Are asylum seekers with care needs eligible for legal help?
The short answer is yes. Local authorities have a duty to assess all people seeking assistance, including refused asylum seekers, if they appear to be in need of care services. The access and level of support, in most cases, should be determined by the assessment, not their immigration status. If their application for protection has been successful, they are entitled to receive provision on the same basis as UK residents.
Similarly, asylum seekers who have been detained under s.3 of the Mental Health Act should be, upon discharge, able to receive aftercare under s.117. But how is this delivered?
Accommodation and adjustments
Most asylum seekers will be placed in accommodation provided under the National Asylum Support System (NASS). The properties commissioned under this scheme rarely have adjustments which people with disabilities require. Therapy and care are difficult to provide in the settings which, apart from four walls, provide little else. This situation may be made worse for those who, like the majority of migrants, do not speak fluent English or require help from a sign language interpreter.
Local authorities have a duty to provide accommodation to asylum seekers if their assessment shows that they need specific care in residential settings which private landlords cannot easily provide. Existence of a care need should not alone be a barrier to dispersal in accordance with the long-established practice, but will make it difficult because of the general shortage of places in properties adapted for residents with special needs. Accommodation may be provided in a particular area, on request, for those who require continuity of care either because they enjoyed it in their country of origin or after a discharge from hospital as well as release from prison.
The same entitlement should exist in immigration detention centres although, in practice, this may be unavailable owing to the intended purpose of such facilities. The growing number of claims for unlawful detention is indicative of the systemic failure to remove people without immigration issues quickly and efficiently often because of the manifestly unlawful decisions to deprive them of personal liberty. This must mean that people with identified care needs in immigration detention could make legitimate requests for care arrangements.
Carers and direct payments
When the care is being provided by a family member or friend, their immigration status should be taken into account to help the local authority decide whether to continue to rely on the carer’s help to meet the person’s needs. In many cases, relying on care provided by friends or family will be their preference and the best way to improve their wellbeing. This will frequently be the most cost-effective option for the local authority.
However, where a carer has no leave to enter or remain, the local authority would need to ensure that the situation is regularly reviewed, as such an arrangement could break down at short notice if the carer is dispersed, detained or removed from the UK by the Home Office. The immigration status of a carer who has limited leave to remain may also change if a future application is unsuccessful and this should be recorded in the care plan. The person receiving care should be advised to contact social services as soon as they are aware of a change of circumstance that may impact on their carer’s ability to continue providing them with care. Friends and family members providing care may also require a carer’s assessment and there should not be any barrier to providing care by way of direct payments and personal budgets. The local authority may undertake a separate assessment and seek legal advice as to whether withholding of support would violate the human rights of the person with care needs and will consider whether payments could be denied on the basis of certain exclusions such as those for overstayers or failed asylum applicants without outstanding claims or appeals.
What can be done if the care needs have not been met?
In practice, the local authorities may delay care provisions in some cases owing to the uncertainty of the immigration status of those with eligible care needs. In other words, the delay may be motivated by the desire to use the scarce resources only for those whose entitlement is unquestionable or, in a small number of cases, until all prospects of removal to the country of origin have been exhausted. However, implementation of care plans should not be delayed and migrants with unsatisfied care needs may have to issue proceedings and seek public law remedies. The majority of people in this category are likely to be eligible for legal aid.
