Select Committee on Delegated Powers and Deregulation Twenty-Second Report


ANNEX

IMMIGRATION AND ASYLUM BILL
Memorandum by the Home Office

PART VI: SUPPORT FOR ASYLUM-SEEKERS

CLAUSE 84(1): POWER TO EXTEND THE DEFINITION OF "DEPENDANT" FOR THE PURPOSES OF PART VI
Power conferred on: The Secretary of State
Power exercisable by:Statutory instrument
Parliamentary Procedure:Negative resolution (either House of Parliament)
Other relevant provisions:Clauses 85(1), 154 and 155(1)

239.  Clause 84(1) of the Bill defines the term "dependant" for the purposes of Part VI as being, in relation to an asylum seeker, the asylum seeker's spouse or a child of the asylum seeker or of his spouse who is under 18 and dependant on the asylum seeker. The definition is significant because under clause 85(1), the Secretary of State has power to support only asylum seekers and their dependants.

240.  The definition also refers to such other category of dependant as may be "prescribed". Under clause 155(1), "prescribed" means prescribed in regulations made by the Secretary of State. This power will enable the Secretary of State to extend the definition to include additional categories of dependant. For example, the power might be used to provide that the nephews or nieces of asylum seekers are dependants for the purposes of Part VI.

241.  It is submitted that a power is necessary for this purpose because of the flexibility that it provides. It will enable the Secretary of State to provide support for extended family units in particular circumstances. Without this power, the Secretary of State would never be able to support more than the nuclear family and extended family dependants would always have to be treated as unaccompanied minors. The precise scope of who is to be covered will need to be changed in the light of experience and circumstances. But the intention is to support the family unit included in an asylum application.

242.  Under clause 154 the power is exercisable by statutory instrument subject to annulment by either House. It is submitted that the negative resolution procedure provides an appropriate level of Parliamentary control, given the limited nature of the power.

CLAUSE 84(3): POWER TO PRESCRIBE THE POINT AT WHICH A CLAIM FOR ASYLUM IS DETERMINED
Power conferred on: The Secretary of State
Power exercisable by:Statutory instrument
Parliamentary Procedure:Negative resolution (either House of Parliament)
Other relevant provisions:Clauses 84(1), 85(1) 154 and 155(1) of the Bill

243.  Clause 84(3) makes provision for the time at which a claim for asylum is deemed to be determined for the purposes of Part VI of the Bill. This is important because an asylum-seeker is defined in clause 84(1) as a person whose claim for asylum has not been determined and, by virtue of clause 85(1), the Secretary of State only has power to support asylum-seekers (and their dependants).

244.  Clause 84(3) provides that a claim for asylum is determined at the end of the period that begins either when the claimant is notified by the Secretary of State of the decision on his claim or, if the claimant has made an appeal, when the appeal is disposed of. The end point of this period is to be prescribed. Under clause 155(1), "prescribed" means prescribed in regulations made by the Secretary of State.

245.  It is submitted that a power is appropriate for this purpose because it provides flexibility. At present, it is intended to use the power to set a period of 14 days, within which the successful asylum seeker would be expected to move to the social security system or to make arrangements to work, and within which the unsuccessful asylum seeker would be expected to appeal the decision (if he had not already done so) or to make arrangements to leave the country. However, it might become apparent that 14 days did not provide sufficient time for this purpose. There would be a particular problem if the seven day period, within which an asylum seeker must lodge an appeal against a decision of the Secretary of State in relation to his claim for asylum (rule 5(1) of the Asylum Appeals (Procedure) Rules 1996), were increased beyond 14 days. It is therefore necessary to have the flexibility to alter the period for which a person continues to receive support under Part VI. Under clause 154(2), different periods may be prescribed for different purposes.

246.  Under clause 154 the power is exercisable by statutory instrument subject to annulment by either House. It is submitted that the negative resolution procedure provides an appropriate level of Parliamentary control.

CLAUSE 85(1): POWER TO SET THE FUTURE PERIOD WHICH THE SECRETARY OF STATE MAY TAKE INTO ACCOUNT WHEN ASSESSING THE DESTITUTION OF AN ASYLUM SEEKER
Power conferred on: The Secretary of State
Power exercisable by:Statutory instrument
Parliamentary Procedure:Negative resolution (either House of Parliament)
Other relevant provisions:Clauses 154 and 155(1) of the Bill

247.  Clause 85(1) is the lynchpin of the asylum support scheme set up by the Bill. It gives the Secretary of State the power to provide support, or arrange for the provision of support, for asylum seekers (and their dependants) who appear to the Secretary of State to be destitute or to be likely to become destitute within a prescribed period. Under clause 155(1), "prescribed" means prescribed in regulations made by the Secretary of State.

248.  The power to prescribe the future period which the Secretary of State may take into account when assessing destitution is important. If an asylum seeker arrives with a small amount of money sufficient to support him for a week, he may not appear to be destitute at the time that the Secretary of State makes his assessment under clause 85(1), but he is likely to become destitute in the near future. It therefore makes sense to provide him with support immediately rather than requiring him to make a further application when he has actually become destitute.

249.  Delegated legislation is necessary for setting the period which the Secretary of State can take into account when assessing destitution because it provides flexibility. It may be necessary to set slightly different periods for different categories of asylum seekers. Also, it may become necessary to alter the period, for example, if it becomes clear that it is too short and that it is giving rise to many repeat applications, thus causing administrative problems.

250.  Under clause 154 the power is exercisable by statutory instrument subject to annulment by either House. It is submitted that the negative procedure provides an appropriate level of Parliamentary control for this power, being a matter of detail.

CLAUSE 85(2): POWER TO PRESCRIBE CIRCUMSTANCES IN WHICH A PERSON IS EXCLUDED FROM SUPPORT UNDER CLAUSE 85(1)
Power conferred on: The Secretary of State
Power exercisable by:Statutory instrument
Parliamentary Procedure:Negative resolution (either House of Parliament)
Other relevant provisions:Clauses 85(1), 154 and 155(1) of the Bill

251.  Clause 85(1) gives the Secretary of State the power to provide, or arrange for the provision of support, for asylum seekers (and their dependants) who appear to be destitute or likely to become destitute. Clause 85(2) gives the Secretary of State power to prescribe circumstances in which a person who would normally be eligible for support under clause 85(1) is excluded from eligibility.

252.  The power will be used to exclude persons from the Part VI regime where they are eligible for benefits notwithstanding they are asylum seekers, for example EEA nationals, or those nationalities entitled to welfare benefits under the European Convention for Social and Medical Assistance. It may be that other categories of person to be excluded will be identified as the detail of the Secretary of State's scheme to provide support under clause 85(1) is consulted upon (see clause 88); for example the intentionally destitute.

253.  It is considered appropriate to leave the matter to delegation legislation as it is one of detail and one that may require change in the light of experience and circumstances.

254.  Under clause 155(1), "prescribed" means prescribed in regulations made by the Secretary of State. Under clause 154 the power is exercisable by statutory instrument subject to annulment by either House. Negative procedure is considered appropriate given the relatively limited nature of the power.

CLAUSE 85(5): POWER TO PRESCRIBE MATTERS WHICH THE SECRETARY OF STATE, WHEN DETERMINING WHETHER A PERSON'S ACCOMMODATION IS ADEQUATE, MUST HAVE REGARD TO AND MAY NOT HAVE REGARD TO
Power conferred on: The Secretary of State
Power exercisable by:Statutory instrument
Parliamentary Procedure:Negative resolution (either House of Parliament)
Other relevant provisions:Clauses 85, 154 and 155(1) of the Bill

255.  Clause 85(1) ties the power to provide support to asylum seekers to whether or not they are destitute. Clause 85(3) provides that a person is destitute if he does not have adequate accommodation or any means of obtaining it or, if he has adequate accommodation or the means of obtaining it, cannot meet his other essential living needs.

256.  Clause 85(5)(a) gives the Secretary of State the power to prescribe matters that he must take into account when determining whether a person's accommodation is adequate. For example, this power might be used to provide that the Secretary of State must have regard to the availability of facilities for the preparation and cooking of food; or the fact the accommodation is overcrowded.

257.  Clause 85(5)(b) gives the Secretary of State the power to prescribe matters that he may not take into account when determining whether a person's accommodation is adequate. Any matters that are prescribed under this power would be in addition to the matters stated on the face of the Bill in clause 85(6). The kind of matters that might be prescribed are such matters as quality of fixtures and fittings, whether the property has a high quality of internal/external decoration; but no decisions have yet been taken and there will be consultation.

258.  Delegated powers are necessary for the purposes described above. It is not simply a case of setting out a list of relevant factors. It will also be necessary to be specific about the circumstances in which those factors apply and the categories of asylum seekers to whom they apply. This is more appropriately done in delegated legislation than in primary legislation, as a matter of detail. There may also be a need to revise the factors concerned in the light of experience and circumstances, in particular if there are influxes of those from particular cultural backgrounds.

259.  Under clause 155(1), "prescribed" means prescribed in regulations made by the Secretary of State. Under clause 154 the power is exercisable by statutory instrument subject to annulment by either House. It is submitted that the negative procedure provides an appropriate level of Parliamentary control for both these powers. It should be noted that the most significant factors that may not be taken into account by the Secretary of State in determining whether accommodation is adequate are spelt out on the face of the Bill in clause 85(6) and will thus have received full Parliamentary scrutiny.

CLAUSE 85(7): POWER TO PRESCRIBE MATTERS WHICH THE SECRETARY OF STATE, WHEN DETERMINING WHETHER A PERSON'S ESSENTIAL LIVING NEEDS ARE MET, MUST HAVE REGARD TO AND MAY NOT HAVE REGARD TO
Power conferred on: The Secretary of State
Power exercisable by:Statutory instrument
Parliamentary Procedure:Negative resolution (either House of Parliament)
Other relevant provisions:Clauses 85, 154 and 155(1) of the Bill

260.  As explained above, clause 85(1) provides a power to support destitute asylum seekers. Clause 85(3) provides that a person is destitute if he does not have adequate accommodation or any means of obtaining it or, if he has adequate accommodation or the means of obtaining it, cannot meet his other essential living needs.

261.  Clause 85(7) gives the Secretary of State the power to prescribe matters that he must have regard to (clause 85(7)(a)) and the matters that he may not have regard to (clause 85(7)(b)) when determining whether a person's essential living needs are met. For example, the power under clause 85(7)(a) might be used to provide that the Secretary of State must have regard to whether the person has any winter clothes. The power under clause 85(7)(b) might be used to provide that the Secretary of State may not have regard to a person's lack of means to pay for replacement clothing (except in the case of children).

262.  It is submitted that these are matters which are appropriately dealt with in delegated legislation since they are detailed and will vary according to circumstances.

263.  Under clause 155(1), "prescribed" means prescribed in regulations made by the Secretary of State. Under clause 154 the power is exercisable by statutory instrument subject to annulment by either House. It is also submitted that the negative procedure provides an appropriate level of Parliamentary control.

CLAUSE 85(8): POWER TO PRESCRIBE THAT ITEMS OR EXPENSES ARE OR ARE NOT TO BE TREATED AS BEING AN ESSENTIAL LIVING NEED
Power conferred on: The Secretary of State
Power exercisable by:Statutory instrument
Parliamentary Procedure:Negative resolution (either House of Parliament)
Other relevant provisions:Clauses 85, 86, 87 and 154 of the Bill

264.  The concept of essential living needs is important in assessing whether a person is destitute or not, as explained in relation to the power under clause 85(7) above. It is also a key concept in clause 86 which deals with the type of support that is to be provided to asylum seeker and their dependants under clause 85.

265.  Clause 85(8) gives the Secretary of State the power to provide that particular items or expenses are, or are not, to be treated as being an essential living need. The purpose of this power is not to make an exhaustive list of essential living needs but rather to set the limits of the concept of essential living needs. Thus, the power might be used to provide that holidays are not to be treated as essential living needs.

266.  It is submitted that it is appropriate that this purpose should be achieved by delegated legislation, given the level of detail involved. Also, delegated powers provide flexibility which will be useful in this context - once the scheme is in operation, it may become apparent that items that were considered to fall outside the definition of essential living needs should be brought within it and vice versa.

267.  Under clause 154 the power is exercisable by statutory instrument subject to annulment by either House. It is submitted that the negative procedure provides an adequate level of Parliamentary control, given the relatively limited nature of the power.

SCHEDULE 8, PARAGRAPH 1: POWER TO MAKE PROVISION FOR LOCAL AUTHORITIES TO PROVIDE SUPPORT TO DESTITUTE ASYLUM SEEKERS BEFORE CLAUSE 85(1) COMES INTO FORCE
Power conferred on: The Secretary of State
Power exercisable by:Statutory instrument
Parliamentary Procedure:Negative resolution (either House of Parliament)
Other relevant provisions:Clause 85, clause 154 and Schedule 8 of the Bill

268.  Paragraph 1(1) of Schedule 8 gives the Secretary of State power to make provision by regulations requiring prescribed local authorities to provide support to destitute asylum seekers and their dependants before the provisions of the main asylum support scheme come into force. It is envisaged that individual local authorities will be prescribed for this purpose and also classes of local authorities, for example, county councils.

269.  This regulation making power is intended to enable spreading of the burden of supporting asylum seekers across the country, pending the commencement of the main asylum support scheme. The power would be used to achieve the same objective. It also allows local authorities to provide support free of a number of difficulties they have been experiencing in providing support under section 21 of the National Assistance Act 1948.

270.  The subsequent provisions of the Schedule give more detail about the content of the regulations. They must provide for the question of destitution to be determined by the local authority concerned and for these purposes the local authority is to use the test in clause 85 (paragraphs 2 and 3). The regulations may prescribe circumstances in which support must be provided or must be refused or may be refused (paragraph 4). For example, the regulations might provide that support must be refused to an asylum seeker who is entitled to claim social security benefits. The regulations may provide that support is or is not to be provided in prescribed ways, for example, support is to be provided in kind rather than in cash, unless that is not practicable (paragraph 5).

271.  The regulations may make provision for the Secretary of State to determine the maximum number of asylum seekers that a local authority is required to support and for claims to be referred from one local authority to another, if the first has exceeded its maximum (paragraph 6). The purpose of this provision is to avoid replicating the current situation, where some local authorities are overwhelmed with asylum seekers and others have very few. The regulations may also make provision for the situation where a claim for support is made direct to the Secretary of State, for example, during an interview concerning a substantive asylum claim (paragraph 7). In such circumstances, the regulations may provide for the referral of the claim to a prescribed local authority, as long as the local authority is not supporting more than its maximum number of asylum seekers, and for the payment by the Secretary of State of expenses incurred as a result of the referral.

272.  Paragraph 8 provides that the regulations may make provision requiring prescribed local authorities or other prescribed bodies to give reasonable assistance to local authorities providing support under the regulations. This might be used to prescribe particular local authorities, but it is more likely to be used to prescribe classes of local authorities. It is envisaged that the power to prescribe other bodies will be used in respect of district councils. District councils will not be providing support direct to asylum seekers but will thus be under an obligation to provide assistance to local authorities by making their housing available where appropriate.

273.  The regulations may make provision for the procedure for making and determining claims for support (paragraph 9). They may also make provision for a person who has received or is receiving support under any other prescribed enactment to be taken to have been accepted for support under the regulations in this Schedule (paragraph 10). It is intended to prescribe, for example, section 21 of the National Assistance Act 1948 for this purpose, so that a person being supported under the National Assistance Act at the time that the Schedule is commenced will be deemed to be supported from then on under the regulations. Paragraph 11 provides that a person entitled to claim support under the regulations is not entitled to claim support under any other prescribed enactment, for example, the National Assistance Act.

274.  Under clause 154 the power is exercisable by statutory instrument subject to annulment by either House.

275.  It is submitted that it is appropriate for a power to be used to make provision for the interim support scheme and for that power to be subject to the negative Parliamentary procedure. As can be seen from the above, the regulations will need to contain a substantial amount of detail that can be better dealt with in subordinate legislation. Also, it may prove unnecessary to use the power for the whole of the United Kingdom and, in such circumstances, it would seem undesirable to place on the face of the statute such detailed provisions. The Schedule sets out the essential headings and principles of the interim support scheme, thus enabling Parliament to scrutinise these crucial aspects thoroughly. The regulations will fill in the detail anticipated by the Schedule.

CLAUSE 86(1)(C): POWER TO PRESCRIBE EXPENSES INCURRED IN CONNECTION WITH AN ASYLUM CLAIM FOR WHICH SUPPORT MAY NOT BE PROVIDED
Power conferred on: The Secretary of State
Power exercisable by:Statutory instrument
Parliamentary Procedure:Negative resolution (either House of Parliament)
Other relevant provisions:Clauses 85, 154 and 155(1) of the Bill

276.  Under clause 86(1)(c), support may be provided under clause 85 to enable an asylum seeker to meet what appear to the Secretary of State to be expenses incurred in connection with his claim for asylum. However, there are exceptions to this general principle: support may not be provided to meet legal expenses - separate provision is made elsewhere for legal expenses - and there is a power to prescribe other expenses which are excepted from the general principle.

277.  The purpose of this power is to enable the Secretary of State to make clear that certain items are not to be provided by him under this power which otherwise might be argued to be covered. For example, a telephone (as distinct from funding the cost of telephone calls) or computer facilities.

278.  It is considered appropriate to leave this matter to delegated legislation, given the level of detail and the need to adjust the provision made in the light of experience and circumstances.

279.  Under clause 155(1), "prescribed" means prescribed in regulations made by the Secretary of State. Under clause 154 the power is exercisable by statutory instrument subject to annulment by either House. Given the limited nature of the power, use of the negative procedure is considered appropriate.

CLAUSE 86(4): POWER TO PROVIDE FOR CLAUSE 86(3) NOT TO APPLY, ENABLING SUPPORT TO PROVIDED WHOLLY OR MAINLY BY WAY OF PAYMENTS
Power conferred on: The Secretary of State
Power exercisable by:Statutory instrument
Parliamentary Procedure:Negative resolution (either House of Parliament)
Other relevant provisions:Clauses 85, 86(3), 86 (6) and 154 of the Bill

280.  Clause 86(3) provides that, unless the circumstances of a particular case are exceptional, support provided under clause 85 must not be wholly or mainly by way of payments to the asylum seeker (and his dependants).

281.  Clause 86(4) provides a power to disapply clause 86(3) as follows: in all cases for a specified period of time, in specified circumstances, for specified categories of people or in relation to people whose accommodation is in a specified locality. "Specified" means specified in an order made by the Secretary of State (subsection (6)).

282.  It is appropriate that this purpose should be achieved through delegated legislation. The current intention is that clause 86(3) should not be disapplied and therefore it would not be possible to make provision for its disapplication other than by delegated power. But it is important to have this power to ensure that the asylum support scheme can be operated in a more flexible manner (cash being more flexible than benefit in kind) if the circumstances require it. For example a sudden influx of large numbers of asylum seekers.

283.  Under clause 154 the power is exercisable by statutory instrument subject to annulment by either House. It is submitted that the negative procedure provides an adequate level of Parliamentary control for this power. Not only is the power concerned with matters of detail, but an order might have to be made very quickly (for example a sudden influx of large numbers of asylum seekers).

CLAUSE 86(5): POWER TO REPEAL CLAUSE 86(3) WHICH PROVIDES THAT SUPPORT MUST NOT BE PROVIDED WHOLLY OR MAINLY BY WAY OF PAYMENT
Power conferred on: The Secretary of State
Power exercisable by:Statutory instrument
Parliamentary Procedure:Draft affirmative (each House of Parliament)
Other relevant provisions:Clauses 85, 86 and 154 of the Bill

284.  As stated above, clause 86(3) provides that, unless the circumstances of a particular case are exceptional, support provided under clause 85 must not be wholly or mainly by way of payments to the asylum seeker (and his dependants).

285.  As explained above, clause 86(4) gives the Secretary of State power to disapply this provision in particular circumstances. Clause 86(5) goes further and gives the Secretary of State power to repeal clause 86(3).

286.  It is considered that the proposals for provision of support mainly in kind or by way of vouchers will work well; and will be to the benefit of those supported whilst deterring those who may seek to abuse the asylum process. This power is, though, intended a safety valve should for any reason unexpectedly grave and insurmountable difficulties arise.

287.  It is submitted that this is an appropriate use of delegated power. It is intended to be used only in circumstances which are not expected; as a reserve power. Whilst the power conferred by clause 86(4) can be used to deal with temporary difficulties, if those were to continue it might be necessary, after evaluating the circumstances, for the Secretary of State to exercise the present power.

288.  Under clause 154 the order is exercisable by statutory instrument subject to the draft affirmative procedure. This is because the concept of support mainly in kind (and by vouchers) is a central principle of Part VI; and it is thought right that Parliament should have the opportunity to debate its removal. The power of course would entail amendment of primary legislation, so affirmative procedure is appropriate on that count also.

CLAUSE 87(1) AND CLAUSE 87(2): POWERS TO PRESCRIBE MATTERS WHICH THE SECRETARY OF STATE MUST HAVE REGARD TO AND MAY NOT HAVE REGARD TO WHEN PROVIDING ACCOMMODATION
Power conferred on: The Secretary of State
Power exercisable by:Statutory instrument
Parliamentary Procedure:Negative resolution (either House of Parliament)
Other relevant provisions:Clauses 85, 87 154 and 155(1) of the Bill

289.  Clause 87(1) sets out the following factors which the Secretary of State must have regard to when exercising his power under clause 85 to provide accommodation: the fact that the accommodation is to be temporary and the desirability of providing accommodation in areas where there is a ready supply of it. Clause 87(1)(c) gives the Secretary of State the power to prescribe other such factors, for example, the condition of the property.

290.  Clause 87(2) provides that the Secretary of State may not have regard to any preference expressed by the asylum seeker (or his dependants) as to the locality of the accommodation. Clause 87(2)(b) gives the Secretary of State the power to prescribe other matters to which he may not have regard when exercising his power to provide accommodation, for example, in the case of single asylum seekers, that certain specified facilities are shared.

291.  The most important factors that the Secretary of State must have regard to or may not have regard to when providing accommodation are set out on the face of the statute. It is considered appropriate for other factors to be introduced by delegated legislation, given they are matters of detail and may require to be adjusted in the light of experience and circumstances.

292.  Under clause 155(1), "prescribed" means prescribed in regulations made by the Secretary of State. Under clause 154 the power is exercisable by statutory instrument subject to annulment by either House. Negative procedure has been chosen given the relatively limited scope of the power.

CLAUSE 87(3): POWER TO AMEND CLAUSES 87(1) AND 87(2) CONCERNING THE FACTORS WHICH THE SECRETARY OF STATE MUST HAVE REGARD TO AND MAY NOT HAVE REGARD TO WHEN EXERCISING HIS POWER TO PROVIDE ACCOMMODATION
Power conferred on: The Secretary of State
Power exercisable by:Statutory instrument
Parliamentary Procedure:Draft affirmative (each House of Parliament)
Other relevant provisions:Clauses 87 and 154 of the Bill

293.  The provisions of clauses 87(1) and 87(2) are explained above. Clause 87(3) gives the Secretary of State the power to amend these provisions so that, for example, the Secretary of State would be able to take into account preferences expressed by an asylum seeker as to the locality of the accommodation.

294.  It is not intended to use this power at present, but it is necessary to leave open the possibility in case, unexpectedly, at some future date the provisions, for example, in relation to locality prove to be unworkable. Given the need to ensure that asylum seekers are appropriately supported, amending primary legislation may take too long. Or it might be that a factor which is proposed as a matter that must or may not be taken into account is of such significance that it should be put on the face of the legislation.

295.  Under clause 154 the power is exercisable by statutory instrument which is subject to draft affirmative procedure. It is considered appropriate for the power to be subject to the affirmative procedure because it permits the amendment of primary legislation. Moreover, the power enables amendment of provisions enshrining key concepts of the support arrangements under Part VI, namely dispersal and no choice; it is thought right Parliament should have the opportunity to debate any changes to these.

CLAUSE 87(4): POWERS TO PRESCRIBE MATTERS WHICH THE SECRETARY OF STATE MUST HAVE REGARD TO AND MAY NOT HAVE REGARD TO WHEN PROVIDING ESSENTIAL LIVING NEEDS
Power conferred on: The Secretary of State
Power exercisable by:Statutory instrument
Parliamentary Procedure:Negative resolution (either House of Parliament)
Other relevant provisions:Clauses 85, 87, 154 and 155(1) of the Bill

296.  Clause 87(4) is concerned with the factors that the Secretary of State must have regard to and may not have regard to exercising his power under clause 85 to provide essential living needs. Clause 87(4)(a) provides a power to prescribe matters which he must have regard to and clause 87(4)(b) a power to prescribe matters which he may not have regard to.

297.  For example, the power under clause 87(4)(a) might be used to provide that the Secretary of State must have regard to certain medical, cultural or religious needs (requirement for special and dearer food, for instance). The power under clause 87(4)(b) might be used to provide that the Secretary of State may not have regard to a person's lack of means to pay for replacement clothing (except in the case of children) unless the period of support extends beyond a specified period.

298.  It is submitted that these are matters which are appropriately dealt with in delegated legislation since they are detailed and will vary according to experience and circumstances.

299.  Under clause 155(1), "prescribed" means prescribed in regulations made by the Secretary of State. Under clause 154 the power is exercisable by statutory instrument subject to annulment by either House. It is also submitted that the negative procedure provides an appropriate level of Parliamentary control, given the relatively limited nature of the power.

CLAUSE 88(1): POWER TO MAKE FURTHER PROVISION WITH RESPECT TO THE POWER IN CLAUSE 85 TO SUPPORT DESTITUTE ASYLUM SEEKERS AND THEIR DEPENDANTS
Power conferred on: The Secretary of State
Power exercisable by:Statutory instrument
Parliamentary Procedure:Negative resolution (either House of Parliament)
Other relevant provisions:Clauses 85, 88 and 154 of the Bill

300.  Clause 88(1) gives the Secretary of State power to make regulations making further provision with respect to his power under clause 85 to support destitute asylum seekers and their dependants. Effectively, this power enables the Secretary of State to set out the detail of the operation of the asylum support scheme.

301.  The rest of clause 88 sets out particular matters that may be covered by the regulations. Regulations under clause 88(2)(a) may make provision for the circumstances in which the Secretary of State would be expected to provide support in accordance with prescribed levels or of a prescribed kind, for example, support of £x would be provided to an adult and £y to a child. Regulations under clause 88(2)(b) may make provision for the circumstances in which the Secretary of State would be expected to provide support other than in accordance with the prescribed levels, for example, a child with a particular medical condition.

302.  Under clause 88(3), the regulations may make provision for the Secretary of State, when deciding whether to provide support and the level or kind of support to be provided, to take into account support (or assets) available to the person concerned, for example, support from friends or relatives or investments held by them. The Regulations may prescribe exceptions to this principle.

303.  Under clause 88(4) the regulations may make provision for the Secretary of State, when deciding whether to provide support and the level or kind of support to be provided, to take into account the extent to which any condition on which support is being provided has been complied with. (Clause 85(9) provides that support may be provided subject to conditions.)

304.  Under clause 88(5), the regulations may make provision for the suspension or discontinuation of support in prescribed circumstances, for example, if the asylum seeker has destroyed the accommodation provided to him. Clause 88(6) makes it clear that the prescribed circumstances under clause 88(5) may also include the circumstances where a person ceases to live in accommodation provided under clause 85 or at the address that he has notified the Secretary of State of.

305.  Under clause 88(7) the regulations may make provision with respect to procedural requirements. A number of the requirements that may be included in the regulations are set out on the face of the Bill, such as the procedure to be followed in making an application for support.

306.  Finally, under clause 88(8) the regulations may make provision for particular items or services to be provided for particular purposes to those supported under Part VI. English lessons or leisure items might, for example, be provided under this power, which will be used to cover items which are not essential living needs.

307.  These regulations will require an extensive level of detail and for that reason it is submitted it is an appropriate use of delegated legislation. When dealing with matters such as these, flexibility is required to make adjustments in the light of experience and circumstances.

308.  Under clause 154 the power is exercisable by statutory instrument subject to annulment by either House. It is submitted that the negative procedure provides sufficient Parliamentary control for this power. The purpose of the delegated power is to expand on and provide the detail of the fundamental power in clause 85 to support destitute asylum seekers and their dependants which will have been the subject of extensive Parliamentary control. Further, to provide greater transparency and Parliamentary scrutiny as to the way that power is to be exercised than could be given by policy announcements or guidance.

CLAUSE 91(5): POWER TO DIRECT THE FORM AND MANNER IN WHICH INFORMATION MUST BE PROVIDED TO THE SECRETARY OF STATE BY A LOCAL AUTHORITY ABOUT ITS HOUSING ACCOMMODATION
Power conferred on: The Secretary of State
Power exercisable by:Direction
Parliamentary Procedure:None
Other relevant provisions:Clauses 85 and 91 of the Bill

309.  Part VI of the Bill gives the Secretary of State power to provide or arrange for the provision of accommodation for destitute asylum seekers and their dependants. Under clause 91, local authorities (and other similar bodies) must co-operate with the Secretary of State if he requests their support in providing such accommodation. In particular, if requested to do so by the Secretary of State, they must supply information about their housing accommodation. Under clause 91(5), the Secretary of State has the power to direct the form and manner in which this information must be provided. This power might be used, for example, to direct that the information is to be sent to a particular address, that it is to be provided on a standard form or that it must be received within two weeks of the request being brought to the attention of the local authority.

310.  This power is needed to ensure that the Secretary of State receives the information to which he is entitled swiftly, and in a form which will enable him to make effective use of it, so that he is in a position to exercise his power to provide accommodation for destitute asylum seekers. It is submitted that, since it is envisaged that this power will be used simply as a means of specifying practical detail, Parliamentary control is unnecessary.

CLAUSE 92(1): POWER TO DESIGNATE AN AREA CONSISTING OF THE AREAS OF ONE OR MORE LOCAL AUTHORITIES AS A RECEPTION ZONE
Power conferred on: The Secretary of State
Power exercisable by:Statutory instrument
Parliamentary Procedure:Negative resolution (either House of Parliament)
Other relevant provisions:Clauses 85, 92 and 154 of the Bill

311.  It is hoped that local authorities will volunteer their spare housing to accommodate those who are provided with support under clause 85 of the Bill. However, if local authorities refuse to co-operate with the Government in this way, it will be necessary to use the provisions of clause 92.

312.  Clause 92(1) gives the Secretary of State power to make an order designating an area consisting of one or more local authorities as a reception zone. Once a local authority is within a designated reception zone and the Secretary of State considers that the local authority has unoccupied housing accommodation appropriate for Part VI purposes within that zone, clause 92(4) gives the Secretary of State power to direct the local authority to make specified accommodation available for the purposes of providing support under clause 85.

313.  It is appropriate that the designation of areas as reception zones is delegated because it is intended that this should only be done as a last resort. It would therefore be inappropriate to designate reception zones on the face of the statute. There may be a need to adjust the limits of zones, once designated, from time to time.

314.  Under clause 154 the power is exercisable by statutory instrument subject to annulment by either House. It is submitted that the negative procedure provides an appropriate level of Parliamentary control. It is to be noted that clause 92(2) puts the Secretary of State under an obligation to consult with local authorities before exercising the power in clause 92(1).

CLAUSE 92(8): POWER TO MAKE REGULATIONS ABOUT THE MANAGEMENT OF HOUSING WHICH IS SUBJECT TO A DIRECTION UNDER CLAUSE 92(4)
Power conferred on: The Secretary of State
Power exercisable by:Statutory instrument
Parliamentary Procedure:Negative resolution (either House of Parliament)
Other relevant provisions:Clause 154 of the Bill

315.  As stated above, clause 92 is intended to be used only as a last resort, if local authorities refuse to co-operate with the Government by providing spare accommodation for asylum support purposes. In such cases, the Secretary of State may create a reception zone covering one or more local authorities (clause 92(1)) and direct local authorities to provide specified accommodation for asylum support purposes (clause 92(4)).

316.  Clause 92(8) puts the Secretary of State under a duty to make regulations concerning the way such accommodation is to be managed. Clause 92(9) provides that the regulations must include provision for the calculation of rent and other charges, the timing of payment of rent and other charges, responsibility for maintenance and repairs and inspection by the local authority.

317.  These are matters of detail which are more suitably dealt with in delegated legislation than in primary legislation.

318.  Under clause 154 the power is exercisable by statutory instrument subject to annulment by either House. It is submitted that the negative procedure provides an appropriate level of Parliamentary control.

CLAUSE 95(1): POWER TO MAKE RULES CONCERNING APPEALS TO THE ASYLUM SUPPORT ADJUDICATORS
Power conferred on: The Secretary of State
Power exercisable by:Statutory instrument
Parliamentary Procedure:Negative resolution (either House of Parliament)
Other relevant provisions:Clause 154 of the Bill

319.  Clause 94 provides a right to appeal to an Asylum Support Adjudicator against a decision by the Secretary of State that an individual does not qualify for support under clause 85; or to withdraw support. Clause 95(1) provides a power to make rules regulating the bringing of appeals and the practice and procedure of the Asylum Support Adjudicators. Clause 95(2) sets out particular issues about which the rules may make provision. Under clause 95(3) the Secretary of State must have regard, in making the rules, of the need to ensure their swift determination.

320.  It is submitted that it is appropriate for detailed rules in relation to appeals procedures to be made in delegated legislation rather than in primary legislation. Also, it is important that there is flexibility in relation to matters of procedure so that any difficulties which emerge when the rules are put into practice can be swiftly resolved.

321.  Under clause 154 the power is exercisable by statutory instrument subject to annulment by either House. It is submitted that the negative procedure provides an appropriate level of Parliamentary control.

322.  Section 22 of the 1971 Act makes similar provision for procedural rules in relation to the regulation of appeals against decisions on asylum claims brought under the 1971 Act. These rules are made by delegated legislation using the negative procedure.

CLAUSE 105(4): POWER TO MAKE PROVISION FOR METHODS OF RECOVERING OVERPAYMENTS OTHER THAN BY DEBT ACTION
Power conferred on: The Secretary of State
Power exercisable by:Statutory instrument
Parliamentary Procedure:Negative resolution (either House of Parliament)
Other relevant provisions:Clause 154 of the Bill

323.  Clause 105 makes provision for the situation where support has been provided to a person under clause 85 as a result of an error on the part of the Secretary of State. Clause 105 provides that the Secretary of State may recover from such a person an amount equivalent to the monetary value of the support that was provided. The amount may be recovered as if it were a debt owing to the Secretary of State. By virtue of clause 105(4), the Secretary of State may also make provision for other methods of recovery, including deductions from support provided under clause 85.

324.  It is submitted that it is appropriate for this to be done by way of delegated legislation. If the Secretary of State decides to exercise his power under clause 105(4) and make provision, for example, for deductions to be made from support provided under clause 85 in order to recover overpayments, he will need to take into account the numerous ways in which support may be provided in order to ensure that, in any particular case, the effect of reducing levels of support is not to render the person concerned destitute. It is submitted that the place for setting out such details is delegated legislation.

325.  Under clause 154 the power is exercisable by statutory instrument subject to annulment by either House. Given the matter is one of detail, it is submitted that negative procedure provides an appropriate level of Parliamentary control.

CLAUSE 106(3): POWER TO SPECIFY CLASSES OF PERSON WHO ARE NOT TO BE SUBJECT TO CLAUSE 106
Power conferred on: The Secretary of State
Power exercisable by:Statutory instrument
Parliamentary Procedure:Negative resolution (either House of Parliament)
Other relevant provisions:Clauses 154 and 155(1) of the Bill

326.  Clause 106(4) sets out the meaning of "a person subject to immigration control". The definition is crucial to clauses 106 to 112 of the Bill which exclude persons subject to immigration control from various provisions of social security and housing legislation, for example, under the Social Security Contributions and Benefits Act 1992. The definition of a person subject to immigration control would mean most asylum seekers would be caught - they are to be supported under Part VI of the Bill rather than under the legislative provisions set out in clauses 106 to 112. The definition also extends to other non-EEA nationals, who are thus excluded from being supported at public expense whilst in the UK.

327.  Clause 106(3) gives the Secretary of State the power to prescribe categories or descriptions of person, or persons satisfying certain conditions who will not be subject to clause 106; and who therefore will not be subject to the exclusions from welfare benefits it provides for. Nor will they be subject to the other relevant exclusions in clauses 107 to 112. It is envisaged that this power will be used, for example, in respect of foreign students whose income source temporarily ceases as a result of a coup in their home country; and those who have entitlements under the European Convention on Social and Medical Assistance.

328.  It is submitted that it is appropriate to use delegated legislation for this purpose. It is essential that there is flexibility to reapply the provisions of social security and housing legislation, perhaps at short notice, to enable particular groups with particular needs to be supported. There will be a need to adjust the provision made from time to time in the light of circumstances.

329.  Under clause 155(1), "prescribed" means prescribed in regulations made by the Secretary of State. Under clause 154 the power is exercisable by statutory instrument subject to annulment by either House. It is submitted that the negative procedure provides an appropriate level of Parliamentary control. The impact of clause 106(3) on the individuals who fall within the prescribed categories will be beneficial since it will enable them to be provided with support otherwise denied to them. It is not expected that the exercise of the power in clause 106(3) will have any serious financial implications on the basis that the number of people involved will be small.

CLAUSE 109(1)(A): POWER TO SPECIFY CLASSES OF PERSON WHO MAY BE PROVIDED WITH HOUSING ACCOMMODATION UNDER PART II OF THE HOUSING ACT 1985 AND THE EQUIVALENT LEGISLATION IN SCOTLAND AND NORTHERN IRELAND
Power conferred on: The Secretary of State
Power exercisable by:Statutory instrument
Parliamentary Procedure:Negative resolution (either House of Parliament)
Other relevant provisions:Clauses 109 and 154 of the Bill and section 9 of the 1996 Act

330.  Clause 109 provides that local housing authorities in England and Wales must secure that, so far as practicable, a tenancy under Part II of the Housing Act 1985 is not granted to a person subject to immigration control. Clause 109 makes equivalent provision for Scotland and Northern Ireland. A person subject to immigration control is defined in clause 109(7) as a person who requires leave to enter or remain in the United Kingdom under the 1971 Act.

331.  There are two exceptions to this general rule. Clause 109(1)(a) allows such tenancies to be granted to individuals who fall within a class that is specified in an order made by the Secretary of State. Clause 109(1)(b) allows such tenancies to be granted in accordance with arrangements made by local housing authorities with the Secretary of State under clause 80 for the support of asylum seekers and their dependants.

332.  The power contained in clause 109(1)(a) comes from section 9(1) of the 1996 Act. It is expected that similar use will be made of the new power as was made of the power in section 9(1). For example, persons subject to immigration control (as defined in clause 109(7)) to whom clause 106 does not apply.

333.  It is submitted that a delegated power is appropriate for this purpose because it enables clause 109 to be operated in a flexible manner. Without it, there would be no means of disapplying clause 109 in suitable cases, as in the example given above of overseas students.

334.  Under clause 154 the power is exercisable by statutory instrument subject to annulment by either House. It is submitted that the negative procedure is provides an appropriate level of Parliamentary control. It is to be noted that the power to make orders in section 9(1) of the 1996 Act is subject to the negative procedure.

CLAUSE 110(1): POWER TO SPECIFY CLASSES OF PERSON WHO ARE NOT TO BE EXCLUDED FROM SCOTTISH AND NORTHERN IRISH HOMELESSNESS LEGISLATION
Power conferred on: The Secretary of State
Power exercisable by:Statutory instrument
Parliamentary Procedure:Negative resolution (either House of Parliament)
Other relevant provisions:Clause 154 of the Bill

335.  Clause 110 excludes from homelessness legislation in Scotland and Northern Ireland persons who are subject to immigration control. A person subject to immigration control is defined in clause 109(7) as a person who requires leave to enter or remain in the United Kingdom under the 1971 Act. However, there is an exception to this general principle for those who fall within a class that is specified in an order made by the Secretary of State.

336.  This power is taken from section 9(2) of the 1996 Act and it is expected that similar use will be made of the power in clause 110(1) as was made of the power in section 9(2) of the 1996 Act, so that, for example, those recognised as refugees would be specified.

337.  Under clause 154 the power is exercisable by statutory instrument subject to annulment by either House.

338.  It is submitted that a power is appropriate for these purposes and that the negative procedure provides an appropriate level of Parliamentary control, for the same reasons as were advanced in relation to the power under clause 109(1)(a) above.

CLAUSE 113(10): POWER TO PRESCRIBE CIRCUMSTANCES IN WHICH THE LOCAL AUTHORITY'S DUTY TO PROVIDE ASSISTANCE UNDER THE CHILDREN ACT 1989 APPLIES ALONGSIDE THE SECRETARY OF STATE'S DUTY TO SUPPORT ASYLUM SEEKER FAMILIES UNDER CLAUSE 113
Power conferred on: The Secretary of State
Power exercisable by:Statutory instrument
Parliamentary Procedure:Negative resolution (either House of Parliament)
Other relevant provisions:Clauses 84, 85(8), 113, 154 and 155(1) of the Bill and section 17 of Children Act 1989

339.  Clause 113 makes provision for the support of asylum seeker families. The Secretary of State is under a duty to offer, and if his offer is accepted, to provide adequate accommodation and essential living needs for a child who is in need. If the Secretary of State complies with this duty (or if he would comply with the duty if an application were made to him), clause 113(5) provides that the duty on local authorities under section 17 of Children Act 1989 to provide accommodation and essential living needs to asylum seeker families does not apply.

340.  Clause 113(10) gives the Secretary of State power to prescribe circumstances in which clause 113(5) is not to apply, thus allowing local authorities to provide accommodation and essential living needs to asylum seeker families in particular circumstances even though the families in question are receiving support under Part VI of the Bill.

341.  This power is needed in order to provide flexibility, particularly as regards the provision of essential living needs. There is no definition of what constitutes a person's essential living needs for the purposes of Part VI, but there is a power (clause 85(8)) to prescribe that particular items or expenses are or are not to be treated as an essential living need. As previously explained, it is intended that this power should be used to set the limits of the concept of essential living needs. Regulations made under this power will apply to all those being supported under Part VI, whether adults or children. However, it may be that, in the context of supporting children, and in particular circumstances, local authorities would be better placed to provide some of these items. Furthermore, once the Part VI scheme is in operation, it may become apparent that the pattern of support being provided to children in particular circumstances varies from the level of support that they would have received under the Children Act. In these cases, the power under clause 113(10) might be invoked. However, there are currently no plans to use the power.

342.  It is submitted that the negative procedure provides an appropriate level of Parliamentary control for the purposes of this power, the exercise of which simply allows local authorities as well as the Secretary of State to provide the relevant support.

CLAUSE 114: POWER TO MAKE REGULATIONS TO ENABLE THOSE RECOGNISED AS REFUGEES TO CLAIM BENEFITS TO WHICH THEY WOULD HAVE BEEN ENTITLED IF THEY HAD BEEN RECOGNISED AS REFUGEES WHEN THEY MADE THEIR CLAIMS FOR ASYLUM
Power conferred on: The Secretary of State
Power exercisable by:Statutory instrument
Parliamentary Procedure:Negative resolution (either House of Parliament)
Other relevant provisions:Clause 154 of the Bill

343.  Clause 114 enables a scheme whereby asylum seekers who are recognised as refugees (and their dependants) can apply for back-dated benefits by way of compensation for the benefits that they would have received had they been recognised as refugees as soon as they had made their claim for asylum. Clause 114(2) gives the Secretary of State the power to make regulations to set the period within which the person must make the claim and to set the proportion of benefits to which the person is entitled. The regulations may prescribe the local authority which is to pay housing and council tax benefit if the refugee has resided in the areas of two or more local authorities (clause 114(5)) and require a local authority that is not the prescribed authority to supply the prescribed authority with information in connection with the exercise of their functions under the regulations (clause 114(6)). The regulations may also provide for the sum to which a person would be entitled to be reduced by the whole or a prescribed proportion (to be prescribed in the regulations) of the value of the support which he received under Part VI (clause 114(7)).

344.  These matters are appropriately dealt with in delegated legislation because of the level of detail that is required. The principles behind the regulations are set out in clause 114 and the regulations will be used to provide the detail of the scheme. It is to be noted that an almost identical scheme was set up in subsections (2) to (6) of section 11 of the 1996 Act which left the details to be explained in regulations.

345.  The power is exercisable by regulations made under the various Acts specified in subsection (9). This follows the precedent of section 11(6) of the 1996 Act. The relevant regulations are subject to negative procedure (annulment by resolution of either House) under those Acts. It is submitted that it is appropriate the regulations should adopt the applicable procedures under those Acts, as the present power simply extends what those regulations may provide for.

CLAUSE 117(3): POWER TO SET REQUIREMENTS CONCERNING THE PROVISION OF INFORMATION ABOUT PREMISES IN WHICH ACCOMMODATION IS OR HAS BEEN PROVIDED FOR ASYLUM SEEKERS AND THEIR DEPENDANTS
Power conferred on: The Secretary of State
Power exercisable by:Statutory instrument
Parliamentary Procedure:Negative resolution (either House of Parliament)
Other relevant provisions:Clauses 154 and 155(1) of the Bill

346.  Clause 117 allows the Secretary of State to require the owner or manager of property provided to accommodate asylum seekers and their dependants under Part VI of the Bill to supply him with information about the premises and the persons occupying the premises. Clause 117(3) gives the Secretary of State power to set requirements concerning the provision of this information, for example, the level of detail required and the time within it which it must be supplied once the request has been made.

347.  The power in clause 117(3) will be used to set out matters of practical detail which are best placed in delegated legislation.

348.  Under clause 155(1), "prescribed" means prescribed in regulations made by the Secretary of State. Under clause 154 the power is exercisable by statutory instrument subject to annulment by either House. It is submitted that the negative procedure provides an adequate level of Parliamentary control for this purpose.

CLAUSE 118(2): POWER TO SET REQUIREMENTS CONCERNING THE PROVISION OF INFORMATION ABOUT REDIRECTION OF POSTAL PACKETS TO ADDRESSES OTHER THAN THOSE INDICATED ON THE PACKETS
Power conferred on: The Secretary of State
Power exercisable by:Statutory instrument
Parliamentary Procedure:Negative resolution (either House of Parliament)
Other relevant provisions:Clauses 154 and 155(1) of the Bill

349.  Clause 118 gives the Secretary of State power to require anyone conveying postal packets to give him information about arrangements that have been made for their redirection, in order to enable the Secretary of State to prevent or detect offences under Part VI or otherwise trace and check on asylum seekers who are in receipt of support under Part VI.

350.  Clause 118(2) gives the Secretary of State power to set out the manner and form in which such information must be provided and other requirements for the provision of the information.

351.  As with the power under clause 117, these are matters of practical detail that belong in delegated legislation.

352.  Under clause 155(1), "prescribed" means prescribed in regulations made by the Secretary of State. Under clause 154 the power is exercisable by statutory instrument subject to annulment by either House. It is submitted that the negative procedure gives Parliament adequate control over this (limited) power.


 
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