Local Authorities:
Overview of Duties owed to Children
Speaker: David Vavrecka, Coram Chambers
Copyright
David Vavrecka March 2005-All rights
reserved.
No part of this document may
be copied or used without the written permission
of the author.
Immigration status and access to support
1.
The basic rule – the founding principle of
immigration law, is derived from section 1,
Immigration Act 1971 (which is still the
framework Act for immigration control
despite heave amendment):
S1(1) All those who are in this act
expressed to have the right of abode in the
United Kingdom shall be free to live in and
to come and go into and from, the United
Kingdom …
(2) Those not having that right may live
work and settle in the United Kingdom by
permission and subject to such regulation
and control of their entry into, stay in and
departure from the United Kingdom as is
imposed in this Act ….
2.
The key concept is ‘immigration
control: this is exclusive in nature:-
everyone is excluded unless they are either:
(a) not subject to immigration control –
this applies to British citizens (not
British nationals) and EAA citizens who have
rights of entry
OR :
(b) are granted permission, called
leave to enter the UK – basically everyone
else
European Union: free movement
3. All
community nationals have rights of residence
on member states, other than the state of
nationality, and these rights extend to
their families; this means if they have a
valid travel document and are not subject to
any public policy constraints (public
policy, public health or public security)
they are admitted without leave.
4. These
rights of free movement of nationals of
member states and their families was
implemented by the Immigration (European
Economic Areas) Regulations 2000[1]
and as at 1 May 2004 the member states are
Austria, Belgium, Cyprus, Czech
Republic, Denmark, Estonia, Finland, France,
Germany, Greece, Hungary, Ireland, Italy,
Latvia, Luxembourg, Malta, Netherlands,
Poland, Portugal, Slovak Republic, Slovenia,
Spain, Sweden and UK
5. The
following are not members of the European
Union, but members states of the European
Economic Area: Iceland, Norway and
Liechtenstein.
6.
Switzerland remains outside both agreements
but has negotiated comparable free movement
rights for its nationals on a reciprocal
basis, and its nationals are treated in UK
law as EAA nationals
7.
Bulgaria and Romania hope to join in 2007.
8. Nationals
from the accession countries can if working,
and having registered with the Home Office
within one month of starting work in UK,
access same benefits and housing support as
other EEA workers[2];
those not working not generally entitled to
that support
Non EAA nationals or British citizens
9.
Those entering UK, if they are subject to
immigration control, must always get leave
to enter and remain here. The different
circumstances in which persons may apply for
leave from outside the UK and from inside
(e.g. switching from one immigration
category to another, or extending leave
previously granted) are set out in the
Immigration Rules.
10.
Over
the past decade, the ability of those
entering the UK to access benefits has been
progressively eroded: most recently
Immigration & Asylum Act 1999 (s.115
introduced an extended definition of
‘subject to immigration control’ which
defined those excluded from certain
entitlements, and introduced a new ‘asylum
support scheme’ to deal with destitute
asylum seekers) and Asylum and Immigration
(Treatment of Claimants etc) Act 2004
11.
Those
subject to immigration control cannot
generally obtain the following forms of
welfare support:
non-contributory social security benefits
local authority housing
residential accommodation and the board and
services provided
under section 21 National Assistance Act
1948
Common requirements
of the Rules
12.
Immigration into
UK
almost always contingent on requirement that
person be able to maintain and accommodate
themselves, or with children, that they will
be maintained and accommodated without
recourse to public funds
13. Public
funds defined in para 6 of the Rules: For
the purposes of these Rules, a person is not
to be regarded as having (or potentially
having) recourse to public funds merely
because he is (or will be) reliant in whole
or in part on public funds provided to his
sponsor, unless, as a result of his being in
the UK, the sponsor is (or would be)
entitled to increased or additional public
funds
14. Public
Funds includes:
a.
Housing: accommodation as a homeless person
and accommodation from a local authority
register
b.
Benefits: income support/income-based
jobseekers allowance, housing benefit,
council tax benefit, working families tax
credit, disabled person’s tax credit, child
benefit, attendance allowance, severe
disablement allowance, invalid care
allowance, disability living allowance
