Strangers at the Welfare Gate: Asylum-Seekers' 'Welfare' and Convention Rights after Adam

As in other countries, the UK has continued to ratchet up restrictions on access to its welfare support systems, including benefits, healthcare and Community Care services, as a means of managing migration and asylum, and facilitating removal. As the article considers, in the pursuit of these objectives, eligibility for take-up of employment and State welfare support has become inextricably linked to new and more restrictive forms of immigration status. An issue that is discussed, and which is less clear, is whether the paradigm still extends to providing a minimum floor of support for all entrants to the UK, including those who may still be contesting 'status' decisions. In many cases needy claimants may be awaiting a decision on their application for ‘refugee’ status - but within a radically reconfigured and restrictive support regime. Or has the agenda has moved on, so that it focuses on an altogether different ‘perspective’? This has been described by one senior judge as ‘can we reduce the number of arrivals by building disincentives into the provision of support, with an emphasis on ‘control of numbers’ - what he described as an essentially ‘political goal'.

The article goes on to consider the position whereby, until recently, there were few legal constraints on take-up of benefits and services linked to nationality or immigration status. Such restrictions as generally focused on whether a visitor or resident from overseas had sufficient National Insurance contributions for contributory benefits, and whether they had ‘ordinary residence’ or ‘presence’ in Great Britain - the main criteria for eligibility for non-contributory or means-tested benefits rather than nationality, citizenship or status requirements. This prompted one commentator to observe that immigration law impinged ‘hardly at all on the provision of benefits and services in the UK’ and that ‘the post-war Welfare State doctrine of Beveridge, Bevan and Butler was one of equal access to benefits and services for all those in need regardless of immigration status’.

The article tracks and discusses continuing inroads into the regime that provides support for migrants and refugees, and the introduction of status barriers and 'reciprocity' requirements as the tools for introducing further restrictions. The article looks at the 'habitual residence' test and a more recent variant, the ‘right to reside’. These are developments proving to be particularly problematic in a range of contexts, including the periods when overseas visitors from other EU States are looking for work, or while they are working in low-paid work and establishing the minimum period of continuous employment required before they can establish eligibility under EU and UK requirements.

In the asylum-seeker context, consideration is given to a recent decision of the House of Lords, R (Adam and Others) v Secretary of State for the Home Department, which has clarified the circumstances in which the withdrawal of state welfare support amounts to ‘treatment’ that infringes a claimant's rights under Article 3 of the European Convention on Human Rights. Since October 2000 this will generally render such action 'unlawful' in Public Law terms, specifically a result of section 6 of the Human Rights Act 1998. However, access to even the most basic necessities of life (as Lord Bingham described them in Adam) will continue to depend on judges' continuing willingness to strict construe statutory limitations on social rights and welfare support, and their ability to deploy key Convention articles like article 3 - something which has become essential in the face of an increasingly restrictive statutory regime, with lawyers being driven to make emergency applications in the Administrative Court to overturn decisions of Home Office, local authorities, and other agencies concerned with asylum claimants' welfare. As the article concludes, however, whilst the result in Adam plainly helpful in the maintenance of a right to basic social protection for asylum claimants and dependants, the integrity of the UK's asylum system and claimants' ability to pursue claims, the precise scope of this judicially protected ‘right’ is uncertain.