a "dependant" a member of the asylum­seeker or his spouse's "close family" who is under 18.

3. The main purpose of the 2002 Regulations is to enable local authorities to make arrangements for travel and temporary accommodation in relation to four categories of persons who are ineligible for certain benefits by virtue of paragraph 1 of Schedule 3 to the 2002 Act. The definition of "dependant" is included in regulation 2(2) in order to clarify who falls within the four categories of ineligible person as well as for the purposes of the Regulations in which the term also appears.

4. "Close family" in regulation 2(2) of the 2000 Regulations was deliberately left undefined so as to reflect the different types of family group that exist in other cultures around the world. Whether someone is "close family" will therefore depend on the facts of the particular case. It may depend on how long the person has lived as part of the family. It will generally include brothers and sisters as well as children who have been brought to the United Kingdom as part of a family even where they are not the biological children of those who have brought them. Depending on the facts, it may also include cousins and nephews and nieces, and indeed other categories.

5. Therefore the Home Office respectfully considers that there are advantages to the flexibility that the absence of a definition gives in the context in question.

6. Finally, the Home Office considers that it would have been inappropriate to use different definitions of "dependant" in relation to the asylum seekers eligible for support under the 2000 Regulations, and in relation to those who are ineligible for support under Schedule 3 to the 2002 Act. If the two definitions had been different then it could have resulted in anomalies in circumstances where the same body (eg. the Secretary of State or the local authority) had responsibility for deciding whether support should be given under each provision. For example, the Secretary of State might have been forced to conclude that a person was not a dependant for the purposes of Schedule 3 to the 2002 Act but was a dependant for the purposes of entitlement to support under the 2000 Regulations. His family might then have been deprived of support from the Secretary of State under Schedule 3 in circumstances when he was entitled to receive it from the Secretary of State as a dependant pursuant to the 2000 Regulations.

24 January 2003


 
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