No Home from Home - Statewatch · September 2009 ISBN 1 903681 80 4 Foreword No Home from Home is a response to the Commission’s concern about the vulnerability of certain categories

No Home from HomeHomelessness for People with No or

Limited Access to Public Funds

No Home from HomeHomelessness for People with

No or Limited Access to Public Funds

Roisin Devlin and Sorcha McKenna

© Northern Ireland Human Rights CommissionTemple Court, 39 North Street, Belfast BT1 1NATel: (028) 9024 3987 Fax: (028) 9024 7844

Textphone: (028) 9024 9066 SMS Text: 07786 202075Email: [email protected] Website: www.nihrc.org

September 2009ISBN 1 903681 80 4

Foreword

No Home from Home is a response to theCommission’s concern about the vulnerability ofcertain categories of non-UK nationals todestitution. Just as British and Irish people havetravelled the globe, people come here for a numberof reasons: to find work, to join family, to seekasylum, to study, or to make a better life forthemselves and their families. Moving to a newcountry brings with it many social, cultural andfinancial challenges and inevitably some people willfind themselves in difficulty. This report examinessome of the problems which may arise, includingdomestic violence, ill-health, disability, exploitationand racial intimidation. Asylum seekers andrefugees will also experience their own particularproblems.

In Northern Ireland, a complex mix of EuropeanUnion and domestic immigration law means thathomelessness assistance is not available tonon-UK nationals in a number of situations. Thepotential for any person to be rendered vulnerableand potentially destitute by legislation is a serioushuman rights concern. No Home from Homeexamines the law in relation to homeless non-UKnationals living in Northern Ireland. The report alsolooks in particular at the policy, practice andresponses of the Northern Ireland HousingExecutive, the Health and Social Care Trusts andthe Social Security Agency.

As this report was being finalised, Northern Irelandbecame the focus of global media attention as aresult of the racist attacks against members of theRoma community. However, following the racistattacks, although homeless, the legislation meantthat the victims were not entitled to welfarebenefits or homelessness assistance. It was toolate to investigate the responses as part of thisreport; however, the Commission is aware that theNorthern Ireland Housing Executive and the Healthand Social Care Trust worked side by side with thevoluntary agencies in providing support andassistance. This is an example of the interagencyco-operation that the investigators had hoped to

find during this investigation. On this occasion, theHousing Executive took ownership of a piece oflegislation which allowed it to temporarilyaccommodate the families and financially assistwith their return to Romania. However, thisepisode served as a stark illustration of the urgentneed for legislative change and clear guidance onthe responsibilities of statutory bodies for non-UKnationals facing homelessness.

No Home from Home is aimed at raising awarenessof the complex issues facing certain non-UKnationals and the gaps in terms of assistanceavailable to those who become homeless and whoare excluded from statutory support. Ultimately, asthe report shows, the barriers exist because of theway in which UK legislation is currently designed.Many of the recommendations are therefore aimedat the Government and, where appropriate, at theNorthern Ireland Assembly and Executive.Homelessness and destitution are not the soleremit of any one of the statutory agenciesinvestigated. However, each has a role to play toensure that all possible avenues to support areexplored.

The Commission would like to acknowledge theassistance of the management and staff of thestatutory agencies who co-operated in fullthroughout the investigation. In addition, theCommission is grateful to the voluntary andcharitable organisations which contributed greatly,in both time and knowledge, to this investigation. Iwould also like to thank the authors of this report,Roisin Devlin and Sorcha McKenna, both of whomare experienced investigators in the Commission.Above all, I would like to thank those individualswho shared their personal experiences ofhomelessness with the investigators. I hope thatthrough their contribution, the Commission can helpto secure future recognition and protection of therights of homeless non-UK Nationals.

Professor Monica McWilliamsChief Commissioner

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No Home from Home – Homelessness for People with No or Limited Access to Public Funds

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Acknowledgements

The authors would like to express their thanks toeveryone, both within and outside of the NorthernIreland Human Rights Commission, who contributedto this investigation. Each of the three governmentagencies involved and their staff were extremelyco-operative and obliging throughout the fieldwork.

Appendix 3 includes a list of the wide range ofNGOs whose contribution to this report wasinvaluable. In particular, the authors would like topay special tribute to the individuals who entrustedthem with their personal experiences ofhomelessness and destitution in Northern Ireland.

Contents

Foreword ......................................................................................................... 3Acknowledgements.......................................................................................... 4Acronyms......................................................................................................... 6Executive summary .......................................................................................... 71. Introduction............................................................................................ 112. Human rights standards and destitution.................................................. 16

Agency findings

3. Northern Ireland Housing Executive ........................................................ 264. The Trusts .............................................................................................. 465. Social Security Agency ........................................................................... 60

Thematic findings

6. Exploitation and immigration rules .......................................................... 757. Refugees and asylum seekers................................................................. 898. Domestic violence .................................................................................. 1039. Ill-health and disability ............................................................................ 11510. Racial intimidation .................................................................................. 129

11. Conclusions and recommendations......................................................... 140

References ...................................................................................................... 149Appendices

1. Methodology .......................................................................................... 1522. Glossary ................................................................................................ 1573. List of organisations .............................................................................. 159


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Acronyms

CRC Convention on the Rights of the Child

DHSSPS Department of Health, Social Services, and Public Safety

DSD Department for Social Development

EC European Community

ECHR European Convention on Human Rights

EU European Union

HSS Housing Selection Scheme

ICCPR International Covenant on Civil and Political Rights

ICESCR International Covenant on Economic, Social and Cultural Rights

ICERD International Convention on the Elimination of All Forms of Racial Discrimination

IOM International Organisation of Migration

JCHR Joint Committee on Human Rights

NFA No Fixed Abode

NGO Non-governmental organisation

NIHE Northern Ireland Housing Executive

PSNI Police Service of Northern Ireland

SSA Social Security Agency

UDHR Universal Declaration on Human Rights

UKBA United Kingdom Border Agency

CEDAW Convention on the Elimination of All Forms of Discrimination Against Women

WRS Worker Registration Scheme

In this report, the terms, ‘UK national’ and ‘non-UK national’ are defined as follows:

• ‘UK national’ refers to all British and/or Irish nationals residing in the United Kingdom.

• ‘Non-UK national(s)’ is used to refer to individuals who are not nationals of the United Kingdom and/orIreland.

To protect confidentiality, the case studies in this report do not use real names.


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and interviewed staff, community/voluntaryagencies and homeless non-UK nationalsacross the three geographical areas.

4. During the write-up of the investigation,using the information gathered, theCommission submitted evidence to the UKBorder Agency, outlining concerns about theWorker Registration Scheme (WRS). Themain investigation findings, including thoserelating to the WRS, are presented in thisreport.

5. The report outlines, in Chapter 2, the humanrights standards that apply to homelessnessand destitution. While states must realiseprogressively, to the maximum of theirresources, the right to an adequate standardof living, there are certain minimumstandards that ought to be met immediately.Therefore, legislation that deliberatelyexcludes individuals from the basic means ofshelter and subsistence is difficult toreconcile with basic human rights standards.

6. The investigation findings are presented intwo parts. The ‘agency findings’ discussesthe findings that are specific to the threegovernment agencies, as listed above. The‘thematic findings’ raise particular concerns,namely, those relating to exploitation,refugee and asylum seekers, domesticviolence, ill-health and disability, and racialintimidation.

7. Chapter 3 discusses the legislation thatgoverns the NIHE’s response tohomelessness and focuses on theday-to-day approach to non-UK nationalapplicants. It finds that the legislativecriterion unduly limits the response tohomeless and potentially destitute non-UKnationals, meaning that in many cases non-UK nationals are simply ineligible forhomelessness assistance. It also finds that,

1. In the context of growing concerns aboutthe potential for destitution among non-UKnationals, the Commission decided in 2007to conduct an investigation intohomelessness and people with no, orlimited, access to public funds. It wished todetermine the practical impact of existingimmigration legislation which limited accessto public funds for non-UK nationals living inNorthern Ireland. A particular concern waswhether the legislation and its day-to-dayinterpretation were leading to destitutionamong non-UK nationals.

2. The Commission’s investigators thereforelooked at all categories of non-UK nationalsin Northern Ireland, including people fromthe European Union, the new accessionstates, asylum seekers, unaccompaniedminors and other people from outside of theEuropean Economic Area. There was aparticular concern about the additionalvulnerability to destitution for victims ofdomestic violence, exploitation or racialintimidation. Similarly, the Commission wasanxious to learn about the inter-relationshipbetween ill-health and disability anddestitution. In an effort to ensuregeographical scope, the investigationcovered three areas – Belfast, Cookstownand Dungannon. Three governmentagencies were identified as having greatestresponsibility for homelessness anddestitution – the Northern Ireland HousingExecutive (NIHE), the Social Security Agency(SSA) and the Health and Social CareTrust(s) (the Trust(s)).

3. Terms of reference were issued to thegovernment agencies in May 2008 andfieldwork began in June 2008. UntilNovember 2008, the investigators collectedinternal agency documents, reviewed casefiles, observed agency/client interactions


Executive summary

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destitute non-UK nationals is often limitedby legislation barring access to welfarebenefits.

12. However, even with the legislativerestrictions, there are a number ofimprovements in relation to day-to-daypractices which could better protect therights of non-UK nationals. For example,interviews with SSA staff revealed the needfor greater awareness of human rights. Inaddition, recording within SSA case filescould be improved so that signposting ofineligible non-UK nationals to the NIHE, theTrusts, or to the Social Fund is evidenced.

13. Chapter 6 presents concerns regarding UKimmigration rules and the potential for theserules to exacerbate the consequences ofexploitation. As a result of restrictiveimmigration rules, victims of exploitation aremade all the more vulnerable because theycannot access homelessness assistance andwelfare benefits. Particular issues arise inrelation to the Worker Registration Schemethat applies to the majority of A8 nationalswho come to work in the UK. Theinvestigation uncovered examples ofexploitation, including examples ofindividuals who had worked in the UK forseveral months being denied benefitbecause they did not register on the WorkerRegistration Scheme.

14. Also, in relation to exploitation, theinvestigation encountered three incidencesof what would appear to be trafficking forlabour. In two instances, the victims tookpart in an interview for this investigation.Their experiences show how UK immigrationrules have prevented them from accessingsupport after escaping their allegedtraffickers.

in many respects, individual staff memberswork exceptionally hard to ensure thatdespite the legislative restrictions, non-UKnational applicants receive some form ofemergency help.

8. However, it is apparent that improvementscan be made. For example, the investigationrecommends greater human rightsawareness among NIHE staff and improvedrecording of decisions in relation to theeligibility of non-UK national applicants. Inaddition, the practice of the NIHE could befurther improved through development of amore robust referral process, ensuring thatineligible non-UK nationals are directed tothe relevant Trust so that they can beassessed to establish if they are entitled tosocial care assistance.

9. Chapter 4 presents the findings for theTrusts. Again, overall, many of these stemfrom the restrictive legislative criteria.Nevertheless, unlike the other agenciesconsidered for this investigation, Trusts mayhave a duty of care to support non-UKnationals, for example, where failure to doso would result in a breach of their rightsunder the European Convention on HumanRights.

10. The investigation found many examples ofgood practice from individual staff.However, there was an absence of guidanceand training for Trusts in relation to destitutenon-UK nationals. The investigation findsthat in all cases, and particularly for non-UKnational adults, the development ofcomprehensive guidance would ensure thatthe Trusts’ response is greatly improved.

11. Chapter 5 discusses the outcomes of theinvestigation relating to the Social SecurityAgency. Again, as with the other agencies,it is clear that the response of the SSA to


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Rule, which is a concession made for certainvisa nationals to ensure that, on proof ofrelationship breakdown due to domesticviolence, the victim is entitled to accesshomelessness assistance and welfarebenefits. While noting the benefits, gapsstill exist despite the development of thisrule.

18. Among the government agencies, theinvestigation uncovered a lack of interagencyco-operation in relation to non-UK nationalvictims of domestic violence. To improvethis, agencies should work together toensure that ‘ineligible’ non-UK nationals arereferred to Trusts so that they can beassessed for assistance. Again, while thereare examples of Trust support, there is anabsence of guidance on how social workersshould respond to this issue. Althoughgovernment agencies refer victims ofdomestic violence to voluntaryorganisations, there was a lack ofrecognition regarding potential fundingdifficulties, where often, voluntary groupsare not permitted to put core funding towardsupporting ‘ineligible’ non-UK nationals.

19. The investigation finds that legislation whichprohibits access to public funds presentsparticular difficulties for people withill-health or who have a disability. Theseconcerns are presented in Chapter 9 andshow how illness can lead to a break inWorker Registration and subsequenthomelessness due to an inability to accesspublic funds. ‘Rough sleeping’ due to lack ofhomelessness assistance has resulted inillness to an extent warranting significantperiods of in-patient hospital care. This isfurther exacerbated by the absence ofaccommodation and welfare benefits ondischarge, which prevents appropriateaftercare.

15. The circumstances of refugee and asylumseekers are discussed in Chapter 7. Whileasylum seekers are generally provided withsupport, known as NASS (National AsylumSupport Service), legislative restrictions statethat there are circumstances in which eventhis basic level of support can be removed.However, as found by the House of Lords inLimbuela, this must not occur where it islikely that removal of support will result indestitution to an extent engaging Article 3 ofthe European Convention on Human Rights(freedom from inhuman and degradingtreatment).1 The Chapter outlines concernsfor failed asylum seekers, in particular singlepersons, who are less likely to be entitled tosupport on becoming destitute. Thissituation could be improved if individualswere entitled to work while awaiting travelarrangements to leave the UK.

16. Chapter 7 also discusses the currentresponse in Northern Ireland tounaccompanied asylum-seeking children(UASC). There is evidence that Trusts areproviding support in these cases and thereare examples of good practice on the part ofindividual staff in this respect. However,there is a lack of guidance and training onthis issue. In addition, in emergencysituations, Trusts have on occassionresponded by placing these children ininterim bed and breakfast accommodationand this raises particular concerns includingthat of child protection.

17. Domestic violence and specific issues fornon-UK nationals with no, or limited, accessto public funds are reported in Chapter 8.This shows how victims are financiallydependent on their partner due toimmigration rules, which restrict non-UKnational victims’ access to public funds. Theinvestigation outlines the Domestic Violence


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1 R v Secretary of State for the Home Department (Appellant) ex parte Adam; R v Secretary of State for the Home Department (Appellant) ex parte Limbuela; R v Secretary ofState for the Home Department (Appellant) ex parte Tesema (Conjoined Appeals) [2005] UKHL 66.

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20. Although there are examples of goodpractice from individual social workers, thereis a need for guidance in relation to destitutenon-UK nationals presenting with illness ordisability. Moreover, while Trusts have beenknown to offer ill or disabled non-UKnationals travel assistance to return to theircountry of origin, guidance is required toensure transparent and consistentdecision-making in relation to this process.

21. Chapter 10 presents findings relating toracial intimidation. Two issues areconsidered. First, the situation of non-UKnationals who have experienced racialintimidation but are ineligible forhomelessness assistance is examined.Here, the report considers if the legislationrelating to ineligible non-UK nationals iscompatible with international human rightsstandards and, in particular, adequate toprevent the inherent risk to life. The chapterincludes case studies of victims of racialintimidation who are refused homelessnessassistance due to the ‘no recourse to publicfunds’ rule. Second, the NIHE’s approach toracial intimidation is examined. Usinginformation from case files and interviewswith NIHE staff, recommendations are madeso that, across all district offices, theapproach to homelessness claims based onracial intimidation is improved.

22. Chapter 11 concludes the investigationreport and finds that, overall, the legislationis unduly weighted towards regulation ofimmigration without adequate regard for therights of destitute non-UK nationals. In lightof this, the Commission makes a number ofrecommendations under three mainheadings:

1. Legislative amendments

2. Government agency practices, and

3. Specific areas of concern• exploitation and UK immigration rules• refugees and asylum seekers• domestic violence• ill-health and disability, and• racial intimidation

23. The main recommendation is that theGovernment’s approach in this area shouldmirror international human rights standards.Therefore, the Commission recommendsthat, regardless of nationality or immigrationstatus, everyone within the territory of theUK should have access to an adequatestandard of living sufficient for that personand their dependents. It furtherrecommends that public authorities shouldtake all appropriate measures, includinglegislative measures, to the maximum oftheir available resources, with a view toachieving progressively the full realisation ofthis right. In particular, no one should beallowed to fall into destitution. For thepurpose of ensuring theserecommendations, the Government shouldensure that everyone has access toappropriate emergency accommodation. Inaddition, the Commission is of the view that,pending overarching legislativeamendments, there are alterations thatgovernment agencies can make to theirday-to-day practices to better improve thehuman rights protection of homeless andpotentially destitute non-UK nationals.

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Introduction 1


The power to investigateThe Northern Ireland Human Rights Commission(the Commission) was established under theNorthern Ireland Act 1998. This Act provides theCommission with the power to conductinvestigations under section 69(8).

To date, the Commission has carried outinvestigations into women in prisons, juvenilejustice and immigration detention. The currentinvestigation into homelessness and people withno, or limited, access to public funds is theCommission’s first in the area of socio-economicrights. In addition, it is the first investigation sincethe introduction of the Justice and Security(Northern Ireland) Act 2007, which, in amending theNorthern Ireland Act, provided the Commissionwith new powers of investigation, to compelevidence and to access places of detention.

Why investigate homelessness?Having conducted a number of investigationsfocusing primarily on civil and political rights, theCommission felt that it was important to conductan investigation into an area of socio-economicrights. Following an initial scoping study, theCommission decided to pursue an investigation intohomelessness and, more specifically, people withno, or limited, access to public funds. Whilerecognising that all homeless people are vulnerable,the Commission found that legislation prohibitingaccess to homelessness assistance and welfarebenefits for certain non-UK nationals meant that, asa group, they were particularly disadvantaged. Inaddition, the investigation was undertaken in thecontext of growing concerns among communityand voluntary groups about the vulnerability ofmigrants to poverty and homelessness. Clearminimum international protections exist in relationto an adequate standard of living, which includeshousing, and the Commission was concerned thatanyone living in destitution would be at risk of apotential violation of their human rights.

In Northern Ireland, a complex mix of EuropeanUnion (EU) and domestic law means that as well asno, or restricted, access to public funds, non-UKnationals are ineligible for homelessness assistancein a number of situations. These situations include:

• Immigration control – section 119 of theImmigration and Asylum Act 1999 providesthat, in general, individuals subject toimmigration control are ineligible forassistance under homelessness provisions inNorthern Ireland (unless they fall within anexcepted category).

• ‘Persons from abroad’ – the Allocation ofHousing (Eligibility) Regulations (NorthernIreland) 2006, as amended, provide that,apart from individuals subject to immigrationcontrol, a person from abroad is ineligible forhousing assistance if they are not habituallyresident in the UK, or if the right to residederives only from their status as a jobseekeror from the Treaty right to reside for an initialperiod of up to three months after arrival.

• A8 and A2 accession states – for the mostpart, nationals from these states are deniedhomelessness assistance if they do notregister their employment, or if they do notcomplete 12 months continuousemployment under the Worker RegistrationScheme (WRS) or Worker Authorisation forA2 nationals.

• Asylum applicants – asylum seekers andrefused asylum applicants may be deniedsupport under asylum legislation (mainly theImmigration and Asylum Act 1999 and theNationality, Immigration and Asylum Act 2002).

• Family members – often the rights of familymembers to homelessness assistance candepend on their relationship to, and theemployment status of, the mainapplicant/worker.

The Commission’s investigators designed theirresearch methodology to incorporate and explorethese issues.

Geographical scope of theinvestigationThe investigation focused on three geographicalareas – Belfast, Dungannon and Cookstown. Theinvestigators began by including Belfast which,given its ports and airports, is the main point ofentry into Northern Ireland. They then used theNIHE’s scoping study to identify those areas withhigher concentrations of migrants, which includedDungannon and Cookstown. During the course ofthe investigation, these three areas proved to beadditionally useful as it became apparent that thepredominant category of migrant differed in eacharea. In Belfast there were more asylum seekersdue to its proximity to the airports than, forexample, in Dungannon, where there was a longestablished Portuguese community, many of whomhave been resident in Northern Ireland for up to 10years. Cookstown, by contrast, had a higherconcentration of new A8 nationals who tended tobe accommodated in the private rented sectorrather than in public sector housing. The use of thethree locations allowed the investigators not only toexplore the issues facing different categories ofmigrants, but also to compare and contrast thepolicies and practices of the three governmentagencies (described below) operating acrossBelfast, Cookstown and Dungannon.

The scale of the problemThis report is unable to provide comprehensivefigures as to the number of homeless non-UKnationals in Northern Ireland. The data simply doesnot exist and a significant number of homelesspeople are undetected by government agencies.Therefore, the investigation relied on a collection ofgovernment agency case files and interviews withstaff, voluntary agencies and homeless individuals,

At the time of scoping the investigation, a mappingexercise by the Northern Ireland Housing Executive(NIHE) estimated that for the 12 months up to the31 July 2007, there were 469 homelessapplications from migrant workers in NorthernIreland.2 In the previous year, a policy paper byConcordia revealed that restrictions on emergencyaccommodation and housing benefit for migrantworkers prevented essential help and support. Thereport stated “…circumstantial evidence fromvoluntary organisations supporting migrant workerssuggests that this is contributing to considerablehardship in certain cases”.3 A more recent (2007)compendium by ANIMATE shows that while theNIHE provides homelessness advice and referrals,the ability to offer housing for the most vulnerablemigrants is indeed barred by legislation.4 Theoverall result is that access to housing andhomelessness assistance in Northern Ireland is notinclusive. The Commission was thereforeconcerned with the restrictive legislation and alsothe impact of day-to-day practices anddecision-making by statutory bodies on non-UKnationals who are at risk of destitution.

Causes and consequences ofhomelessnessFrom the initial scoping stages of the investigation,the Commission recognised that destitution has anumber of interwoven causes and consequencesfor the individual. In reviewing the literature andconducting initial meetings with community andvoluntary organisations, a number of key areas ofconcern were identified, including:

• restrictive immigration legislation

• exploitation

• relationship breakdown/domestic violence

• ill-health and disability, and

• racial intimidation.


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2 Northern Ireland Housing Executive (2007) Black and Minority Ethnic and Migrant Worker Mapping Update, NIHE, p 43.

3 Concordia (2006) Migrant Workers in Northern Ireland, Concordia Partnership for Progress, Dungannon, p 13.

4 Holder D (2007) Issues Facing Migrant Workers in Northern Ireland: A Research Compendium of Animate and Partner Research 2004-7, ANIMATE, Dungannon and SouthTyrone, p 57.

three areas of Belfast, Cookstown and Dungannon.The figures are not therefore reflective of the totalnumber of homeless non-UK nationals presenting togovernment agencies across Northern Ireland.While there is the potential for cases to overlapbetween the agencies, it was not possible for theinvestigators to trace a case from one governmentagency to another. However, the investigators didnot detect overlap in the cases reviewed.

Although it is not possible to reflect accurately thescale of homelessness among non-UK nationals,the investigators are of the opinion that thenumbers in Northern Ireland experiencingdestitution is likely to be in the high hundreds,rather than thousands. While this may be low incomparison to other parts of the UK, the potentialfor destitution among non-UK nationals in NorthernIreland is of considerable concern.

The agenciesThree government agencies were identified ashaving the greatest relevance to the issue ofhomelessness and people with no, or limited,access to public funds. The obvious starting point,in relation to housing crisis, is the NIHE, the bodywith statutory responsibility for allocating socialhousing, paying housing benefit and providinghomelessness advice and assistance. The SocialSecurity Agency (SSA) is the government agencywhich provides advice and information on welfareentitlement, and is responsible for the payment ofsocial security benefits. Access to welfare benefitsis of importance to this investigation becauseentitlement to certain benefits can potentiallyprovide a route to homelessness assistance.Similarly, a denial of entitlement to, for example,Jobseeker’s Allowance could mean a person isdenied access to housing support. Finally, theinvestigators identified the Health and Social CareTrusts as relevant to the investigation because theymay be able to provide assistance under thestatutory provisions for ‘people in need’ and have aclear duty of care to children.

in order to build a picture of the scale of theproblem in Northern Ireland. The informationprovided at Table 1.1 is by no meanscomprehensive and is likely to under-represent thescale of the problem. However, the figuresillustrate that this is not an insignificant issue forNorthern Ireland.Table 1.1 Voluntary organisation service use

by non-UK nationals

* includes women accommodated with children, and single women

The above table includes only those organisationswhich provided recorded figures to theinvestigators. However, in addition, severalorganisations provided the investigation with anaverage of six case examples, stating thathomelessness and destitution is a significantproblem for their non-UK national clients.Table 1.2 Statutory agency figures on non-UK

national homeless cases

* includes only those who were ‘No Fixed Abode’ or in hostelaccommodation at the time of the application and does not takeaccount of those who may, as a result of a negative benefitdecision, have been made homeless

**Only two cases were from 2006

The figures (above) include only those case filesreviewed by the Commission’s investigators in the


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Organisation Time frame No of homelessclients

Homeless hostel 1 Aug 07 - May 08 164

Advice organisation 1 Sep 07 - Sep 08 10

Advice organisation 2 May 07 - Jan 08 20

Day centre Jan 07 - Jan 08 29

Homeless hostel 2 Apr 07 - Mar 08 23

Refuge May 06 - Aug 08 56*

Agency Time frame Homelesscases reviewed

Social Security Agency Aug 07 - Aug 08 11*

Housing Executive Aug 06 - Aug 08** 112

Trusts Aug 07 - Aug 08 10

5 For a more detailed methodology, see Appendix I.

In summary, the investigators:

• conducted over 60 interviews withgovernment staff across 32 offices

• reviewed 132 NIHE case files

• reviewed 124 SSA case files

• reviewed 10 Trust case files

• observed seven agency/client interviews

• interviewed over 30 community andvoluntary organisation workers

• carried out telephone surveys with over20 hostels

• interviewed 14 homeless individuals, and

• collected internal documents, guidance, andpolicy from all three agencies.

The first chapter of this investigation report isintroductory. Chapter 2 examines the human rightsstandards which are relevant to destitution. Theinvestigation findings are presented in twosections. The first of these looks at the systematicissues (Chapters 3 to 5) with regard to the threegovernment agencies. Each agency is examined inturn, with specific focus on its responsibility withregard to homelessness and the guiding legislationand policy. Individual chapters provide the findingswhich resulted from interviews with managementand staff, case file reviews, observation ofstaff/client interactions, analysis of internalguidance, case studies and client experiences. Thechapters explore the level of training and guidanceavailable to staff, the general practices anddecision-making, staff attitudes to non-UK nationalclients, knowledge of human rights, interagencyco-operation and the relationship betweenstatutory and voluntary agencies.

The second section of the findings (Chapters 6 to10) deals with thematic issues, which wereidentified as contributors to, or resulting from,destitution – both, in some cases. In each case,the section examines the thematic issue in thecontext of the role, responsibility and response of

In preparing for the investigation, the Commissionfound that people with no, or limited, access topublic funds can be denied even this basic level ofprotection and, as a result, non-UK nationals canbecome homeless and destitute. The Commissionrecognised that the restrictive nature of thelegislation had a strong bearing on whether anon-UK national might become destitute. It alsorecognised that the interpretation andimplementation of the legislation might also havean impact on the extent to which non-UK nationalsare assessed for, and/or provided with, assistance.The investigators, therefore, focused onestablishing the policy and guidelines in relation tohomelessness and people with no, or limited,access to public funds as well as the day-to-daypractices and decision-making across the threegovernment agencies.

At present, it remains the case that applications forassistance by homeless non-UK nationals continueto make up a smaller proportion of the workload ofthe government agencies. However, in general,greater concentrations of applications are receivedin those areas of Northern Ireland with a highermigrant population.

The reportThe investigation is a largely qualitative study. Thefindings are based on semi-structured interviewswith government agency staff, voluntary sectororganisations and non-UK nationals. In thisrespect, the experiences of staff, voluntary sectororganisations and non-UK nationals have beenfundamental to the findings contained in this report.In addition, to semi-structured interviews, a sampleof case files from each government agency wasrequested and reviewed.5

This report is the result of a yearlong investigationwhich, as the methodology section outlines,included an extensive period of fieldwork with threegovernment agencies across the three locations, aswell as interviews with over 30 community andvoluntary groups and 14 homeless individuals.


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Throughout the report, the investigators identifyboth good and poor practice and makerecommendations to address various issues ofconcern. In order to avoid overlap ofrecommendations between the three agencies, theCommission’s conclusions and recommendationsare contained in the final chapter of this report. Inlight of the systematic and thematic issues in thereport, Chapter 11 provides detailedrecommendations to each of the governmentagencies. It also makes recommendations forlegislative change.

the relevant government agencies and, whereappropriate, identifies problems with existinglegislation. Chapter 6 provides an analysis ofcurrent immigration legislation as it relates tomigrant workers from the European Union and newaccession states, as well as to people subject toimmigration control. The chapter demonstrates thepotential inter-relationship between restrictivework-related legislation and homelessness andincludes examples of worker exploitation. Chapter7 looks at the particular issues facing asylumseekers and refugees and sets out the entitlementto welfare benefits and homeless support atdifferent stages of the asylum process. Thechapter also provides an overview of theentitlement and experiences of unaccompaniedminors in Northern Ireland. Chapter 8 deals withdomestic violence and highlights the barriers toprotection and support faced by non-UK nationalvictims as a result of their inability to access publicfunds. Chapter 9 highlights the problems causedby ill-health and disability, which the investigatorsfound can lead to destitution through an inability towork. In addition, this chapter notes how illnesscan result from destitution due to the impact ofpoverty on physical and psychological wellbeing.The last of the thematic chapters looks at racialintimidation as a factor leading to homelessness.Particular attention is given to the decision-makingof the NIHE, as it determines whether reportedincidents of violence, abuse or threats, amount to‘intimidation’ for the purposes of re-housing anindividual or a family.


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Immigration and human rightsIt is legitimate for states to seek to regulateimmigration and to restrict entry by those who donot have a right of residence. However,international human rights standards are clear thatany mechanism to regulate migration, and theconsequences of that mechanism, must be clearlyset out by law, be proportionate and necessary in ademocratic society, and be in pursuance of alegitimate aim.

Additionally, once an individual gains entry to astate, she or he is entitled to full protection by thatstate of those human rights that cannot berestricted or interfered with. In particular,immigration rules that infringe upon ‘absolute’rights, namely, the right to life (Article 2 of theECHR) or the right to be free from inhuman ordegrading treatment or torture (Article 3 of theECHR), should never be justified by the state’s needto regulate migration. Article 2 of the UnitedNations’ Declaration on the Human Rights ofIndividuals Who are not Nationals of the Country inwhich They Live, states:

Nothing in this Declaration shall be interpreted aslegitimizing the illegal entry into and presence in aState of any alien, nor shall any provision beinterpreted as restricting the right of any State topromulgate laws and regulations concerning the entryof aliens and the terms and conditions of their stay orto establish differences between nationals and aliens.However, such laws and regulations shall not beincompatible with the international legal obligations ofthat State, including those in the field of human rights.

Therefore, human rights standards should form thebasis against which the state’s immigration lawsare assessed. Laws that place an absoluteprohibition on access to public funds incircumstances where the individual is destitute, orat risk of destitution, are unlikely to be justifiable onhuman rights grounds.

IntroductionThere are many human rights instrumentsapplicable to individuals who are homeless and atrisk of destitution. These rights generally applyirrespective of nationality or citizenship, and formminimum standards against which the Commissioninvestigates the treatment of homeless non-UKnationals who are prevented from accessing publicfunds. This report does not provide an exhaustiveaccount of human rights standards; however, therelevant human rights instruments include, amongothers, the European Convention on Human Rights(ECHR), the International Covenant on Economic,Social and Cultural Rights (ICESCR), the InternationalCovenant on Civil and Political Rights (ICCPR) and theInternational Convention on the Elimination of AllForms of Racial Discrimination (ICERD). Theapplication of these human rights instruments tonon-UK nationals, who are homeless and at risk ofdestitution, is detailed below.

There are other human rights instruments whichform the basis for the thematic findings of thisinvestigation, such as the United Nations’ (UN)Convention on the Elimination of All Forms ofDiscrimination Against Women (CEDAW), the UN’sConvention on the Rights of the Child (CRC), theCouncil of Europe’s Convention on Action againstTrafficking in Human Beings, and the UN’s ConventionRelating to the Status of Refugees. These arecovered in more detail later in this report.

The ECHR is the only human rights instrument thatis directly incorporated into UK law (through theHuman Rights Act 1998) and is, therefore, the onlyone that is directly judicially enforceable. Inaddition, all international treaties to which the UK isa party, including those referenced in this report,are legally binding. It should be noted that as anational human rights institution, the Commission ismandated to consider all international and regionalhuman rights standards when conducting itsfunctions.


2 Human rights standards and destitutionThe High Contracting Parties shall secure to everyone within their jurisdiction the rights andfreedoms defined in Section I of this Convention. (Article 1, ECHR)

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reference to the principle of progressive realisationor lack of recourses. Discrimination in relation tothe enjoyment of ICESCR rights by non-citizens willonly be justified if the measure in question isadequately prescribed in law, in pursuance of alegitimate aim and proportionate in terms ofachieving that aim. Measures will generally not beregarded as proportionate if they deny an individualthe basic means of subsistence.6

All of this must be borne in mind when consideringthe ICESCR rights that apply to non-UK nationalswho are homeless and at risk of destitution. Themost relevant right in this context is that to anadequate standard of living, contained in Article11(1). This includes the rights to adequate housingand to adequate food:

11(1). The States Parties to the present Covenantrecognize the right of everyone to an adequatestandard of living for himself and his family, includingadequate food, clothing and housing, and to thecontinuous improvement of living conditions.

General Comment 4, on the right to adequatehousing, establishes that this right applies withoutdiscrimination and should be given a wideinterpretation:

[...] the right to housing should not be interpreted in anarrow or restrictive sense which equates it with, forexample, the shelter provided by merely having a roofover one’s head [...]. Rather it should be seen as theright to live somewhere in security, peace and dignity.(paragraph 7)

In addition, the Committee makes clear that, evenduring economic recession, states ought not toregress on measures established to protect theright to adequate housing and must continue toafford particular consideration for those living inunfavourable conditions:

International standardsEconomic, social and cultural rights

State parties to the ICESCR must guarantee therights contained within the Covenant for “allpeoples”. Although Article 2(3) permits restrictionson these rights for those who are not nationals ofthe State, this applies solely to developing nationsand, even then, only in relation to economic (butnot social or cultural) rights. States are obliged toprogressively realise the rights within the ICESCR,using the maximum of their available resources(Article 2(1)). However, there are minimumobligations that, regardless of resources, the statemust protect. For example, in General Comment 3on the nature of states parties’ obligations underArticle 2(1), paragraph 10 states:

[...] a minimum core obligation to ensure thesatisfaction of, at the very least, minimum essentiallevels of each of the rights is incumbent upon everyState party. Thus, for example, a State party in whichany significant number of individuals is deprived ofessential foodstuffs, of essential primary health care,of basic shelter and housing, or of the most basicforms of education is, prima facie, failing to dischargeits obligations under the Covenant.

Consequently, among the core obligations thatattract immediate protection, are rights to basicsubsistence such as essential foodstuffs, basicshelter, and housing.

Article 2(1) provides for the enjoyment of ICESCRrights without discrimination as to race, colour, sex,language, religion, political or other opinion,national or social origin, property, birth or otherstatus. This right to non-discrimination in theenjoyment of economic, social and cultural rights isnot subject to the principle of progressiverealisation, nor is it limited according to the state’sresources. This means that discrimination withinthe state in relation to the enjoyment of economic,social and cultural rights is not justified by


17

6 See: Cholewinski R (1998) ‘Enforced destitution of asylum seekers in the United Kingdom: the denial of fundamental human rights’, International Journal of Refugee Law,10(3), 462-498, at 493.

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States parties must give due priority to those socialgroups living in unfavourable conditions by givingthem particular consideration. Policies and legislationshould correspondingly not be designed to benefitalready advantaged social groups at the expense ofothers. The Committee is aware that external factorscan affect the right to a continuous improvement ofliving conditions, and that in many States partiesoverall living conditions declined during the 1980s.However, [...] despite externally caused problems; theobligations under the Covenant continue to apply andare perhaps even more pertinent during times ofeconomic contraction. It would thus appear to theCommittee that a general decline in living and housingconditions, directly attributable to policy andlegislative decisions by States parties, and in theabsence of accompanying compensatory measures,would be inconsistent with the obligations under theCovenant. (paragraph 11)

In addition to Article 11, Article 9 provides the rightto social security. General Comment 19, relating tothis right, makes it clear that the right to socialsecurity, within the meaning of Article 9, includesthe right to non-contributory benefits that comprisevarious forms of state based social assistance.Therefore, Article 9 includes:

Non-contributory schemes such as universal schemes(which provide the relevant benefit in principle toeveryone who experiences a particular risk orcontingency) or targeted social assistance schemes(where benefits are received by those in a situation ofneed). In almost all States parties, non-contributoryschemes will be required since it is unlikely that everyperson can be adequately covered through aninsurance-based system. (paragraph 4(b))

The right to social security is inextricably linked tothe right to adequate housing. Therefore, socialassistance should include access to shelter wherethe individual is destitute. Paragraph 22 of GeneralComment 19 states:

Benefits, whether in cash or in kind, must be adequatein amount and duration in order that everyone mayrealize his or her rights to family protection andassistance, an adequate standard of living andadequate access to health care, as contained inarticles 10, 11 and 12 of the Covenant.

In relation to non-citizens, the Committee’sconcluding observations show that social servicesmay be required to ensure a minimum standard ofliving.7 In the concluding observations on the thirdperiodic report of Ukraine, the Committee stated:

The Committee notes with concern that social servicesare not adequate to ensure a minimum standard ofliving for the most vulnerable groups, including [...]non-citizens. (paragraph 19).

Civil and political rights

The ICCPR contains numerous human rightsprovision which apply to homeless non-UKnationals at risk of destitution. As with the ICESCR,the rights contained within the ICCPR apply withoutdiscrimination to ‘everyone’ within the state’sterritory, including non-citizens. The only exceptionis in relation to the enjoyment of political rights andfree movement rights, which can be limited fornon-citizens. The Human Rights Committee’sGeneral Comment 15, on the position of aliens,states that, although there is no right for anindividual to enter a state, once in the territory ofthe state, the individual is entitled to the enjoymentof ICCPR rights without discrimination. Paragraph 7outlines the rights of non-citizens, many of whichare relevant to this issue of homelessness anddestitution:

Aliens thus have an inherent right to life, protected bylaw, and may not be arbitrarily deprived of life. Theymust not be subjected to torture or to cruel, inhumanor degrading treatment or punishment; nor may theybe held in slavery or servitude. […] They may not besubjected to arbitrary or unlawful interference withtheir privacy, family, home or correspondence. [...]

7 Office of the United Nations High Commissioner for Human Rights (2006) The Rights of Non-citizens, UN, New York, p 25; CESCR Concluding Observations on the ThirdPeriodic Report of Ukraine, 28 December 1995, E/C 12/1995/15.

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Their children are entitled to those measures ofprotection required by their status as minors. [...]There shall be no discrimination between aliens andcitizens in the application of these rights. [...]

The rights that may have particular relevance to theUK’s domestic rules, which deliberately excludecertain categories of non-UK nationals fromhomeless support and welfare benefits, include theright to life (Article 6), the right to be free frominhuman and degrading treatment (Article 7), andthe right to private and family life (Article 17). Inaddition, Article 26 of the ICCPR is relevant. Thiscontains a freestanding equality provision, which isnot limited to the rights contained in the Covenant.

Elimination of racial discrimination

Although ICERD contains human rights provisions,some of which apply universally and some tocitizens only, the UN Committee on the Eliminationof Racial Discrimination makes clear that differentialtreatment between citizens and non-citizensconstitutes discrimination unless it is proportionaland pursuant to a legitimate Convention aim.8 In itsGeneral Comment 30, on discrimination againstnon-citizens, the Committee provides anauthoritative statement on the obligations of statesparties in relation to the enjoyment of basic humanrights by non-citizens. Particularly relevant to therights of non-citizens to homelessness assistance,the Committee recommends that state parties:

Review and revise legislation, as appropriate, in orderto guarantee that such legislation is in full compliancewith the Convention, in particular regarding theeffective enjoyment of the rights mentioned in Article5, without discrimination.9

Article 5 requires state parties to prohibit andeliminate racial discrimination, and to guarantee theright of everyone to equality before the law, inparticular in the enjoyment of various civil, political,economic, social and cultural rights as specified in

Article 5(a) to (e). Article 5(e)(iii) guarantees theright of everyone, without distinction as to race,colour, or national or ethnic origin, to equalitybefore the law, notably in the enjoyment of theright to housing. Domestic laws prohibiting accessto public funds for non-UK nationals have thepotential to preclude enjoyment of this rightwithout discrimination. Where exclusion fromservices in this way leads to the denial of the basicmeans for subsistence, such differential treatmentis unlikely to be viewed as proportionate orlegitimate within the meaning of the Convention.

Rights of migrant workers

It is also important to draw attention to theInternational Convention on the Protection of theRights of All Migrant Workers and Members of TheirFamilies. Although the UK has not yet ratified thisConvention, it contains internationally acceptedstandards, establishing basic norms to ensureprotection of migrant worker rights. Article 43, forexample, requires that migrant workers enjoy equaltreatment in respect of access to housing.

Regional instrumentsEuropean Social Charter

The scheme of the European Social Charter of 1961is that contracting parties must agree to be boundby at least five of the following Articles:

• Article 1, the right to work

• Article 5, the right to organise

• Article 6, the right to bargain collectively

• Article 12, the right to social security

• Article 13, the right to social and medicalassistance, and

• Article 19, the right of migrant workers andtheir families to protection and assistance.

8 General Recommendation No 30 (General Comments): Discrimination Against Non-citizens, Office of the High Commissioner for Human Rights, 1 October 2004.

9 Above, para 6.

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There are various other Articles which the statemay accept provided that the total number is notless than 10.

The Government has not accepted Article 19 inrelation to the special protection for migrants andtheir families. Nevertheless, the right to socialsecurity and the right to social and medicalassistance – rights that are binding – apply tomigrants who are nationals of a state party to theESC and are useful in the context of homelessnessand potential destitution.10 Although the right tosocial security within Article 12 refers tocontributory based benefits, the rights to social andmedical assistance are to ensure that:

[…] any person [being a national of a ContractingParty to the ESC] who is without adequate resourcesand who is unable to secure such resources either byhis own efforts or from other sources, in particular bybenefits under a social security scheme, be grantedadequate assistance.

Notably, the revised European Social Charter, whichhas not been ratified by the Government, adds anew Article 31 on the right to housing. Thisprovides:

With a view to ensuring the effective exercise of theright to housing, the Parties undertake to takemeasures designed:1. to promote access to housing of an adequate

standard;2. to prevent and reduce homelessness with a view

to its gradual elimination;3. to make the price of housing accessible to those

without adequate resources.

This provision would arguably ensure betterprotection for non-UK nationals who are homelessbut currently excluded from various forms of publicsupport.

Domestic lawECHR and Human Rights Act 1998

The Human Rights Act 1998 (HRA) incorporates themajority of the provisions of the ECHR intodomestic law. The Act states that public bodiesmust act in compliance with the ECHR rights asinterpreted via the developing jurisprudence of theEuropean Court. In addition, when consideringprimary legislation, the courts must, as far aspossible, interpret this to ensure compatibility withthe ECHR. If this is not possible, the courts areempowered to issue a ‘declaration ofincompatibility’ on the basis that a particularlegislative provision contravenes one or more of therights contained within the ECHR. If an offendingprovision is contained within secondary legislation,the courts have jurisdiction to override it, providedthat this does not interfere with the continuingoperation of related primary legislation.

The ECHR does not include a right to adequatehousing or food, or the right to social security.Nevertheless, the existence of these rights hasbeen interpreted from the meaning of otherprovisions within the Convention. Below, theapplicability of the ECHR to homeless non-UKnationals, who are excluded from homelessnesssupport and benefits, are outlined.

Article 2: Right to life

1. Everyone’s right to life shall be protected by law.No one shall be deprived of his life intentionally[…]

Lack of access to public funds may have seriousimplications for the wellbeing and survival of thosewho are homeless and destitute. While a generalright to housing, food, or financial subsistence,does not exist within the meaning of Article 2 ofthe ECHR, it is possible that the state may havepositive obligations toward destitute personsrequiring it to provide assistance in order to avoidviolation of the right to life. In Osman v UK, the

10 The appendix to the ESC states: “Without prejudice to Article 12, paragraph 4, and Article 13, paragraph 4, the persons covered by Articles 1 to 17 include foreigners onlyinsofar as they are nationals of other Contracting Parties lawfully resident or working regularly within the territory of the Contracting Party concerned […]”.

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European Court stated that, in certaincircumstances, the right to life requires states toundertake positive obligations:11

The Court notes that the first sentence of Article 2 § 1enjoins the State not only to refrain from theintentional and unlawful taking of life, but also to takeappropriate steps to safeguard the lives of thosewithin its jurisdiction.

The state is not accountable for all risks to life;however, it may become responsible where there isa real and imminent risk to life in circumstanceswhere the state knows, or ought to know, aboutthe risk.12 It is, therefore, not inconceivable that,where a homeless non-UK national presents tostate agencies, in circumstances where destitutionrepresents a serious risk to her or his life, or to thelife of the family, legislative exclusions preventingbasic assistance may potentially engage the rightto life.13

Article 3: Freedom from inhuman anddegrading treatment

No one shall be subjected to torture or to inhuman ordegrading treatment or punishment.

The European Court of Human Rights sets a highthreshold in order to establish a violation of thestate’s obligation to ensure against inhuman anddegrading treatment. In the case of Pretty v UK,the Court stated: “treatment is inhuman ordegrading if, to a seriously detrimental extent, itdenies the most basic needs of any humanbeing”.14 In the context of homelessness anddestitution, the House of Lords held that, in certaincircumstances, failure to provide access to supportservices for destitute asylum seekers constitutes abreach of Article 3:

As in all Article 3 cases, the treatment, to beproscribed, must achieve a minimum standard ofseverity, and I would accept that in a context such asthis, not involving the deliberate infliction of pain orsuffering, the threshold is a high one. A general publicduty to house the homeless or provide for the destitutecannot be spelled out of article 3. But I have no doubtthat the threshold may be crossed if a late applicantwith no means and no alternative sources of support,unable to support himself, is, by the deliberate actionof the state, denied shelter, food or the most basicnecessities of life.15

Although referring to the refusal of support forasylum seekers under Section 55 of the Nationality,Immigration and Asylum Act 2002, the logicalextension of Lord Bingham’s judgment is that incertain circumstances, irrespective of legislationbarring access to public funds, the state may berequired to intervene to avoid a breach of Article 3rights. However, as submitted by O’Cinneide, inorder for this to be the case, state responsibilitymust be engaged.16 European Court case law hasestablished that there must be some element ofresponsibility on behalf of the state to engageArticle 3; in other words, in this type of case, thestate must bear some liability for the individual’sdestitution. Therefore, the Limbuela casedemonstrates that destitution caused by the Statecan constitute inhuman and degrading treatment.On this view, destitution plus state imposedexclusion from support may risk breach of Article 3.As highlighted by the findings contained in thisreport, there are serious risks of violation of Article3 where individuals are left destitute. Further, therisk of violation may be even more pronouncedwhere destitution is coupled with othervulnerabilities such as physical and/or mentalill-health, or disability.

11 Osman v UK (1998) Case No 87/1997/871/1083, 5 November 1998, para115.

12 See: Osman v UK, above; in the context of health and social care forvulnerable groups, see: Powell v UK (2000) 30 EHRR CD363.

13 For a similar argument, see: O’Cinneide C (2008) ‘A modest proposal:destitution, state responsibility and the European Convention on HumanRights’, 5 European Human Rights Law Review 583-605.

14 (2002) 35 EHRR 1, para 52.

15 R v Secretary of State for the Home Department (Appellant) ex parte Adam; Rv Secretary of State for the Home Department (Appellant) ex parte Limbuela;R v Secretary of State for the Home Department (Appellant) ex parte Tesema(Conjoined Appeals) [2005] UKHL 66 (Bingham LJ, para 7).

16 See: O’Cinneide C (2008) above.

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Article 8: Private and family life

1. Everyone has the right to respect for his privateand family life, his home and his correspondence.

2. There shall be no interference by a public authoritywith the exercise of this right except such as is inaccordance with the law and is necessary in ademocratic society in the interests of nationalsecurity, public safety or the economic well-beingof the country, for the prevention of disorder orcrime, for the protection of health or morals, or forthe protection of the rights and freedoms of others.

The right to private and family life (Article 8, ECHR)encompasses the right to respect for family, privatelife, and home. Although it does not giveindividuals the right to be provided with a home,17

refusal of access to homelessness services has thepotential to engage Article 8 if this is demonstratedto constitute an illegitimate and disproportionateinterference with the applicant’s private or familylife. Migrants in the UK without “family” within themeaning of Article 8 can still rely on the protectionsof the right to private life, insofar as the EuropeanCourt of Human Rights has held that:

[…] it must be accepted that the totality of social tiesbetween settled migrants and the community in whichthey are living constitutes part of the concept of“private life” within the meaning of Article 8.18

Whether Article 8 is engaged in the context ofhomelessness and/or destitution will depend uponan element of state responsibility. Therefore, thestate must, in some way, be responsible for theindividual’s homelessness or destitution. Whilethere may be limited circumstances in which theGovernment will be directly responsible for anindividual becoming homeless, liability might beestablished if homelessness continues due todomestic legislation, which prevents access to

homelessness assistance and financial support.As O’Cinneide explains:

The Art. 8 case law requires states to refrain frominterfering in an unjustifiable manner with these rights:in addition, states may have positive obligations thatarise out of the concept of respect for private, homeand family life. Therefore, the possibility must existthat state interference or a failure to discharge positiveobligations which generates or contributes to thecreation of conditions of extreme poverty may infringethe rights recognised in Art. 8(1): if this occurs, then astate will have to justify its (in) action on the basis thatit is a proportionate interference with privacy andfamily rights and is directed towards achieving alegitimate aim, as required by Art. 8(2).19

In order to establish interference with Article 8,there must be a direct link existing between thecircumstances alleged and the right to enjoyprivate, family life or home within the meaning ofthe Convention.20 The ultimate question in thisrespect is whether homelessness falls within theambit of Article 8. The case of Connors v UK showsthat the negative impact associated withhomelessness may, in certain circumstances, fallwithin the ambit of the right to respect for home,private and family life.21 In addition, it is notablethat, in the particular context of disability, thedomestic courts have held that failure by a localauthority to respond to an assessment of theapplicant’s housing needs amounted to a breach ofArticle 8.22 Although maintaining that Article 8 doesnot require the state to provide everyone with ahome, the court confirmed that the state may berequired to take positive steps to ensure respect forprivate and family life within the context of housing,particularly for more vulnerable individuals, such asthose with disabilities.

17 Chapman v UK (2001) 18 January 2001.

18 Maslov v Austria (2008) (Application No 1638/03), 23 June 2008, para 63.

19 O’Cinneide C (2008) above, pp 5-6.

20 R (on the application of Bernard) v Enfield LBC [2002] EWHC 2282 (Admin);for detailed consideration of this case law, see O’Cinneide, above.

21 Connors v UK (2004) (Application No 66746/01), 27 May 2004.

22 R (on the application of Bernard) v Enfield LBC [2002] EWHC 2282 Admin.

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Finally, if it is shown that the circumstancessurrounding an individual’s homelessness, or her orhis treatment by state agencies, on presenting ashomeless, has resulted in interference with theenjoyment of her or his rights under Article 8, thestate must show that this is ‘in accordance withlaw and necessary in a democratic society’. Itwould be difficult to comprehend how, in ademocratic society, measures denying access tobasic subsistence could be regarded as necessarywithin the meaning of the Convention.

Article 14: Prohibition of discrimination

The enjoyment of the rights and freedoms set forth inthis Convention shall be secured withoutdiscrimination on any ground such as sex, race, colour,language, religion, political or other opinion, nationalor social origin, association with a national minority,property, birth or other status.

Legislative provisions that exclude certaincategories of non-UK nationals from public fundscould potentially form the basis of a claim fordiscrimination on grounds of national origin or‘other status’ in conjunction with anotherConvention right. It is of note that, in the case of R(RJM) v Secretary of State for Work and Pensions,the House of Lords held that ‘homelessness’ is apersonal characteristic within the meaning of ‘otherstatus’ in Article 14 of the Convention (freedomfrom discrimination).23 In addition, in the case of R(Morris) v Westminster City Council, the followingcharacteristics were found potentially to fall withinthe ambit of ‘other status’: nationality, immigrationcontrol, settled residence, and social welfare.24

This leaves open the possibility that measuresexcluding access to homelessness assistance orwelfare benefits may be deemed discriminatory, inconjunction with one or more of the ECHR rightsalready discussed, as a result of differentialtreatment based on homelessness or immigrationstatus.

Article 1, Protocol 1: Protection of property

According to the European Court of Human Rights,welfare benefits can fall within the scope of Article1 of Protocol 1 to the Convention, which states:

1. Every natural or legal person is entitled to thepeaceful enjoyment of his possessions. No oneshall be deprived of his possessions except in thepublic interest and subject to the conditionsprovided for by law and by the general principlesof international law.

The preceding provisions shall not, however, in anyway impair the right of a State to enforce such lawsas it deems necessary to control the use of property inaccordance with the general interest.

Much of the Court’s early judgments appeared tosuggest that only contributory based social securitybenefits fall within the remit of Article 1 of Protocol1 (A1P1).25 In the Court’s view, because individualshave an enforceable claim to a contributory benefit,it is clearly a ‘personal possession’ within themeaning of Protocol 1. However, more recentdecisions establish that non-contributory benefitsmay also fall within Article 1 of Protocol 1. In thecase of Stec, Protocol 1 was held to encompass anon-contributory reduced earnings allowance.26 Inthe case of R (RJM) v Secretary of State for Workand Pensions,27 the Lords held that the payment ofa disability premium, for those in receipt of IncomeSupport, is a personal possession within themeaning of Article 1 of Protocol 1 of the ECHR.Although the substantive claim, allegingdiscrimination in relation to the enjoyment of‘personal possessions’, failed, Lord Neubergerstated:

23 R (RJM) v Secretary of State for Work and Pensions [2008] UKHL 63.

24 [2005] EWCA Civ 1184.

25 Gaygusuz v Austria (1997) 23 EHRR 364.

26 Stec (2005) 41 EHRR SE295.

27 [2008] UKHL 63, above.

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[…] bearing in mind this House’s obligation undersection 2(1)(a) of the Human Rights Act 1998 to “takeinto account any […] judgment […] of the EuropeanCourt of Human Rights”, […] I conclude that, asdisability premium is part of the UK’s social welfaresystem, RJM does have a sufficient “possession” tobring his claim within A1P1.

Article 1 of Protocol 1 does not provide anunfettered right for individuals to access socialsecurity benefits or social assistance. However,once an individual establishes that they satisfy theconditions for receiving a benefit, his or herentitlement to it may create a right falling withinthe meaning of the Protocol. Potentially, although itwould require a determination by the court, themeaning of ‘personal possession’ may include theduty on the Northern Ireland Housing Executive(NIHE) to provide temporary accommodation, or theduty on Trusts to provide assistance to ‘persons inneed’.

Agency findings

10(2) Where the Executive is satisfied that theapplicant has a priority need and is not satisfied thathe became homeless intentionally, it shall secure thataccommodation becomes available for his occupation.

Establishing ‘priority need’

The 1988 Order states that a person has ‘priorityneed’ if they are:

(a) a pregnant woman or a person with whom apregnant woman resides or might reasonably beexpected to reside;

(b) a person with whom dependent children reside ormight reasonably be expected to reside;

(c) a person who is vulnerable as a result of old age,mental illness or handicap or physical disability orother special reason, or with whom such a personresides or might reasonably be expected to reside;

(d) a person who is homeless or threatened withhomelessness as a result of an emergency such asa flood, fire or other disaster;

(e) a person without dependent children who satisfiesthe Executive that he has been subject to violenceand is at risk of violent pursuit or, if he returnshome, is at risk of further violence;

(f) a young person (defined as a person who has notattained the age of 21) who satisfies the Executivethat he is at risk of sexual or financial exploitation.

The criteria for priority need are considered in moredetail later in this chapter. It is important to pointout that, unless an applicant is assessed as fallingwithin one of the six categories for priority need,she or he is not entitled to housing assistance evenif deemed homeless.

The agencyThe Northern Ireland Housing Executive (NIHE) is anon-departmental public body under theresponsibility of the Department for SocialDevelopment (DSD). While the DSD wasestablished in 1999 as part of the Northern IrelandExecutive, the NIHE has been in existence since1971 following the enactment of the HousingExecutive Act (Northern Ireland) 1971 (the 1971 Act).The 1971 Act transferred housing responsibilitiesfrom the previous 26 public authorities and theNorthern Ireland Housing Trust to this new, singleagency. The Housing ( Northern Ireland) Order 1981(as amended) outlines the NIHE’s general functionsrelating to housing. These are detailed andamended according to the Housing Orders (for themost part, the Orders from 1981 to 2003). TheCommission’s investigation is primarily concernedwith the NIHE’s role as set out in the Housing(Northern Ireland) Order 1988 (as amended) (the1988 Order) in relation to ‘housing the homeless’.

Legislation and policyHomeless or threatened with homelessness

The 1988 Order provides that, if the NIHE hasreason to believe an applicant is homeless, orthreatened with homelessness, it must makeinquiries to establish whether this is the case.A person is homeless if she or he has no availableaccommodation in the UK or elsewhere.28

‘Threatened homelessness’ arises if it is likely aperson will become homeless within 28 days fromthe day on which she or he gives written notice tothe NIHE. The NIHE has an interim duty to offertemporary accommodation, pending a full decision,if on initial inquiry it is believed that the applicantmay be homeless and has ‘priority need’.29 On fullinquiry, if the applicant is found homeless, orthreatened with homelessness, then the finaloutcome depends on whether the applicant is in‘priority need’ and is not ‘intentionally homeless’.Article 10 of the 1988 Order provides:


3 Northern Ireland Housing Executive“I think, I was saying to you about that lady from [A8 state]. I mean, that broke my heart; whatdo you do with that? She had nowhere to go back to.” (NIHE interviewee)

26

28 Article 3 of the 1988 Order as amended by Article 135 of the Housing (Northern Ireland) Order 2003.

29 Above, Article 8.

• Section 1: intimidation

• Section 2: insecurity of tenure

• Section 3: housing conditions, and

• Section 4: health and wellbeing.

If an individual is awarded FDA, she or he receives(70 points) under Section 2 of the HSS, with acorresponding place on the social housing waitinglist. Although FDA status generally attracts thehighest number of re-housing points, if the reasonfor homelessness is intimidation, an exceptionalaward of 200 points is made under Section 1 of theHSS.

(In)eligibility for homelessness assistance

Even if Article 10(2) of the 1988 Order is satisfied,and it is established that an applicant is homelessor threatened with homelessness, variousregulations exist so that a homeless and vulnerableapplicant is deemed ‘ineligible’ for housingassistance. This affects individuals who are subjectto UK immigration laws that either prohibit accessto homelessness assistance, or make accessconditional on satisfying additional criteria. Asimmigration is an ‘excepted’ matter, many of theseregulations emanate from the Government atWestminster, leaving no opportunity foramendment by the devolved Northern IrelandExecutive. In addition, it should be noted that,because the regulations are enshrined in legislation,there is no discretion for agencies like the NIHE todepart from the homelessness criteria. Homelessnon-UK nationals are ineligible for homelessnessassistance due to various statutory provisions.These are laid out in more detail in Table 3.1,overleaf.

Intentional homelessness

A person is deemed intentionally homeless if she orhe:

[…] deliberately [does] or fail to do anything inconsequence of which [she or he] cease to occupyaccommodation, whether in Northern Ireland orelsewhere, which is available for occupation andwhich it would have been reasonable for [she or he]to continue to occupy.30

To an extent, the question of whether it isreasonable for a person to continue to occupyaccommodation is a subjective one, dependent onthe facts of the case. However, in certaincircumstances, leaving accommodation abroad mayresult in a finding of intentional homelessness bythe NIHE if it is determined that it would have beenreasonable for the applicant to remain there.Therefore, a key inquiry for this investigation was inwhat circumstances would leaving accommodationabroad mean that homelessness was ‘intentional’.

‘Full duty applicants’

If, on inquiry, the NIHE finds that the applicantsatisfies Article 10(2)(a) of the 1988 Order, that is,she or he is homeless or threatened withhomelessness, in priority need, and not intentionallyhomeless, then the applicant is awarded ‘full dutystatus’ (FDA) for the purposes of the NIHE HousingSelection Scheme (HSS). The HSS is a schemeproduced by the NIHE, and approved by the DSD,which is used to determine the order in whicheligible applicants are awarded accommodation.The number of points determines the applicant’splace on the social housing waiting list and,therefore, the speed with which she or he is likelyto get accommodation. Accordingly,accommodation is generally offered to individualswith the highest number of points. The HSS pointsare attributed according to four different sections:


27

30 Article 6(1) of the 1988 Order.

Table 3.1 Homelessness assistance: legislative exclusions


28

31 See: Glossary for the definition of ‘habitual residence’. See also: Chapter 5, Findings relating to the Habitual Residence Test.

Applicant Homelessness assistance: legislative exclusions

A8 nationals The Allocation of Housing and Homelessness (Eligibility) Regulations (NI) 2006 and theAccession (Immigration and Worker Registration) Regulations 2004, as amended, provide thatoften A8 nationals are ineligible for accommodation and housing assistance from the NIHEunless they satisfy additional criteria. In effect, this means that from the date of cominginto force of the Regulations, nationals from the A8 accession states are deniedhomelessness assistance if they are out of work, or not in registered work, and have notyet completed 12 months of continuous employment under the Worker RegistrationScheme (WRS). There are exceptions, for instance, for students or self-employed persons.

A2 nationals In general, A2 nationals (Romania and Bulgaria) travelling to the UK after 1 May 2006 areentitled to homelessness assistance only if they meet the requirements of the WorkerAuthorisation Scheme (see Allocation of Housing and Homelessness (Eligibility) Regulations(NI) 2006 and the Accession (Immigration and Worker Authorisation) Regulations 2006). Thereare exceptions, for example, for students or self-employed persons.

EU15 nationals The Allocation of Housing (Eligibility) Regulations (NI) 2006, as amended, provide that, ingeneral, EU15 nationals are ineligible for housing assistance if they are not habituallyresident in the UK or if the right to reside derives only from their status as a jobseeker. Inpractice, this means that EU15 nationals (and returning UK nationals) must satisfy thehabitual residence test.31 EU15 nationals will also have to show that they are more than ajobseeker, that is, that they are, or have been, a ‘worker’ in the UK. Again, there areexceptions, for example, for self-employed persons.

Non-EEA(Subject toimmigrationcontrol)

Section 119 of the Immigration and Asylum Act 1999 provides that individuals subject toimmigration control are ineligible for assistance under homelessness provisions. Thisincludes individuals with limited leave to remain in the UK, for example, those who haveentered the UK on a spousal or student visa. However, there are circumstances wherethose subject to immigration control can be eligible for assistance, if they belong to a groupspecified by the Secretary of State.

Asylum seekers The Nationality, Immigration, and Asylum Act 2002 provides that access to homelessnessassistance and financial subsistence can be refused where a person seeking asylum doesnot make a claim for asylum as soon as reasonably practicable following arrival in the UK.

Refused asylumseekers

Where an application for asylum is refused, the individual is generally ineligible for housingassistance unless they qualify for ‘hard case’ support under Section 4 of the Immigration andAsylum Act 1999.

Non-UKnational familymembers

Entitlement to housing assistance for non-UK nationals residing in the UK as the familymember of either a British national or a non-UK national may be dependent on theirrelationship with the spouse or partner. However, on relationship breakdown, depending onimmigration status, the family member may become entitled to homeless assistance in hisor her own right. For example, if from an A8 state, the family member can gain entitlementto homeless assistance by completing the WRS.

human rights’; and I don’t know which bit you mean,so, and it is quite a long… If you look at it on theInternet, it is too heavy for me to read, you know.I would sort of need it in layman’s terms.” (NIHEinterviewee)

At times, despite the lack of human rights training,the NIHE staff expressed an awareness of thehuman rights concerns for ineligible non-UKnational applicants. Some recognised that in termsof homelessness assistance, this was the onlygroup of persons for whom the NIHE could offeronly limited help. One interviewee hoped that as aresult of the Commission’s investigation therewould be better protection of human rights forhomeless non-UK nationals:

“I just feel, looking at this, if something is going tocome out of this, [it has to be] human rights, becauseit is about human people.” (NIHE interviewee)

Nevertheless, the absence of human rights trainingwas perhaps reflected by an inability, among someNIHE interviewees, to identify potential humanrights concerns for non-UK nationals ineligible forhomelessness support. Often, interviewees feltthat human rights are the remit of the voluntarysector:

“I would say to them – ‘look this is where you shouldgo, Citizens Advice and they will give you the bestadvice on how to take on your landlord, your privatelandlord’; that is all you can do, but in terms of humanrights, the legislation, that is not my field.” (NIHEinterviewee)

Similarly, it was felt that human rights concerns forineligible applicants do not exist because ‘everyoneis treated the same’. For example, when asked ifthere are any concerns when an applicant ishomeless and vulnerable but ineligible, oneinterviewee replied:

“No more than anyone else. To me, someone fromLithuania or Poland or Portugal would have the samehuman rights as anybody living over here.” (NIHEinterviewee)

FindingsWhereas Chapters 6 to 10 of this report focus onthematic issues relating to homelessness for thosewith no, or limited, access to public funds, such asdomestic violence, illness, disability andintimidation, the findings presented in this chapterare crosscutting and relevant to all thecircumstances in which non-UK nationals presentto the NIHE for homelessness support.

Human rights awareness

The investigators found that human rightsawareness was generally quite limited among theNIHE staff interviewed. The NIHE states that itsfull-day equality awareness training includes ahuman rights specific session for which staff areprovided with accompanying literature. However,when asked about human rights training,interviewees indicated that they had received nospecific training, or referred to their attendance atdiversity training but did not recall any humanrights:

“I am trying to think back because there was trainingabout five years ago, but it was more around politicalcorrectness of expressions of groups of people.”(NIHE interviewee)

A few interviewees were of the view that staff donot need to be aware of human rights because thisis accounted for in the development of NIHE policy.In complex cases, it was felt that the NIHE legaladvice should take account of any human rightsconcerns. The Commission accepts that this maybe the case. However, frontline staff shouldreceive basic human rights training. In practice,frontline staff are the gatekeepers in terms ofwhether human rights issues reach the legaldepartment. Staff cannot be expected to refer acase for advice if they do not know about humanrights and are unable to identify potential concerns.Indeed, a number of staff were keen to developtheir knowledge of human rights:

“I mean, I get it quoted to me all the time. If you areon the phone, you know - ‘you are infringing my


29

30


The Commission accepts that NIHE staff cannot actoutside the legislation so as to offer homelessnessassistance to an individual who is ‘ineligible’.However, staff should still have basic awareness ofhuman rights standards and how these apply in thecontext of homelessness. This will ensure thatwhen a homeless ineligible applicant presents, staffcan identify potential human rights concerns andrefer to senior NIHE staff and on to the Health andSocial Care Trust where the applicant can beassessed for assistance.

Training on eligibility

There was a mixed response in terms of thetraining received regarding eligibility. While, insome offices, it was important that all staffattended eligibility training, in others it was feltthat, due to low numbers of non-UK nationals, onlyone or two members of staff ought to be trained.Interviewees indicated that, in all offices, seniorhousing officers were available to offer assistancein difficult cases. In addition, for more complexadvice, housing officers would go beyond districtoffice level and contact the centralised legal andpolicy unit within the NIHE. In most instances,interviewees felt satisfied with this level of support:

“[…] it is brilliant, you know that there is thatsupport.” (NIHE interviewee)

During the period of the investigation, the structureof the NIHE was undergoing significant change.This meant altered staffing arrangements andchanges to the location of district offices. Forexample, in Belfast, most district offices either hadrelocated, or were in the process of moving, to onecentral office in Great Victoria Street in the citycentre. In many instances, staff had undertakennew roles and required various levels of training. Inthe interim, staff felt confident that they couldapproach senior level staff for help. However, whiletraining courses were useful, a number ofinterviewees preferred ‘on the job’ learning. As oneinterviewee explained:

“It is just that you could be taught it and trained it, youknow, every day, but it is when you go to put it intopractice…” (NIHE interviewee)

Given the complexity of the law on eligibility, it isimportant that the NIHE encourages appropriateforms of training, and on the job learning,particularly during organisational change. This willbe beneficial for staff, many of whom revealed thatthey were anxious about ‘getting it wrong’. To anextent, this was expressed as an anxiety thatarises in all cases, but heightened in casesinvolving non-UK nationals due to the complexity oflegislation around eligibility:

“…there is an awful lot of stress because you are soafraid to get something wrong, you know.” (NIHEinterviewee)

Attitude of staff toward non-UK nationalapplicants

The NIHE currently provides intercultural awarenesstraining which does challenge racist stereotypesand has, to date, been undertaken by over 300members of staff. It is important to stress that theviews expressed by the vast majority of NIHEinterviewees revealed a positive attitude towardnon-UK national applicants. Moreover,interviewees often conveyed their concern aboutthe ‘ineligible’ cases where they had been unable tohelp. Therefore, eligibility criteria could have anegative impact on the NIHE staff, as oneinterviewee recalled:

“I think, I was saying to you about that lady from [A8state]. I mean, that broke my heart; what do you dowith that? She had nowhere to go back to.” (NIHEinterviewee)

Where applicants had been deemed ineligible, theinvestigators also came across many exampleswhere staff went above and beyond their normalduties to help:

“I used to phone up every couple of weeks to see howshe was getting on and how is she, where is she,where are we going, and I would say, ‘look, we needto get this help and assistance’.” (NIHE interviewee)

31


Nevertheless, in a small number of instances,interviewees expressed a negative attitude, beingcritical about the reasons why certain non-UKapplicants had presented for support. For example,one staff member stated:

“One woman presented pregnant with a three-year-old, so obviously, she wasn’t here to work.” (NIHEinterviewee)

In another instance, it was felt that because of areluctance to travel to different areas of NorthernIreland, non-UK nationals were not making genuinehomelessness claims:

“If someone is genuinely homeless and they havenowhere to go, they should be prepared to acceptother towns; but a lot of them say ‘no, I can’t go to [Xtown], I can’t go to [X town]’.” (NIHE interviewee)

For a minority of interviewees, the fact that certaincategories of non-UK nationals are entitled tohomelessness support resulted in elements ofresentment and a ‘them’ and ‘us’ approach. Anumber of comments were made in this respectand were perhaps indicative of a more negativeattitude towards non-UK national claimants. In onecase, the interviewee referred to the NIHE’sapproach to individuals who were granted asylum,revealing a misinformed view that ‘they’ have morerights than ‘us’:

“I think sometimes, maybe its not right to say, butsometimes the people have more human rights thansome of the people here because we have got a lot ofduty to them... I know they are more vulnerable... butwe would be placing [them] before somebody whohad been down here every day for months andmonths with kids and all, and we would be placingpeople from abroad – because they have got all ofthose difficulties and because of their vulnerability –before them and, so, sometimes our rights areoverlooked.” (NIHE interviewee)

As further evidence of this, the investigators notedthat a few statements had been made in a ratheraccusatory manner. For example, it was felt by one

interviewee that applicants asked for an interpreteronly if they did not accept what the housing officerwas saying:

“But some of them know, and they may not like whatI’m asking with some of the questions.” (NIHEinterviewee)

In another example, it was felt that non-UKnationals had been coached to make falsehomelessness claims:

“Sometimes they say they’re homeless, but they’vebeen told to come in and say that and they’re notreally homeless.” (NIHE interviewee)

It is of serious concern that, in a small number ofinstances, these negative attitudes were expressedat senior level. Senior staff are relied upon foroversight and direction on complex cases,particularly those around eligibility. As such,negative attitudes expressed by senior staff canhave a wider impact on how other frontline staffrespond to non-UK national applicants. If notaddressed, this type of attitude could risk anunhelpful approach to non-UK nationals by theNIHE. In the longer term, it may discouragehomelessness applications or, in extreme cases,lead to outcomes that are based on individualprejudices rather than legislative criteria.

The NIHE informed the investigators that wherenegative attitudes are expressed by staff it is ofserious concern and that, in particular, the HousingExecutive’s ‘intercultural awareness’ training dealswith staff attitudes, behaviour, discrimination, andprejudice. In addition to this training, however, theCommission is of the view that it is important forstaff to receive anti-racism training that is updatedand reinforced.

Homeless claims by non-UK nationals

It is important to emphasise that this investigationdoes not aim to highlight the numbers of homelessnon-UK nationals in Northern Ireland but, rather, thecircumstances and human rights implications forthose who are at risk of homelessness and

Table 3.2 NIHE case files reviewed by district, type ofapplication and outcome (date of application toNIHE, August 2006 – August 2008)

* One homeless application was withdrawn by the applicant beforethe final decision was made.

The greatest number of refusals for ‘full duty’ statusoccurred in the Homelessness Services Unit Belfastand Dungannon. The fact that an applicant did notreceive full duty status did not necessarily meanthat they were denied Housing Executiveaccommodation. The applicant, if eligible, wasplaced on the social housing waiting list. Theinvestigators found that, in nine out of the 75 casesdenied full duty status, the applicant was placed onthe waiting list. Again, this occurred in Dungannon(eight cases) and the Homelessness Services Unit(one case).

In terms of the 112 case files, 59 applicants haddependent children and 13 were pregnant. Onlyone applicant was under the age of 18 years at thetime of application. Table 3.3 shows the mainreasons for homelessness claims.

excluded from government support. In interviews,NIHE staff explained that homelessnessapplications by non-UK nationals make up a smallerproportion of their workload overall.

However, from the investigators’ contact with theNIHE’s district offices and a review of the casefiles, it became apparent that the need forhomelessness assistance among non-UK nationalsin Northern Ireland is not insignificant. The casefiles give an indication of the number of non-UKnationals applying to the NIHE for homelessnesssupport in the three geographical areas covered.However, given that the district offices do notrecord homelessness applications by nationalityand that the investigators did not view allhomelessness case files, this does not represent acomprehensive figure of homelessness amongnon-UK nationals in these areas.

Based on a review of 127 case files, 88 per cent(112) related to claims for homelessnessassistance. Table 3.2, below, reveals that themajority, 68 per cent, did not receive FDA status,while only one third (32 per cent, or 36 out of 112)were granted FDA.32


32

DistrictOffice

Number ofcase filesreviewed

Number ofhomelessapplications

Outcome:FDA notgranted

Outcome:FDAgranted

HSU 46 46 30 16

Belfast East 10 10 6 4

BelfastNorth 18 16* 9 6

BelfastSouth 15 10 5 5

BelfastWest 0 0 0 0

Shankill 9 1 0 1

Dungannon 27 27 24 3

Cookstown 2 2 1 1

Total 127 112 75 36

32 Initially, the investigators considered 132 case files, with the date of application to NIHE ranging from 2004 to August 2008. However, it was decided to exclude case fileswith a date of application prior to August 2006. This was due to the historical nature of the files and the fact that, since 2004, the rules relating to homelessnessassistance for non-UK nationals have been subject to change. As such, the 127 case files analysed for this investigation ranged from August 2006 to August 2008, withthe majority relating to 2007 and 2008.

Table 3.4 Reason for ineligibility

For the most part, refusals due to ineligibility as aperson from abroad occurred in Belfast and, withinthe Belfast offices, most often in the HomelessnessServices Unit (29 out of 43 refusals).

For the purposes of determining an applicant’seligibility for assistance, the NIHE homelessnessapplication form contains a specific section askingif the applicant is a person from abroad and, if so,whether the applicant is eligible or ineligible forassistance. This is an important part of the formbecause it shows how the NIHE has arrived at itsdecision regarding eligibility. It requires the housingofficer to consider particular NIHE guidance, whichsets out the circumstances in which a person fromabroad is entitled to homelessness assistance. Onconsidering the guidance, the housing officer mustthen fill out the requisite section of the form toshow, in writing, whether the applicant is eligible.This involves a tick box and, if warranted, providinga written explanation as to why the applicant is, oris not, eligible.

While in the majority of forms, this section wasclearly filled out, in 26 cases (20.5 per cent), it wasnot demonstrated that the NIHE had properlyconsidered this section of the form. In eightinstances, it was simply not filled out and in sevenothers, while this specific question on the form was

Table 3.3 Reason for homeless claims by non-UKnationals

The most common ground for claiminghomelessness was due to a ‘notice to quit’; that is,a notice requiring the individual to leave theiraccommodation within 28 days from the date ofnotice. Rather worryingly, the next most commonreason was that the applicant had ‘no fixed abode’(NFA), meaning that they had no availableaccommodation. In addition, as can be seen fromthe table, a significant proportion related tointimidation (12 cases) and domestic violence (sixcases), which raises particular concerns for theCommission, as detailed later in this report.

Refusals due to ineligibility

In terms of refusals for NIHE assistance, 79 (62.04per cent) of the 127 cases considered wererefused. Out of these, the majority (43 or 54.5 percent) were refused due to ineligibility. The reasonsare contained in Table 3.4.


33

Reason for claim Number

Notice to quit 24

No fixed abode 16

New arrival 15

Asylum granted 15

Intimidation 12

Neighbourhood harassment 7

Domestic violence 6

Overcrowding 6

Property detrimental to health 3

Can’t afford rent 2

Relationship breakdown 2

Loss of tied accommodation 2

Not clear from case file 2

Reason for Ineligibility Number

No WRS certificate 19

>30 day break in WRS 4

No Worker Authorisation 5

Not habitually resident 2

No recourse to public funds 11

Not accepted as a ‘worker’ 1

Refused asylum 1

Total 43

34 cases (26.8 per cent), the applicant was offeredtemporary accommodation. In addition, there wasconsiderable good practice insofar as staffendeavoured to accommodate applicants for aslong as required for the homelessness inquiry.However, this is only a provisional solution and,given that the NIHE must make a final decisionwithin 30 days of the date of application, in mostcases 30 days will constitute the maximum lengthof temporary support. In addition, on review ofcase files, it was found that to a significant extentdecisions on eligibility were taken immediately,which meant that the applicant had no route tocrisis support from the NIHE. Therefore, out of the26 cases where the client was of ‘no fixed abode’and/or sleeping rough, only three were offeredtemporary accommodation pending a decision oneligibility. In the remaining 23 cases, the client wasdeemed ineligible and refused support andaccommodation. As explained by interviewees,there are circumstances when NIHE staff must takean immediate decision on eligibility:

“I mean, if it was so obvious, right, if somebodyarrived in this morning and it was so obvious fromlooking at their passport, single guy is there, that hedidn’t meet the eligibility criteria, then he would not beeligible for temporary accommodation underhomelessness rules.” (NIHE interviewee)

Therefore, in cases where the applicant’s passportstates ‘no recourse to public funds’, the NIHE stafffelt that the only option would be to issue animmediate refusal. In only one case, did theinterviewee believe that further inquiries ought tobe made:

“[…] Because on her passport, it actually said ‘nowork and no recourse to funds’, but obviously it couldhave been superseded, you know, so we wanted toconfirm that [it hadn’t been].” (NIHE interviewee)

answered in the affirmative, the final determinationwas that the applicant was not eligible forassistance. This may have implications for theaccuracy of the NIHE data that records the numberof applicants who have been deemed ineligible forhomelessness assistance. In some instances, itmay even impact on the correctness ofdecision-making on eligibility regarding individualsfrom abroad. The decision-making regardingeligibility should be evidenced and recordedcorrectly on the specific section of thehomelessness application form.

Practice in relation to ineligibility

When asked about the working approach to ahomelessness case involving a non-UK national, theoverwhelming response from the NIHE was thatthere is no difference in approach compared to UKnationals. However, in each case, staff conceded akey difference which is, that often the eligibilitycriteria are fundamental, meaning that certain non-UK nationals are not entitled to homelessnesssupport:

“In a homeless case, you are looking for differentissues, as in a normal housing assessment you knowwhat you are looking for…‘what brought you to behomeless in the first place’. So you are looking atthat, but I would say the main crux is eligibility.” (NIHEinterviewee)

In the majority of district offices and in theHomelessness Services Unit, the decision oneligibility is made by a senior member of staff.Staff felt that, given the complexity of the issue, adecision on eligibility is rarely made on the day thatthe applicant presents as homeless and, in fact, adetermination can take several days or weeks inmore complicated cases.

If the applicant is homeless and in priority need, theNIHE has a duty to offer temporary accommodationfor the interim period until a decision on eligibility isdetermined.33 The investigators found that in


34

33 Article 8 of the Housing (Northern Ireland) Order 1988.

whatever, and we were satisfied on that day – ‘look,you are not going to be eligible for assistance here’,and there were children involved, I would imagine,yes, we would maybe even contact social services[the Trust] or, you know, somebody who could providesome help for them.” (NIHE interviewee)

Within the NIHE ‘Homelessness’ handbook, atparagraph 10.9.92, there is a procedure for referralto the Trust for ineligible non-UK nationals who areasked to leave NIHE temporary accommodation.This provides:

[…] It is important that social services are alerted asquickly as possible to homelessness cases where thefamily may wish to seek assistance under the ChildrenOrder. Social services should also be advised of casesof Applicants who may be destitute, vulnerable andineligible for assistance.

This referral mechanism should apply for ineligibleapplicants whether or not they have been placed intemporary accommodation. It was not apparent tothe investigators that staff were aware of thisaspect of the guidance.

Notably, out of the 127 case files reviewed, onlyfour included a note that a referral to the Trust hadbeen made. Three out of the four referrals relatedto cases involving family with children. In only onecase, the referral related to an adult. This isdespite the fact that, in 43 cases, the applicantwas ineligible for NIHE assistance. Moreover, inhalf of these instances (26 cases), the applicantwas of ‘no fixed abode’ and/or sleeping rough.Applicants who are ineligible for homelessnesssupport are vulnerable, particularly if they havedependent children or no fixed abode. In thesecases, the fact of ineligibility means that,potentially, there is a threat to the applicant’ssafety insofar as they cannot secure safe andadequate shelter. During interviews with the NIHEstaff, the investigators became aware of contacts

Interviewees often felt that, if an applicant isineligible, there is nothing that the NIHE can do.However, others were more proactive, using theNIHE statutory duty to provide detailed advice andassistance. The statutory duty to provide ‘adviceand assistance’ is derived from the Housing(Northern Ireland) Order 1988, as amended.34

Neither the legislation, nor NIHE policy guidance isclear on what this advice and assistance shouldentail.35 Interviewees indicated that it oftendepended on the circumstances of the case.However, on a reading of case files, it seems thatthe extent of advice and assistance would dependon the knowledge and goodwill of individual staff.In several cases, NIHE staff had provided detailedadvice and assistance and the investigators foundconsiderable good practice in this regard. In othercases, advice and assistance was minimal andincluded signposting to agencies that would beunlikely to help:

“So they come down to ourselves and we would carryout investigations and try to sort out whatever we canbut, at the end of the day, you end up with the sameproblem – that there is no recourse to public funding,so you are stuck in the situation; and you try to say tothem, ‘well, your best bet is to go to Social Securityand get some money there to see if they will help you,send you back or give you a crisis loan’ […] or elsesend them on to one of the hostels, if you can helpthem.” (NIHE interviewee)

Without access to some source of emergencyfunds, directing the applicant to a hostel is oftenfutile, given that she or he is potentially destituteand unable to pay. A more appropriate approach toavoid destitution would be to refer the applicant tothe Health and Social Care Trust. However, theinvestigators found that while staff will signpost,they do not make formal referrals:

“If they came in and they did have their paperworkand it was stamped ‘no recourse to public funds’, or


35

34 Above, Article 7A(8)(a) of the Order as inserted by Article 137 of the Housing (Northern Ireland) Order 2003.

35 Although, it should be noted that the Housing (Amendment) Bill, if enacted in its current form, will introduce a power for the Department of Social Development toprescribe the form of advice and assistance provided by the NIHE under Article 10 of the Housing (Northern Ireland) Order 1988.

immediately with the homelessness application,either instead of their ineligible partner, or at thesame time. This would avoid the unnecessarydelay caused by having to process two consecutivehomelessness applications for the same family. Inthe alternative, it would be preferable if anineligible individual was permitted to submit anapplication, in her or his own name, on the basisthat she or he is the family member of a qualifiedperson. The SSA, for example, acceptsapplications for Income Support and Jobseeker’sAllowance from applicants who are eligible due totheir relationship with a family member. However,at present, homelessness applications cannot beaccepted from ineligible persons.

A further difficulty for ineligible family membersarises in relation to priority need. Article 7A(4) ofthe 1988 Order states that a person from abroad,who is not eligible for homeless assistance, mustbe disregarded for the purposes of determiningwhether another person should be consideredhomeless or in priority need. In other words, familymembers who are not eligible for assistance cannotconfer priority need. Interviewees who took part inthe Commission’s investigation indicated that thisrule had presented a problem in a number of cases:

“A couple, which consisted of an A8 national and anon-EEA national, presented. The girl was actuallya month or two pregnant […] She had no recourse topublic funds but any priority for homelessnessassistance would lie with her, so I am really in theprocess of investigating that.” (NIHE interviewee)

Following a case concerning the equivalentprovision in England and Wales, the domesticcourts found an incompatibility with Article 8 (rightto private and family life) and Article 14(non-discrimination) of the ECHR. As Lord Auldstated at paragraph 82:36

The effect of section 185 (4), when read with Article8, is plainly discriminatory within the meaning ofArticle 14 of the Convention because the differential

with Trusts but at no stage was it apparent thatdirect referrals had been made on a formal basis.The Commission is of the view that the NIHE shouldestablish an appropriate procedure for referringineligible non-UK nationals, who are homeless, orthreatened with homelessness, to Trusts. TheCommission understands that applicants may notreceive assistance from the Trust in all cases.Nevertheless, only if the applicant is referred, canshe or he be assessed to establish entitlement.

Eligibility and ‘qualified family members’

In practice, it is possible for an ineligible applicantto benefit from homelessness assistance due to theeligibility of a family member.

“We look at the eligibility of the applicant but we alsolook at if they’re a family member of a qualifiedperson. This is routinely considered. […] We advisestaff to enquire about family members.” (NIHEinterviewee)

In terms of the investigation, four cases wereencountered where the applicant did not meet theeligibility criteria although, based on the informationprovided by the applicant, it appeared that her orhis partner might. In this type of case, the eligiblepartner was required to reapply with a freshhomelessness application. The investigatorsobserved an individual make an application, eventhough it was clear that she would not satisfy theeligibility criteria. The applicant stated that shewas from an A8 state, that she was not workingand did not have a Worker Registration Certificate.On the other hand, she indicated that her partnerwas working and might have a Worker RegistrationCertificate. The applicant was informed to waituntil her application had been processed, at whichstage she would likely be refused and the NIHEwould advise her partner to apply. Given theapplicant’s circumstances, this process causedunnecessary delay.

There is no practical or legal reason to prevent theNIHE advising an eligible family member to proceed


36

36 R (Morris) v Westminster City Council [2005] EWCA Civ 1184 and R (Gabaj) v First Secretary of State (28 March 2006, unreported).

in England, Wales and Scotland) have the sameduty towards that individual as to other homelesspeople. This would be in keeping with internationalhuman rights standards and, in particular, GeneralRecommendation 30 on Discrimination AgainstNon Citizens, by the Committee on the Eliminationof Racial Discrimination, which requires statesparties:

To refrain from applying different standards oftreatment to female non-citizen spouses of citizensand male non-citizen spouses of citizens, to report onany such practices and to take all necessary steps toaddress them. (paragraph 8, October 2004)

The effect of leaving accommodation abroad

In certain circumstances, having or leavingaccommodation abroad may mean that a person isineligible for homelessness assistance. If a personhas accommodation abroad, the NIHE may decidethat she or he is not homeless on the basis ofaccommodation elsewhere and it is reasonable forthe individual to occupy it. As explained by oneinterviewee:

“‘Homeless’ – means no accommodation anywhere,as per 2003 (NI) Order. Basically ‘anywhere’ means‘on earth’. So a person could be found not homelessif they have accommodation elsewhere but it has tobe reasonable for the person to return. ‘Anywhere’may apply if there is a house in Poland but even if inthe Northern Ireland context they have nowhere to go,the question is, is it reasonable for them to return. Ifreasonable, this will mean they’re not homelessregardless of eligibility.” (NIHE interviewee)

The investigators found one example of this fromNIHE case files, where it was determined that “itwould be reasonable for the applicant to return toaccommodation [abroad]”. However, in this case,the applicant had a disability, no accommodation or

treatment for which it provides, turns on nationalorigin, or […] on a combination of one or more of thefollowing forms or aspects of status: nationality,immigration control, settled residence and socialwelfare.

Following this judgment, the Court of Appeal issueda declaration of incompatibility under Section 4 ofthe Human Rights Act 1998, in relation to theprimary legislation.37 The Government has sincesought to rectify the incompatibility via anamendment contained in Schedule 15 of theHousing and Regeneration Act 2008.38 This statesthat an ineligible person can be regarded for thepurposes of determining whether another person ishomeless or in priority need. However, unlike inother cases, the NIHE can discharge its duty tosuch a person, known as a ‘restricted’ person, byoffering private rental accommodation with a leaseof at least 12 months. The duty is discharged if theapplicant accepts or refuses the offer.39

More recently, the Joint Committee on HumanRights (JCHR) has raised concerns with thisamendment, nothing that:

[It] is in contrast to the general duty where an offer ofsimilar accommodation will not discharge the dutyowed to the applicant by the local authority unless theapplicant agrees.40

The difference in relation to restricted persons, asagainst all others, may still leave scope for a claimof discrimination in relation to the enjoyment ofArticle 8 rights. At present, under Rule 56 of theHousing Selection Scheme, all other homelessapplicants are entitled to receive a maximum ofthree reasonable offers of accommodation.

Where priority need is established due to anineligible family member, the Government shouldensure that the Housing Executive (local authorities


37

37 Section 185(4) of the Housing Act 1996.

38 This provision commenced on 2 March 2009. It applies to homeless applications made on or after 2 March 2009 (See: the Housing and Regeneration Act 2008(Commencement No 1 and Saving Provisions) Order 2009).

39 Article 10(2A) of the Housing (Northern Ireland) Order 1988 as inserted by Schedule 15 of the Housing and Regeneration Act 2008.

40 House of Lords, House of Commons Joint Committee on Human Rights (2008) Monitoring the Government’s Response to Human Rights Judgments: Annual Report 2008,Thirty-first Report of Session 2007-08, HL 173/HC 1078 TSO Ltd, London, para 88.

38


access to accommodation, and it was not apparentthat she or he had resources that would enablethem to return. In this type of case, if it isreasonable for the applicant to return toaccommodation elsewhere, then NIHE case filesshould record more detailed information toevidence that this is the case.

In addition, as part of the investigation, it wasimportant to explore whether, and in whatcircumstances, having accommodation abroadcould result in intentional homelessness. This isbecause an applicant is ineligible for NIHEhomelessness assistance if found intentionallyhomeless.41 Article 6(1) of the 1988 Orderprovides:

A person becomes homeless intentionally if hedeliberately does or fails to do anything inconsequence of which he ceases to occupyaccommodation, whether in Northern Ireland orelsewhere, which is available for his occupation andwhich it would have been reasonable for him tocontinue to occupy.

Interviews with NIHE staff revealed that thequestion of ‘intentionality’ could relate to non-UKnationals and their reasons for travelling toNorthern Ireland:

“The homelessness, the priority need, and makingthemselves intentionally homeless, just leaving it, upand going and coming over here, on the prospect thatthey might get accommodation and they might geta job, you know.” (NIHE interviewee)

As this interview extract demonstrates, anapplicant may be deemed intentionally homelessdue to a decision to ‘up and come over here’ in thehope of finding work. However, a person’smotivation in coming to Northern Ireland, whetherto find work or otherwise, should not provide thesole basis to exclude them from homelessnessassistance. This type of decision-making wasevident in a number of NIHE case files. In onecase, the applicant was intentionally homeless

because he “gave up private rented to come toBelfast”; in another, because he “left the familyhome [abroad] to find work in Northern Ireland”.

The investigators did not find a consistent approachto the issue of ‘intentionality’. It was not entirelyclear when having accommodation abroad wouldlead to a finding of intentionality. At times, itappeared that subjective beliefs about ‘giving up’property to find work in Northern Ireland dominateddecision-making.

Determining priority need

Once an applicant is determined homeless, NIHEstaff must establish whether she or he has priorityneed. Priority need is established if the applicantpresents with one or more vulnerabilities as set outin Article 3 of the Housing (Northern Ireland) Order1988 (as discussed above).

On review of NIHE case files, it was apparent thathaving dependent children was the most commonreason for granting priority need. This wasfollowed by 11 cases (8.7 per cent) where refugeestatus had been granted, and eight cases (6.3 percent) where the applicant was deemed vulnerabledue to ill-heath, disability or other reason. In anumber of cases, it appeared that if the applicantwas ineligible for homelessness assistance, theNIHE did not record a decision on priority need. Ininterview, one member of staff referred to thecorrect process of decision-making:

“[…] there is kind of hurdles they have to go over,anybody has to go over. First of all, you have to behomeless or threatened with homelessness, then youget that, the next hurdle is priority need, then the nexthurdle is intentionality. So, you could get through allthose and then eligibility. You could get through allyour hurdles, you fail on the last one, you wouldn’t getyour homeless, so, but children would get you priorityneed.” (NIHE interviewee)

Nevertheless, priority need was not alwaysrecorded. By way of example, priority need wasnot recorded in five cases where the applicants had

41 Article 6(1) of the Housing (Northern Ireland) Order 1988.

39


dependent children, nor in two instances ofdomestic violence. In these cases, it seems thatpriority need was not recorded because the overalldecision was that the applicant was ineligible forhomelessness assistance, as a person from abroad.In light of this, staff perhaps did not feel itnecessary to confirm priority need. As oneinterviewee stated:

“We have a set criteria, which I adhere to, so I wouldexplain to them that; look, when we are doing ahomeless assessment, basically we are looking at ourhomeless, priority need and intentionality, but before Iwould even do that, I would ensure that basically theywere eligible.” (NIHE interviewee)

However, if on enquiry, staff find that the applicantis ineligible, they should still go on to establish ifshe or he is homeless and in priority need. If it isconfirmed that the applicant is in priority need, thenthe nature of their priority should be evidenced andrecorded. Clear recording of priority need, whetherdue to dependent children and/or risks of violenceor any other priority need criterion, is crucial. It willestablish possible referral options and show thatappropriate advice and assistance have beenconsidered and followed by the NIHE. It will alsoprovide an evidence base from which to monitorthe vulnerabilities experienced by applicants whoare excluded from NIHE homelessness support.

‘Rough sleeping’ and priority need

A further concern, regarding priority need criteria, isrelated to ‘rough sleeping’. Where an applicant isof no fixed abode and, in the conventional sense,‘homeless’, this does not itself constitute priorityneed. In 26 cases, the investigators noted that theapplicant was of no fixed abode and possiblysleeping rough, but ineligible for homelessnessassistance from the NIHE. In the majority (18 ofthese cases), the applicant was deemed not tohave priority need, being a single adult male withno apparent priority need. While it was explainedduring interview that not every rough sleeper will

have priority need, a distinction was drawnbetween rough sleeping due to unforeseencircumstances and those who rough sleephabitually:

“[…] with the hardcore rough sleepers, it would beexceptionally unusual for them not to have priorityneed – they have mental health issues, drug relatedissues. At the end of the day, you wouldn’t roughsleep habitually in the first place if you didn’t havecomplex needs. But the guy who misses the bushome doesn’t have priority need or the person whofalls out with the partner and sleeps in the car – Idon’t want to list situations – but not every roughsleeper will have priority need.” (NIHE interviewee)

In many of the 18 cases, the male applicant was anew arrival to Northern Ireland and could not besaid to sleep rough habitually. Further, withoutevidence of illness, disability or other vulnerability,these applicants could not establish priority need.However, as new arrivals to Northern Ireland, withno recourse to subsistence or shelter, theCommission suggests that they are extremelyvulnerable individuals.

Individuals, who are sleeping on the street withoutany means of accessing accommodation, shouldhave priority need whether they have a furtheridentified vulnerability or not. The fact that theindividual does not have access to accommodationis enough to show that they are in priority need.This would require an amendment to the currentlegislative categories of priority need. In theinterim, rough sleeping coupled with ineligibilityshould trigger immediate referral to the relevantTrust.

Review and appeal

The right of review and appeal againsthomelessness decisions is important because, asrecognised by the NIHE, it may be the only safetynet for non-UK nationals who may be otherwiseineligible for other types of services, such asaccess to social security benefits:

Commission accepts that this is not a violation ofArticle 6(1) if there is a mechanism to allow furtherappeal to a court of full jurisdiction.44 In Englandand Wales, internal review of local authorityhomelessness decisions is a statutory right. This isbolstered by a statutory right of appeal to thecounty court. In Northern Ireland, thehomelessness legislation does not contain a right ofreview or appeal. While the process of internalreview is adopted voluntarily by the NIHE, theabsence of a statutory right of appeal means thatindividuals, who wish to proceed further, must doso by way of judicial review. The Commission isconcerned that this places applicants in NorthernIreland at a considerable disadvantage, given thedifficulties and costs involved in pursuing such anapplication.45 Applicants who wish to appeal ahomelessness decision should be able to do so byway of application to the county court.

The Commission understands that clause 5 of thecurrent Housing (Amendment) Bill will amend the1988 Order, to ensure that applicants have astatutory right of internal review and a right ofappeal to the county court.46 The Commissionwelcomes this and urges the enactment of theright of review and appeal without delay.

During the investigation, concerns were raisedabout the potential lack of knowledge regardingreview and appeal mechanisms among non-UKnationals in particular. This lack of knowledge maystem from the fact that, in all cases, decisionletters are issued in the English language. A furtherpractical difficulty may relate to the fact thatrequests for review must be made in writing,stating the reasons for review:

“If anybody rings up and they disagree with theirdecision, they are always given the opportunity, if theywant to put it in writing, to appeal.” (NIHE interviewee)

“The safety net is the appeals process. While anappeal is ongoing, NIHE can accommodate and wecan accommodate right up to the point of finaldecision and beyond.” (NIHE interviewee)

The investigators encountered mostly good practiceamong interviewees, who often stated that theywould do their best to explain the details ofdecision letters to applicants and how to reviewand appeal:

“People come in with letters now and again and it’ssaying, you know the way it says on the bottom ofa letter, ’if you want to appeal this decision that youcan write to the area manager’. I would be explainingthat to them and, then if they weren’t happy with that,I would be getting the housing officer again, if theyweren’t sure they were going on Language Line again,you know.” (NIHE interviewee)

Nevertheless, despite good practice, there areconcerns regarding review and appeal mechanismsfor homelessness decision-making generally inNorthern Ireland, and particular difficulties thatarise for non-UK nationals. These issues areoutlined below.

The European Court of Human Rights hasestablished that Article 6 of the ECHR (right to afair hearing in the determination of civil rights) canapply to the determination of entitlement to certainwelfare benefits.42 In addition, domestic courtshave generally proceeded on the basis that Article6 applies once it is determined that an individual isowed a duty under homelessness legislation (theHousing Act 1996 and the Housing (Northern Ireland)Order 1988).43

The current process for internal review ofhomelessness decisions is not independent andimpartial. However, in line with the jurisprudenceof the European Court and domestic courts, the


40

42 Feldbrugge v Netherlands (1986) 8 EHRR 425; Salesi v Italy (1993) 26 EHRR189.

43 Adan v Newham London Borough Council [2002] EWCA Civ 1916; Begum(Runa) v Tower Hamlets London Borough Council [2002] EWCA Civ 239;Begum (FC) (Appellant) v London Borough of Tower Hamlets [2003] UKHL 5.

44 Albert and Le Compte v Belgium (1983) 5 EHRR 533; Begum (Runa) v TowerHamlets LBC [2002] EWCA Civ 239.

45 See also: Begum (Nipa) v Tower Hamlets LBC [2000] 1 WLR 306 where itwas noted that, in practice, the jurisdiction of the county court may be widerthan that of the High Court on judicial review in terms of questioning findingsof fact.

46 See: the Housing (Amendment) Bill.

and support from voluntary and communityorganisations. This reaffirms the Commission’sconcern that, without assistance, non-UK nationalsmay be unaware, or may feel ill equipped, to pursuea review.

Interpreting services

NIHE staff have access to telephone andface-to-face interpreting services. The telephoneinterpreting service is provided through a companycalled Big Word, whereas face-to-face interpretersare provided by various community organisationsdepending on notice and availability. TheCommission accepts that, in an emergency, it maynot be possible to access an interpreter, in whichcase telephone based services are the only option.However, telephone interpreting will not always beappropriate and, where time permits, the NIHEshould offer face-to-face interpreting. As oneinterviewee explained, telephone interpreting isuseful but information may be lost in this type ofcommunication:

“[…] it is the Big Word now. We do have it but it isstill very difficult because you are asking themquestions, you are going through the interpreter andthe interpreter is speaking to them and then tellingyou, but I think you lose something in that you know, itcan’t be helped.” (NIHE interviewee)

Across all offices covered by the investigation,even where there did appear to be time to organisean interpreter, for instance, where there was aprearranged house visit or interview, there was areluctance to use face-to-face interpreters and atendency to rely on friends and family members.This appeared to be related to convenience and, inother instances, a failure to recognise theimportance of using an appropriately trained andaccredited interpreter. While it may be theapplicant’s preference to have a family member, orfriend, interpret, this may not always be the case.Moreover, even if the applicant would choose tohave a family member interpret, they must alwaysbe informed that interpreting services are available.

The Commission is not aware whether the NIHE willaccept requests for review that are written in alanguage other than English. However, it is notunimaginable that the requirement to state reasonsin writing would deter an individual from seekingreview.

Decision letters should contain a standardstatement, translated in several languages,highlighting that the individual can request a reviewand how best to proceed. In addition, the NIHEshould consider appropriate ways to help thosewho cannot provide written reasons for a review. Itmay be that the NIHE can accept a statement inthe applicant’s own language and have ittranslated. Alternatively, it might appoint amember of staff, not previously involved in theapplication, to meet with the applicant and note thereasons for review via an interpreting service.While the NIHE may also refer the applicant tovoluntary organisations for assistance, it isimportant to note that voluntary groups are notresponsible for ensuring that non-UK nationalsunderstand the homelessness decision-makingprocess (unless there is an appropriate service levelagreement in place).

The investigators noted a low rate of review andappeal among the case files considered. This isdespite the view, held by some interviewees, thatthe majority of requests for review are made bynon-UK nationals:

“Quite a number of appeals and reviews are from themigrant community which suggest that they are gettingand understanding the letters.” (NIHE interviewee)

There was evidence of review in only three of the127 NIHE case files reviewed. In each of these, theoutcome of the review was successful. This initself highlights the complexity of the homelessnessrules for migrants and the utmost importance ofensuring that applicants know about mechanismsfor review. In addition, in two out of the threecases reviewed, there was evidence of advocacy


41

to speak or read the English language. While someindividuals may return to the district office to havethe letter explained, others may not do so, with therisk that final decisions are misunderstood orinformation required by NIHE to process theapplication is not received. It is also possible thatapplicants may miss out on essential appointmentswhich would then have to be rescheduled. Oneinterviewee relayed how, on at least one occasion,this had occurred:

“So I had a gentleman in there, funny, I was coveringthe counter for tea break, and he came in with a letterand we were going out to see him today but helanded in with it. That would happen now and again,although the letter did say we were going out.” (NIHEinterviewee)

The Commission recognises that it is not alwaysfeasible to standardise letters for translation.Indeed, international standards recognise the needfor reasonableness in this respect. Particulardifficulties might arise with decision letters, wherethe precise reason for the final outcome may differin each case. However, the Commission suggeststhat it is feasible to include a statement with eachletter, either on the letter or on a leaflet attached,in various languages explaining the purpose of theletter and contact details should the applicant wishto discuss it further.

Interagency co-operation

Trusts

It was apparent that when the NIHE was willing tomake referrals to other government agencies,barriers existed that prevented an effective workingapproach. Therefore, several intervieweesindicated that if an applicant is ineligible andvulnerable, referral to the relevant Trust should bean option but that there were various difficultiesrevealed. In the first instance, many NIHE staff didnot see a role for Trusts unless the applicant’s caseinvolved dependent children:

“A lot of them, when they come over, don’t speak verygood English and usually there is, like, a familymember or a friend who has preceded them, so theywould know their way around the system or else theywould bring somebody with them to interpret.” (NIHEinterviewee)

The investigators were concerned at the frequencywith which interviewees from the NIHE referred tousing children as interpreters. In a few instances,concerns about relying on children wererecognised, as one interviewee stated: “Sometimesthere are questions you wouldn’t want a child to beasking a mother, if domestic violence or something”.However, in most cases there was no apparentknowledge or insight into the inappropriateness ofthis type of approach:

“Some people come back to explain the letter, butmost bring a child or friend to interpret. On someoccasions, children have interpreted.” (NIHEinterviewee)

It is the Commission’s view that it is neverappropriate for a government agency to usechildren as interpreters for parents. It is difficult toenvisage any homeless application process whereit would be appropriate to ask the child to relayrelevant information. Although it is good practiceto ascertain the child’s views, this is different fromusing children to interpret.

Translation services

During the homelessness application process,applicants will receive important information byletter. As previously discussed, the final decision isprovided by written letter. In addition, during thedecision-making process, the NIHE may, by writtenletter, request information from the applicant,which is required to further progress thehomelessness application. In each of the case filesconsidered by the investigators, letters wereprovided in English.

The Commission is concerned about letters issuedin English if the applicant is known to the NIHE not


42

interviewee, the investigators found nounderstanding of this amongst the NIHE staff.

In other instances, interviewees discussedconsiderable good practice when referring toTrusts. From personal experience with individualcases, certain interviewees felt that the Trust hadperformed an exemplary job.

Therefore, good practice and working relationshipswere at times apparent. However, this was only onan individual basis, with no consistency in theresponse from the Trust or in the workingrelationship between the NIHE and Trusts acrossthe board. The investigators felt that there was anopportunity to harness good practices, which couldbe developed in policy and applied on a strategiclevel. That this had not occurred was evident fromseveral accounts about trying to contact Trusts.For example, NIHE interviewees struggled to findthe appropriate department or the correct individualto help:

“I just think there is maybe an issue between socialservices [the Trust] and the Housing Executive. I don’tknow where to go; I don’t know who to contact insocial services [the Trust]. I just contact the localofficer who deals with ourselves; usually the [name ofoffice] deals with them. I don’t know or they don’tknow who to refer me on to and there is a gap there,I know that.” (NIHE interviewee)

There should be better co-operation between theNIHE and Trusts so that ineligible non-UK nationalscan be assessed to establish if they may be entitledto assistance from the Trust.

Social Security Agency

In general, NIHE staff spoke positively aboutcontacts with the Social Security Agency (SSA).This tended to stem from the fact that staff wereaware of the SSA’s remit whereas, with Trusts,interviewees indicated uncertainty regarding thatrole. In some instances, it was useful for the NIHE

“In terms of an individual who is ineligible in terms ofstatus, for example, they have children and it’sunlikely we can assist or it’s illegal to assist underlegislation, we refer to social services [the Trust].Social services [the Trust] only have a duty to childrenas such and this is difficult in itself.” (NIHEinterviewee)

Even if the case did involve children, intervieweesexpressed concern that the consequences of theirreferral could be that the children are removed fromthe family and taken into care:

“In many cases, social services [the Trust] will say thattheir responsibilities are with the children. We willadvise social services [the Trust] but may then findthat [they] will want to meet the needs of the children– it’s a double edged sword.” (NIHE interviewee)

As discussed in more detail in Chapter 8, this is afear that is held equally by parents and, inparticular, victims of domestic violence.Nevertheless, it would be of serious concern ifTrusts were to remove a child on the sole basis thatthe parents do not have access to public fundswhen there are no other child protection concerns.In this type of case, if there is a route to support,Trusts ought to assist the family without removingthe children unless, as international law requires, itis in the child’s best interest to do so.

In only one instance was there an acknowledgmentthat Trusts might have a role in cases that do notinvolve dependent children. This intervieweeexpressed an awareness of all Trust programmes ofcare beyond children’s services: “We would networkquite well with social services [the Trust] across,elderly team, child care team, mental health, there hasnever really been a problem”. As outlined inChapter 4, Trusts may not be able to assist in allcases. However, the Health and Personal SocialServices (Northern Ireland) Order 1972 allows Truststo assist in certain circumstances.47 Except for one


43

47 For those subject to ‘immigration control’, the 1972 Order can be used if the individual is ‘destitute plus’. For EEA nationals, those with refugee status in another EEA state,refused asylum seekers, and those “unlawfully” in the UK, Trusts can use the 1972 Order where failure to do so would result in breach of ECHR rights or rights under theEC Treaty.

44


to confirm that an applicant was entitled to socialsecurity benefits, such as Income Support orJobseeker’s Allowance, because this helped toevidence eligibility for homelessness support:

“[…] if they have access to something like a benefit,like Income Support or child benefit, it stands toreason then, they are probably going to qualify forHousing Benefit, you know, but you would still do yourown tests and all.” (NIHE interviewee)

Most interviewees relayed positive experiences oftheir contacts with the SSA. Nonetheless, attimes, it was difficult to find the correctdepartment, as one NIHE interviewee explained:

“You phone [SSA] and – ‘it is not mine’ and’ it is notmine’, so it is going through all the differentdepartments and you end up nowhere.”

It is possible that telephone contact and advicebetween the NIHE and the SSA could be improved.

Finally, out of the 127 case files reviewed, therewas no reference to a referral or signpost to theSSA. It could be that a referral was not made orthat it was, but not recorded in the case file. TheNIHE should consider the appropriateness ofreferral to the SSA in cases where the applicantappears ineligible for NIHE support and, if a referralis made, it should be clearly noted on the file.

Relationship with voluntary agencies

Often when an applicant is ineligible for NIHEhomelessness support, the NIHE staff will signpostto other organisations as a routine part of the dutyto provide advice and assistance. Case files andinterviews revealed that when confronted with theissue of ineligibility, staff more often signposted tovoluntary organisations than to the governmentsector. As one interviewee from a voluntary sectororganisation stated:

“The voluntary and community sector is supporting thestate and they’re at saturation point. There is ahuman rights alliance between the voluntary sector

and churches for support and accommodation – it isfor bed and food, but this is only short-term, all thesafeguards are gone.” (Voluntary organisationinterviewee)

In 32 of the NIHE case files, it was noted that theNIHE had provided formal ‘advice and assistance’through signposting to another organisation,providing a self-referral list for hostelaccommodation, or issuing a homeless advicebooklet. In only four cases, signposting related toanother government agency. Given the extent ofsignposting, and references to these types ofreferrals by the NIHE staff, voluntary groups areeffectively asked to provide an emergency housingservice for ineligible applicants. Theseorganisations neither receive funding for this aspectof their service, nor are they permitted to spendcurrent funding unless they have a source ofincome that is not derived from government funds.Although difficulties in funding were recognised bythe NIHE staff, it was sometimes felt to besomeone else’s problem:

“We don’t mind sending them up there… but theproblem is, who is going to pay for it; but that is notour problem.” (NIHE interviewee)

There was, at times, a lack of recognition from theNIHE staff about the extent to which voluntarygroups might struggle in order to provideemergency help. For example, there was aperception that, in cases of domestic violence,‘ineligible’ applicants are referred to the Women’sAid Federation (NI) (WAFNI) ‘just like everyoneelse’, because it is responsible for providing thistype of help:

“If a person comes in with domestic violence, wewould treat them the same as we will treat a personhere. We will be directing them to probably Women’sAid and there is quite a lot of support there inWomen’s Aid.” (NIHE interviewee)

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It is important that the NIHE continues to refer toorganisations, such as WAFNI, which can offerappropriate accommodation, advice and support.However, it is also essential to acknowledge that incases involving ‘ineligible’ non-UK nationals, WAFNImust rely on its own funds to accommodatebecause the NIHE ‘Supporting People’ funding doesnot pay for ‘ineligible’ non-UK nationals.

A further concern was that the NIHE staff wouldcontact voluntary organisations for advice and help.There was a feeling among some voluntary groupsthat a lack of awareness amid NIHE staff led toreliance on the voluntary sector for this type ofassistance. In addition, there was, at times,misunderstanding about the remit of voluntarygroups and what they can do to help. Examples ofthis include referring to the voluntary organisationsfor help with accommodation when theorganisations concerned provide only daytimeservices, or a tendency to rely on organisationsperceived to be able to help with all issuesinvolving migrants. As one organisation explained:

“Often people are referred here if they are a differentnationality even though the Housing Executive knowswe can’t help – we don’t have housing, how can wehelp them?” (Voluntary organisation interviewee)

In several cases, applicants were signposted toorganisations such as the Chinese WelfareAssociation (CWA), the Polish Welfare Association(PWA), and the Northern Ireland Council for EthnicMinorities (NICEM). It is appropriate to signpost inthis way in order to provide the applicant withoptions for further community level support, but itis difficult for these organisations to assist whenthe crux of the issue is homelessness and potentialdestitution. Interviewees from various voluntarygroups stated that homelessness referrals hadbeen received from government agencies.

46

The Trusts“I mean, social services [the Trust], they are the safety net, so the buck stops with you in termsof accommodation, you know.” (Trust interviewee)

4


Legislation and policyHealth and Personal Social Services(Northern Ireland) Order 1972

The DHSSPS has a duty, under Article 4 of theHealth and Personal Social Services (Northern Ireland)Order 1972 (the 1972 Order), “to provide or securethe provision of personal social services in NorthernIreland designed to promote the social welfare ofthe people of Northern Ireland”. Article 15 sets outhow the Department shall discharge this duty:

15. (1) In the exercise of its functions under Article4(b) the Ministry shall make available advice,guidance and assistance, to such extent as itconsiders necessary, and for that purpose shall makesuch arrangements and provide or secure theprovision of such facilities (including the provision orarranging for the provision of residential or otheraccommodation, home help and laundry facilities) as itconsiders suitable and adequate. […]

(2) Assistance under paragraph (1) may be given to,or in respect of, a person in need requiring assistancein kind or, in exceptional circumstances constituting anemergency, in cash; so however that before givingassistance to, or in respect of, a person in cash theMinistry shall have regard to his eligibility for receivingassistance from any other statutory body, and, if he isso eligible, to the availability to him of that assistancein his time of need.

Trusts, therefore, have a responsibility to provideadvice and assistance to “persons in need”, whichmay include the provision of accommodation andcash, provided consideration is given to whether ornot assistance is available from another statutorybody. According to Article 2 of the 1972 Order, a“person in need” is someone who:

The agencyIn Northern Ireland, the delivery of day-to-day socialservices is the responsibility of the Health andSocial Care Trusts (the Trust(s)).48 As of 1 April2008, there are six Health and Social Care Trusts inNorthern Ireland: the Belfast Trust, Northern Trust,South Eastern Trust, Southern Trust, Western Trustand the Northern Ireland Ambulance Service Trust.The Commission’s investigation focused on thedelivery of services within the Belfast Trust, theSouthern Trust (which covers Dungannon) and theNorthern Trust (which covers Cookstown).

Beyond the delivery of day-to-day services,responsibility for legislation and policy lies with theDepartment of Health, Social Services and PublicSafety (DHSSPS or ‘the Department’).49

Responsibility for commissioning services, resourcemanagement and improvement of the delivery ofhealth and social care services in Northern Irelandrests with the Regional Health and Social ServicesBoard (the Board). The Board was established on1 April 2009, replacing the previous four Health andSocial Services Boards that had existed during thetime of the fieldwork for the investigation.50 Therole of the Regional Health and Social ServicesBoard is set out in the Health and Social Care(Reform) Act (Northern Ireland) 2009.

Trusts have a wide range of responsibilities andduties. However, this investigation aimed toestablish the extent of Trusts’ duties and practice inrelation to homeless non-UK nationals at risk ofdestitution. For the most part, the relevantlegislation is the Health and Personal Social Services(Northern Ireland) Order 1972 (the 1972 Order) andthe Children (Northern Ireland) Order 1995, (theChildren Order).

48 Provisions relating to the establishment and functions of Health and SocialCare Trusts are contained in the Health and Personal Social Services(Northern Ireland) Order 1991.

49 The Department’s role in promoting and providing health and social care isset out in the Health and Social Care (Reform) Act (Northern Ireland) 2009.

50 The four Boards that existed prior to 1 April 2009 were the Eastern Healthand Social Services Board, the Northern HSSB, the Southern HSSB and theWestern HSSB.

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• Is in need of care and attention arising out ofinfirmity or age; or

• Suffers from illness or is substantially handicappedby any deformity or disability; or

• Being a person who has asked for assistance, is,in the opinion of the Ministry, a person to whomany of the personal social services provided by itmay be made available.

This duty should be read in light of the HumanRights Act 1998 (HRA), and the duty placed uponpublic bodies to act in compliance with theprovisions of the European Convention on HumanRights (ECHR).

The 1972 Order cannot be used to assist in allinstances where a non-UK national is homeless butineligible for assistance from the HousingExecutive. However, Trusts are permitted to usethe 1972 Order for certain non-UK nationals wherefailure to do so would result in breach ofConvention rights or rights under the EC Treaty.51

It should be emphasised that this bare minimumapproach is less than satisfactory, coming from adeveloped state such as the UK. Nevertheless, it isthe Commission’s view that, to ensure a minimumlevel of support, a non-UK national who is destituteand has no other means of support ought to beassessed for assistance under the 1972 Order.

In the case of persons subject to ‘immigrationcontrol’, it is important to note a legislativeexception that further restricts (but does notprevent) assistance under Article 15 of the 1972Order.52 Article 121 of the Asylum and ImmigrationAct 1999 amends the Health and Personal SocialServices (NI) Order 1972 so that assistance underArticle 15 must not be provided to a person subject

to immigration control if their need has arisensolely:

(a) because they are destitute; or

(b) because of the physical effects, or anticipatedphysical effects, of being destitute.

In England and Wales, similar criteria is found inSection 21 of the National Assistance Act 1948,which has become widely referred to as the‘destitute plus’ criteria. The precise wording of the1948 Act differs from the 1972 Order. However,the jurisprudence developed by the courts inrelation to the interpretation of Section 21 of the1948 Act can shed some light on the meaning ofthe ‘destitute plus’ criteria in the 1972 Order. Themeaning of ‘destitute plus’ was considered by theHouse of Lords, in July 2008, in the case of R (Onthe application of M) v Slough Borough Council.53

Lord Brown stated:

“If a person reaches that state purely as a result ofsleeping rough and going without food […] thenclearly the need for care and attention will have arisensolely from destitution. If, however, that state of needhas been accelerated by some pre-existing disabilityor infirmity – not of itself sufficient to give rise to aneed for care and attention but such as to cause afaster deterioration to that state and such as to makethe need once it arises more acute – then […] Iwould not regard such a person as excluded underSection 21 (A).” (paragraph 40 (ii))

On this basis, it is apparent that a person subject toimmigration control, who is destitute withadditional needs (whether due to illness ordisability or potentially some other reason), may beentitled to assistance under Article 15 of the 1972Order.

51 Paragraph 1 of Schedule 3 to the Nationality, Immigration and Asylum Act 2002 prevents use of Article 7 and Article 15 of the 1972 Order for EEA nationals, those withrefugee status in another EEA state, failed asylum seekers, and those unlawfully in the UK unless failure to use the 1972 Order would result in breach of the individual’srights under the ECHR or the EC Treaty.

52 According to Section 119 of the Immigration and Asylum Act 1999, those subject to ‘immigration control’ are persons who are not EEA nationals and (1) require leave toenter or remain in the United Kingdom but do not have it; or (2) have leave to enter or remain in the United Kingdom subject to a condition that they do not have recourseto public funds; or (3) have leave to enter or remain in the United Kingdom given as a result of a maintenance undertaking; or (4) have appealed against a decision to varyor refuse to vary leave to remain in the UK.

53 [2008] UKHL 52.

2. Nevertheless, at times, Trusts adopt anunduly restrictive understanding of the 1972Order. This reflects a failure to adopt theHRA as the overarching instrument whenconsidering non-UK nationals who are at riskof destitution and ineligible for other formsof support.

3. Consequently, the approach of individualstaff members may be correct in terms ofthe direction that they receive frommanagement, but it is unlikely, in all cases,to take adequate account of human rightsconcerns.

4. As a result, senior level and frontline staffare not always aware of Trust duties inrelation to destitute non-UK nationals.

The following sections demonstrate how thesemain, underlying concerns are problematic for theday-to-day response from Trusts in relation tonon-UK nationals.

Human rights awareness

Unlike the other government agencies consideredas part of this investigation, Trust staff generallyindicated a good awareness of the existence of theHRA and the types of rights that it protects.Therefore, in response to questions regardinghuman rights training, staff generally replied alongthe following lines:

“Yes, there has been human rights training. There ishuman rights training in this Trust and both in thelegacy Trust, north and west and also, again, obviouslyas one of the senior managers here in the office, I seethe training coming through, I am familiar with the factthat, yes, that is on offer regularly to our staff.” (Trustinterviewee)

However, on a number of occasions, staff revealedthat human rights training had been received atuniversity and not within the specific context of

Internal policy and guidance

As part of the investigation, the Office of SocialServices was asked for any policy and guidance onTrusts’ responsibilities in relation to non-UKnationals who are homeless or at risk ofhomelessness. At an initial meeting, it was statedthat the Department is developing guidance inrelation to unaccompanied asylum seeking childrenin the context of wider guidance relating to healthand social care provision for non-UK nationals.However, there is currently no policy or guidancerelating specifically to the issue of homelessnessfor non-UK nationals who are excluded fromhomeless assistance and welfare benefits. Theinvestigators were provided with a range ofdocumentation at various stages throughout thefieldwork. However, of these, only the Immigration,Nationality and Asylum Guidance was directlyrelevant to the investigation.54

FindingsThis section of the report focuses on findingsrelevant to Trusts’ duties in relation to non-UKnationals with no, or limited, access to publicfunds. It considers issues that cut across allaspects of service delivery. It does not discuss thefindings that relate to the Trusts’ response tospecific concerns identified by the Commission,such as domestic violence, ill-health, or disability,which are covered in the later thematic chapters ofthis report.

Overall, in relation to the delivery of services byTrusts for homeless non-UK nationals, there arefour main concerns:

1. The legislation, namely the 1972 Order, andthe limits placed on its use by statutoryprovisions relating to immigration,55 is not inkeeping with international human rightsstandards.


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54 Produced by the Home Office and issued to the Boards and Trusts in 2002.

55 As discussed, the 1972 Order is limited by Schedule 3 of the Nationality, Immigration and Asylum Act 2002 and by Section 121 of the Immigration and Asylum Act 1999,which states that the 1972 Order cannot be used to assist persons subject to ‘immigration control’ solely because they are destitute, or because of the physical effects, oranticipated physical effects, of his being destitute.

emergency assistance, and they refused to help, theremay be an argument under Article 3.” (SSAinterviewee)

In certain instances, individual social workers had astrong sense that due to the eligibility criteriaoperated by the Northern Ireland Housing Executive(NIHE) and the SSA, the Trust might indeed be theresponsible agency:

“Well we have to, because, I mean at the end of theday, the bottom line is, you know if police feel theycan’t help, if the hospital, if medical intervention isinappropriate, I mean, social services [the Trust] theyare the safety net, so the buck stops with you in termsof accommodation, you know.” (Trust interviewee)

However, again, this level of awareness was notalways apparent among Trust interviewees.

Training on duties toward homelessnon-UK nationals

The exclusion of certain non-UK nationals fromhomelessness assistance means that, dependingon the circumstances of the case, Trusts may betasked to deliver a new type of service – help withaccommodation. As one interviewee explained,while staff may be aware of their human rightsobligations in terms of social care, they aregenerally not aware of how this operates in thecontext of homelessness:

“I mean, we have been on the human rights training interms of looking at the Convention and what theimplications for the provision of health and social caremight be, but it didn’t focus specifically on housing.”(Trust interviewee)

As a result, several interviewees indicated thatmore detailed training on human rights relating toasylum seekers and other non-UK nationals wouldbe useful.

Therefore, in addition to human rights training, theinvestigators asked interviewees to what extentthey had received training regarding Trusts’ duties

their employment with the Trust. It may be that formore recent staff, human rights are covered as partof the vocational social work degree. However, notall staff will have received human rights educationin this way. Moreover, a number of staff, who hadreceived human rights training, did not feel it hadbeen put into context. At times, they were able toapply their human rights knowledge to their workwith homeless non-UK nationals. For example,when asked about the relevance of human rights tothis issue, one interviewee replied:

“I suppose, like Article 6, right to a fair trial, in terms oflike, you know, making sure that you know, if decisionsare going to be made, making sure that theyunderstand, because if they don’t, then that is notgiving them a fair... I know it is not a fair trial, but fairassessment – you know what I mean […] Yeah, andArticle 8, like, the right to private and family life, that isanother one that would be relevant as well.” (Trustinterviewee)

Nonetheless, for the most part, although aware ofthe various rights contained in the ECHR,interviewees were not aware, or confident about,how these rights applied to homeless non-UKnationals excluded from homelessness support:

“I think the difficulty is, even though you know you areaware of the human rights, how does that actually fitwith our, you know, our policies and procedures and,you know, it is difficult, because you think it is obviouswe should be respecting people’s human rights and,you know, if this lady can’t even find food for herchildren, surely the Trust has a right to provide, but,you know, I suppose it is just training would behelpful.” (Trust interviewee)

Finally, in terms of responsibilities under Article 3 ofthe ECHR (freedom from inhuman and degradingtreatment), one Social Security Agency (SSA)interviewee felt quite clear about Trust duties:

“Whoever is the bottom line financial provider, if thatwould be the social services [the Trust] providing


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toward homeless non-UK nationals. In this respect,interviewees were candid stating that, for the mostpart, training and support had been extremelylimited. For example, when asked if there isenough support, the following interviewee replied:

“Not particularly, no. As I said, I have been sort oflearning…. I think, it would be stupid of me to say,learning by accident rather than design. I am keen tolearn, keen to see what is going on out there.” (Trustinterviewee)

Despite the lack of training, interviewees statedthat they could rely on social work colleagues foradvice and on-the-job learning. The investigatorsencountered staff with relevant expertise and whowere making efforts to assist others in this area.However, this must not detract from theoverarching concern about the lack of higher leveltraining. The Commission is concerned that it isinappropriate to expect individual staff members toprovide peer support in the absence of training,which should be provided to at least a core set ofstaff within each Trust. Interviewees oftenacknowledged that it was difficult to identify aproper response without authoritative writtenprocedures:

“But you don’t have your policies and procedures thatyou are able to lift out those types of scenarios. If afamily are destitute and they are not wishing to returnto their country of origin, what is social services [theTrusts] responsibility?” (Trust interviewee)

Related to the issue of training, the investigatorsalso asked interviewees if they had receivedguidance from the Trust or the Department whichwould help them respond to requests forassistance from homeless non-UK nationals.Again, interviewees admitted that guidance isscarce. The absence of guidance for Trust staffwas also recognised by those working in thevoluntary sector:

“Some hospital social workers are very good, butsome don’t understand their duty. When dealing at amanagement level, the relationship is moreconstructive, but you shouldn’t have to rely on thislevel of communication, as it is time consuming andmore formalised.” (Voluntary organisationinterviewee)

A number of voluntary organisations recognisedthat the Trust needed to do more, but indicatedthat this was achievable:

“Social services [the Trust] – it is not to blame, butthey have no structure in place. The issues are toonew and no one has identified who in social services[the Trust] is working on housing issues, race, etcetera. But I think this is something they can move onand improve.” (Voluntary organisation interviewee)

On the whole, the investigators found an absenceof formal guidance and training within each Trust inrelation to non-UK nationals who are ineligible forhomeless assistance and benefits. This translatesinto a lack of support for staff, who are required torespond to individual cases as best they can,without guidance, at times using only their owninitiative. This represents an unsatisfactorysituation for staff and risks an inconsistentapproach toward protecting the human rights ofhomeless non-UK nationals.

The investigators attended a DHSSPS workshop on‘social care issues and non-UK nationals’. The aimsof the workshop were to identify issues confrontingTrusts and to inform the Department about whichissues it needed to pursue. While the Departmentis actively engaged in pursing the workshopoutcomes, at the time of writing, there has been nocomprehensive guidance on how Trusts shouldrespond to non-UK nationals who are not eligiblefor homeless assistance or welfare benefits.

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Staff attitudes

When asked about their approach toward requestsfor assistance from non-UK nationals, intervieweesstated that they do not discriminate because theirresponse is the same for non-UK nationals as forUK nationals. One Trust interviewee explained:“They would be treated exactly the same way, youknow, and we would give them equivalententitlements that a UK citizen would get”. Theinterviewee was referring to equality of treatmentand how important it is that everyone is treated thesame. Nevertheless, the investigators found thatat times interviewees did not appreciate thedifferences that exist for non-UK nationals.

Therefore, while staff endeavour to treat non-UKnationals in an equal manner, entitlement tohomelessness assistance is not the same. Fornon-UK nationals, who are homeless and destitute,the only possible route to statutory support may bethrough the Health and Social Care Trusts. Incontrast, UK nationals are not forced to rely onTrusts for this type of assistance.

Overall, despite the absence of guidance andsupport, Trust interviewees revealed a great deal ofconcern for, and a willingness to help, homelessnon-UK nationals. Interviewees felt that even ifthey were unclear about the nature of their duty ofcare, they definitely had a duty and would alwaysdo something to help. Others felt that regardless oflegislative criteria, as a social worker, they had ahigher ethical duty to help individuals in need:

“We are all from the social care background and weare all registered with the Northern Ireland SocialCare Council, and if you do something that eventuallywould result in somebody with a serious injury or adeath, our registration is at stake. So I think we all erron the side of caution, yeah, and we try and be ashelpful. Now, it is very frustrating for us because yourhands are tied […] Other organisations […] canmake a more clinical decision and don’t get involved.”(Trust interviewee)

However, this attitude was not reflected byeveryone. In a very small number of instances,interviewees revealed a negative attitude towardnon-UK nationals. This was reflected by aperception that ‘local people’ cannot accessaccommodation because of migrants:

“A local person couldn’t get a house because all theprivate accommodation was rented to foreignnationals and asylum seekers.” (Trust interviewee)

In addition, as the following statementdemonstrates, some staff expressed negativeviews about particular nationalities:

“Alcohol would be a big issue and domestic violencewould be a big issue, especially with the Polish andthe Romanians.” (Trust interviewee)

In one instance, an interviewee used inappropriateterminology and expressed a much-exaggeratedview regarding the NIHE’s responsibilities towardundocumented migrants who are referred to, in thefollowing transcript, as ‘illegal’. The investigatorsrefer to this example for two reasons: first, theterminology is inappropriate and, second, it isfactually inaccurate:

Interviewee 1: “[X] House is totally for illegalimmigrants, generally, and what Iwas surprised at…”

Interviewee 2: “Or they are foreign nationals, notnecessarily…”

Although Article 18 payments cannot be used as apermanent substitute for homelessness assistanceand welfare benefits, they can be provided tonon-UK national adults if failure to assist themunder Article 18 would result in breach ofConvention rights or rights under the EC Treaty.56

The potential use of Article 18 for non-UK nationalfamilies, who are ineligible for homeless assistanceand benefits, was acknowledged by some Truststaff but it was not always understood in the sameway. Therefore, in the majority of instances,interviewees cited their duty as extending only tochildren. In other instances, this could includeadults with children, if the risks associated withhomelessness were affecting the wellbeing of thechildren. Therefore, some staff felt that it wasfeasible to provide support to the family through‘children in need’ provisions under Article 18 of theChildren Order:

“Well, I’m clearer on when you look at Article 17 and18, finding a child in need and then providing for achild in need […] I am happier with that; talking tothe line manager, my line manager, and sort of seekingany services[…] through those, that range of articles.”(Trust interviewee)

Nevertheless, it was not clear in whatcircumstances this type of support would beprovided. The investigators did not find anyguidance on this issue and staff often indicatedtheir own concerns about operating in a “policyvacuum”. While some were happy to use Article18 of the Children Order, others were not:

“…because our Article 18 payments are notwell-defined and, indeed, some of the legal peoplewould say, ‘because we have Article 18 payments, wecan finance the world’. Now clearly, we can’t.” (Trustinterviewee)

For some staff, providing housing and financialsupport in the context of accepting responsibilityfor the welfare of children presented challengesand serious financial difficulties:

Interviewee 1: “Having visited, the heat belchingout in hot weather, and I am saying,‘what do you need the heat on for?’.You know what I mean, but theHousing Executive – because Ifollowed it up myself – there wasno expense spared. Now the sadthing is, where there are illegalimmigrants or what I am told... nowI haven’t tested it out – when thestatus of illegal immigrants, theHousing Executive have aresponsibility and I think paymentsare slightly above the bar.” (Trustinterviewees)

Of course, the interviewee is incorrect. Thepayments referred to are not ‘above the bar’because the NIHE has no responsibility towardundocumented migrants who are prohibited fromseeking homelessness support and welfarebenefits. Indeed, if the NIHE is supporting non-UKnationals in the manner suggested, they are mostlikely to be asylum seekers or persons with refugeestatus. It is clear from this, and other examples,that Trusts need to provide audited, refreshertraining on diversity and anti-racism.

Families with children

Prior to beginning the fieldwork for theinvestigation, it was apparent that, in certain cases,Trusts may be the only route to statutory supportfor homeless non-UK national families who areineligible for homelessness assistance and benefits.For non-UK nationals with children, Article 18 of theChildren (Northern Ireland) Order 1995 can be usedto assist the children where they are assessed as‘children in need’. This is regardless of nationalityor immigration status. In addition, payments inrespect of adults who are family members of‘children in need’ may also be made in certaincircumstances under Article 18.


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56 See Schedule 3 of the Nationality, Immigration and Asylum Act 2002.

Most interviewees were clear about the extent ofTrusts’ responsibilities in cases involving childprotection concerns. However, although notexplicitly stated by interviewees, the prevention ofaccess to homelessness support and welfarebenefits is forcing intervention from Trusts that mayraise concerns under Article 8 (right to private andfamily life) of the ECHR. For non-UK nationalsexcluded from housing and welfare benefits, Truststaff were anxious about their ongoing involvementwith the family when, ordinarily, if the parents wereeligible for homeless assistance, there would be nochild protection concerns:

“A lot of these families, if they had the means withwhich to work, if the children were in school, inreceipt of medical treatment, if the parents were ableto work as they have an entitlement to, we wouldn’tbe anywhere near these families, because their careis fine.” (Trust interviewee)

One interviewee felt that on a literal interpretationof legislative duties, Trusts’ responsibilities are tothe child and not to the family. It is important tostate that the investigators did not find anyevidence of children having been removed fromtheir families due to lack of access to public funds.Nevertheless, in two instances, the investigatorsreceived a report that possible removal had beenthreatened:

“It was an [Accession state] family who were notallowed to work in UK. They were destitute. Socialservices [a Trust] advised them that their kids wouldbe taken into care. [We] advised the family to acceptvoluntary return and to come back to UK and registerfor work properly.” (Voluntary sector organisation)

It is the Commission’s view that children should notbe removed, or threatened with removal, when thewelfare concerns stem from the family’s exclusionfrom housing and financial support, and not fromchild protection issues. In particular, theCommission draws attention to Article 3 of theUnited Nations’ Convention on the Rights of the Child

“…the child care bit is our bread and butter. That isthe bit we know backwards. That isn’t an issue butwhen you have these add-on problems that normallyyou don’t have to deal with… because if a familydon’t have a house, they go to the Housing Executiveand they are re-housed or they are put in a hostel.That isn’t the bit that we normally have to deal with,but because they are not entitled to housing, becausethey are not entitled to [benefit]; those are add-onsthat we have to deal with within our work. So thoseare the difficult bits, and if you have a family whodon’t have a home and don’t have an income, thereisn’t any way on God’s earth that the Trust can, fromnow to infinity, finance housing and benefits for all thepeople who need it.” (Trust interviewee)

While a number of interviewees had providedaccommodation and financial assistance forfamilies, they had received no guidance on howlong this service could be provided. While manystaff were pragmatic, locating their approach withinthe context of need, others disclosed theirfrustration at the administrative and policy lacuna:

“I don’t think any social worker that is working with afamily or is assessing a family, where there are youngchildren – and these children need food and theyneed somewhere to stay – doesn’t try to do theirdamnedest to provide as much support as possible.[…] However, there needs to be something at anadministerial level or further down…. in relation tothis country. The Trusts even, need to have a policythat, okay, this is what we do in this case, this is whatwe do in this case, you know, we need to havesomething.” (Trust interviewee)

The absence of formal guidance, at both Trust andDepartment level, is problematic. While thedecision to give or not to give assistance is madeby senior level staff, and not junior social workers,it is still the case that senior staff are operatingwithout guidance. This means, ultimately, thatdecision-making takes place without reference topolicy and/or guidance.


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She was pregnant and had one child. When askedif there was enough help available, she replied:

“How do I explain that? Not too sure. It is not that Iam complaining for this roof above my head and Ihave food, but if I could work I could go out and buysomething for myself and it is a different feelingaltogether to have your own money.” (Non-UKnational interviewee)

For an individual to have her, or his, own money isimportant financially, but it also has an impact onthe emotional wellbeing of families who are tryingto provide food and basic needs for their children.

Most notably, the investigators were concernedabout the use of food vouchers in lieu of cash.There is a stigma attached to the use of vouchersand they are not always practicable. If the familydoes not have access to financial support, vouchersdo not always permit them to purchase all theitems that they may need. When asked how shefelt about the vouchers, the woman replied:

“It is okay, but the children always wanted, you know,to get something and that is quite difficult when youdon’t have money, for the person.” (Non-UK nationalinterviewee)

Various groups have reported on the inadequacy ofvouchers as the sole means of support. Forexample, reporting on voucher support (known as‘hard case’ support) provided to refused asylumseekers in England and Wales, the Joint Committeeon Human Rights (JCHR) stated that vouchers areinadequate insofar as they do not permit purchaseof items beyond food and toiletries. TheCommittee concluded that the system of vouchersupport is “inhumane and inefficient”:57

(CRC) (the ‘best interests’ principle), Article 16 ofthe CRC (arbitrary or unlawful interference withprivate and family life), Article 18 of the CRC(appropriate assistance to parents for theupbringing of the child) and Article 27 of the CRC(right of the child to an adequate standard of livingand measures to assist parents).

Levels of support for non-UK national families

It is important to emphasise the fact that, in severalcases, Trusts did provide extensive support tohomeless non-UK national families. Therefore,based on the case files reviewed, Trusts didintervene and provide financial support and/oraccommodation. In addition, the informationprovided by the Trust and voluntary sectorinterviewees suggests that Trusts are assistinghomeless non-UK national families in other cases.However, the investigators did not find anyguidance to ensure consistency in the operationalapproach. While in some instances, the familywould receive weekly payments in the form ofcash, in other cases, support was provided throughvouchers or purchases made in advance by Truststaff.

Once Trusts decide to provide assistance, theamount does not appear to be based on clearassessment of need. While it may not be possibleto set out minimum amounts, payments to familiesshould be based on a proper account of potentialcosts, for instance, accommodation, food, clothingand travel. The investigation found that, in somecases, support was sufficient; for example, in atleast two cases, the Trust provided weekly cash,rent and food vouchers. However, in other cases,the support was nominal and irregular. During aninterview, one woman, with no access to publicfunds, indicated that the Trust had provided aweekly food voucher worth £35, but that this wasreduced to £25 and she was no longer certain thatshe would receive this weekly payment.


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57 House of Lords, House of Commons Joint Committee on Human Rights (2007) The Treatment of Asylum Seekers, Volume I, Report and Formal Minutes Tenth Report ofSession 2006-07, HL 81-I/HC 60-I TSO Ltd, London, pp 36-38, para 110.

tracking down Trust staff responsible for adultsproved to be one of the most difficult aspects ofthis investigation. While, on a policy level there is agap in relation to Trusts’ support for migrant adultswith children, there is a mammoth void in relationto migrant adults without children. As oneinterviewee stated in response to the investigators’queries on this issue:

“Sometimes you would get adults coming, saying that‘we know you have helped people in the past’, but wehave no remit for adults.” (Trust interviewee).

Nevertheless, after repeated efforts, theinvestigators were provided with the contactdetails for staff with responsibilities relevant toadults. The investigators were advised to invite forinterview senior level staff from Belfast, Dungannonand Cookstown, with responsibilities for specificareas of adult service delivery. Although there is nosuch thing as ‘adult services’ within Trusts’programmes of care, there are teams within eachTrust providing services to adults if the adult inquestion falls within their remit. For the most part,the teams within each area covered by theinvestigation were organised into the followingcategories:

• Disability and sensory impairment

• Mental health and learning disability, and

• Older persons

Staff from each of these teams participated in aninterview for the investigation. During this, it wasstated that there might be a route to support for ahomeless adult if she or he can be shown to fit intoone of the vulnerabilities known to Trusts. In themajority of cases, Trust staff felt that there is nolegal duty to help if the person in question ishomeless but not presenting with mental illness,physical ill-health, disability, learning disability, orsensory impairment, or requires elder care (beingaged 65 or over). The following interaction

We believe that the section 4 voucher schemediscriminates on the grounds of nationality, and couldconstitute a breach of Article 14 in conjunction withArticles 3 and 8 ECHR and of Articles 3 and 8themselves. There are particular responsibilitiestowards women, especially relating to pregnancy andpost natal treatment. In many cases theseresponsibilities are not being met and there is animmediate need to provide financial support foressential items not covered by the vouchers, includingclothing, baby items, telephone costs and travel.58

In addition, in its latest report, the IndependentAsylum Commission has recommended that, in thiscontext, “the use of vouchers to provide supportshould end”.59 The Commission is of the view thatthe same human rights objections apply wherevouchers are used as the sole means of support fornon-UK nationals by Trusts in Northern Ireland.While recognising that food vouchers are providedas an emergency form of support, on their own,they are often inadequate, particularly in relation tothe needs of women and children.

Finally, in various cases, the investigators foundthat family members had to travel to Trust offices inorder to collect cash and/or voucher assistance. Ina few cases, and notably in one case involving apregnant woman, the journey was considerable,with the money for travel having to be taken fromTrust assistance. Obviously, if assistance isprovided in a voucher format, it will not be possiblefor the family to pay for travel out of thisassistance.

Trusts’ response to non-UK national adults

Potentially, Trusts may be the only statutory agencyable to assist non-UK national adults who areexcluded from homeless assistance. Therefore, theinvestigators wished to establish Trusts’ handling ofcases involving homeless non-UK nationals who areadults without dependent children. However,


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58 See similar findings in Prior J (2006) Destitute and Desperate: A Report onthe Numbers of ‘Failed’ Asylum Seekers in Newcastle upon Tyne and theServices Available to Them, Open Door (North East), Newcastle upon Tyne, p17.

59 Independent Asylum Commission (2008) Deserving Dignity: How to Improvethe Way We Treat People Receiving Sanctuary, Third Report of Conclusionsand Recommendations, IAC, London, Recommendation 2.9.9.

When asked about their approach to adults, severalinterviewees expressed fears about a recurrence ofthe tragedy in Coleraine involving a Ukrainianwoman who was homeless.60 They recalled howshe had ‘slept rough’ during the winter period and,as a consequence, had both legs amputated due tofrostbite:

“I am not sure which country… she was a foreignnational anyway, up in Derry, that had to do a doubleamputation because of hypothermia or something, awhole enquiry. And there was an uproar andwhatever, but then that all seemed to have died awayand there has been no response in terms ofresources.” (Trust interviewee)

A number of interviewees cited this incident andstated that they personally would not “see anyoneon the street”. Still, there were no safeguards inplace to ensure that this could not happen again.Therefore, while many staff felt certain that,morally, they ought to respond to adults in need,they remained unclear about the extent of Trusts’duties. As one interviewee revealed, when referringto a homeless adult male with mental health needs:

“[…] the [A8 national] gentleman, I mean, he reallyhad nothing and it was just the prospect of having,you know, to pay for everything. […] He voluntarilytook himself out of the situation and that, so we did,as far as I am concerned, we did discharge our duties,but what exactly is our duty?” (Trust interviewee)

The dearth of guidance in relation to supportservices for adults was matched by a severe lack ofconsistency in approach regarding the levels ofsupport provided on the ground. In particular, theinvestigators found that service delivery forhomeless non-UK nationals appeared to depend onarbitrary factors such as geography and referralsource:

“I don’t know whether that operates in other areas ornot, to be truthful with you, but that is how it operateswith us.” (Trust interviewee)

represents a typical response from Trustinterviewees:

Q: “Do you know is there anywhere within socialservices [the Trust] you would refer someone whois over 18?”

A: “Over 18, now not specifically in our remit here; weare family and child care, so, not within our socialservices [Trust]. Now, maybe if there was mentalhealth issues, or learning disability, then, youknow, you would present them to learningdisability or mental health.” (Trust interviewee)

However, it is the Commission’s view that ahomeless person, with no access to homelessnesssupport, is in need whether they have mentalill-health or physical disability. It may not be inevery case that a homeless non-UK national isentitled to support from the Trust but they shouldstill be considered for assistance. When this issuewas discussed in interview, a minority of Trust staffaccepted that there may be a gap:

“You have an identified need for the sexual violencestrategy, you have identified need for the domesticviolence strategy, but nobody in the department wantsto put their hand up for adult protection.” (Trustinterviewee)

While the Department indicates that all Trusts havea policy for vulnerable adults, a few intervieweesfelt that in relation to destitute non-UK nationaladults, Trusts are severely lacking in their approach:

“You know, there isn’t equality of treatment and that isnot, you know, from our point of view; we talk aboutsocial services [the Trust] from a child care point ofview; there is absolute equality, because it isgoverned by our own professional standards, ourethics, our legislation and our procedures. Whenthere aren’t children concerned, I absolutely believethat there would be human right issues, in terms ofequality, you know, family life and all of that, yeah.”(Trust interviewee)


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60 Chrisafis A (2005) ‘Migrants’ grim deal thrown into tragic relief: Ukranian woman’s double amputation offers new evidence of social problem in Northern Ireland’ TheGuardian, 13 January 2005.

Interagency co-operation

Trusts operate an ‘Emergency Duty Team’ (EDT)within various Trust areas. The EDT responds to allrelevant queries which occur out-of-hours, between5.00pm and 9.00am, and over the weekendperiods, from 5.00pm on Friday until 9.00am on thefollowing Monday morning. Given the relevance tothe investigation, the investigators spoke with stafffrom the EDT for each geographical area covered bythe investigation. When asked if they had contactfrom non-UK nationals, the staff stated that thisarose mainly in relation to homelessness:

“They tend to be in relation to homelessness that wewould have contact with them. […] sometimes it canbe in relation to the police contacting us but I wouldsay the majority were housing related.” (Trustinterviewee)

It was explained to the investigators that the EDT,in agreement with the NIHE and in accordance withhomelessness legislation, accepts responsibility forout-of-hours homelessness cases. This means thatthe EDT will find emergency accommodation for ahomeless person if staff believe that the person isin ‘priority need’. Within this arrangement, it isunderstood by the Trust that the NIHE pays for thecost of accommodation and should follow up on thenext available working day, by conducting a fullhomelessness inquiry. However, there were mixedunderstandings as to how this service operated inpractice. It was explained to the investigators, bythe NIHE staff, that the EDT refers homeless peopleto the NIHE. In spite of this, Trust staff indicatedthat when they place a person in temporaryaccommodation overnight, they merely advise thatperson to contact the NIHE. Therefore, it wouldseem that there are no direct referrals from the EDTto the NIHE.

In many instances, the investigators sensed thatthe arrangement between the NIHE and the EDTwas a difficult one. Trust staff felt that there was aconflict between their duty to individuals in needand the NIHE homelessness criteria:

Through contact with voluntary sectororganisations, the investigators found instances ofsupport from Trusts only if the Trust had made theinitial assessment and referral. This concern wasalso disclosed by Trust staff:

“To be honest, I think that it is dependent on who theperson first presents to. If they present to us, yes, I dothink, if they come directly to you and you are onehaving to deal with it, and you have rung roundeverybody, you have tried everything you possibly can,and yes, I think social services [the Trust] by and largewill respond. But if they have gone to another agencyand that agency is ringing around us, I don’t know thatwe are just as accommodating and as amenablebecause it is somebody else’s problem.” (Trustinterviewee)

The manner in which Trust support was providedwas not based on any discernable policy orguidance and often dependent on who was leadingor pushing the case:

“I think we are in a senior enough position in the Trustas well, that if you ask in the finance department togive you something out of Article 15, 61 they willaccept... I have never been turned down for it.” (Trustinterviewee)

The Commission does not wish to disregard thehard work and efforts made by individual staff, inmany cases, and recognises that, in certaininstances, Trusts have provided extensive support.Nevertheless, there is inconsistency in relation tohow staff decide on the level and type of supportprovided. In other words, there is no guidance forstaff to ensure that when they do provideassistance, it is sufficient to ensure a minimumlevel of subsistence. As one interviewee explained:

“[…] there is no policy I have been able to obtain orno resources to do that, […] I needed something inwriting to say, that is what we must provide, but therewas nothing, no policy to say that I could […].” (Trustinterviewee)


57

61 Article 15 of the Health and Personal Social Services (Northern Ireland) Order 1972.

58


“We have a different duty of care then as well,because, in relation to the legislation, you know,unless you have a certain status, you know, you arenot eligible for Housing Benefit, et cetera. Then, youknow, the Housing Executive say, ‘well we are notgoing to accommodate you’. Obviously, we have astatutory remit and a duty of care towards families, so,I mean, we obviously have to see that through and wecan’t, you know, ignore people’s needs where peopleare at risk.” (Trust interviewee)

This conflict meant that, at times, when the EDTplaced people according to its understanding ofTrust duties, there was uncertainty as to whetherthe NIHE or Trust would cover the bill. This had anegative effect in individual cases and, in the longerterm, could reduce temporary accommodationoptions for the EDT. Therefore, certainaccommodation providers would no longer acceptreferrals of non-UK nationals from the EDT:

“If we get accommodation for somebody in a B and Bor a hotel or something like that, and that person hasgot particular needs, and […] the Housing Executivedid not pay the bill and doesn’t tell anybody, then thatplace often withdraws the services to ourselves andsay’ look, we are not taking any more referrals fromyou, thanks’. So, its an ever constricting market outthere.” (Trust interviewee)

The investigators asked Trust interviewees if theyhad been provided with guidance, either from theNIHE or from Trusts, on how to dischargeout-of-hours duties. In some instances, staff feltthat the direction they had was insufficient, beingsporadic and often provided through emailcommunications. The investigators were alsoconcerned about the absence of a formalagreement between the Trust and the NIHE for thedelivery of out-of-hours homelessness services.This was explained by one interviewee:

“We have no service level agreement with them, youknow. I mean, we have tried to put it on a differentbasis, by looking at the Housing Executive actually

paying something for the service to allow us to do awee bit more with it [...]. So, it is just tagged on towhat else we are doing, you know. There is no moneyin our budget that is set aside for the HousingExecutive’s work, but I think it would give a muchbetter way of doing things, because you know, wewould have to be accounting for how we are dealingwith their money in this respect and, you know, whatpeople we are accommodating and where we areaccommodating.” (Trust interviewee)

In general, Trust interviewees revealed that they didnot have much direct contact with othergovernment agencies, such as the Social SecurityAgency (SSA). However, there was a sense thatother agencies do not respond to people in need:

“[…] people are using the legislation to prohibitservices, rather than encourage people, you know, it islike, ‘oh we can’t help them, because we have thislegislation and this legislation’ and the [Social SecurityAgency] are saying, ‘oh they have no duty’.” (Trustinterviewee)

In this respect, some staff expressed theirfrustration at what they perceived to be a lack ofinteragency co-operation in this area.

Relationship with voluntary organisations

As with the other government agencies involved inthe investigation, Trusts relied heavily on the help ofvoluntary organisations when responding tohomeless non-UK nationals. This included turningto voluntary groups for guidance and advice:

“There is nobody specialist within the Trust. We arevery heavily reliant on the likes of migrant supportworkers and Citizens Advice Bureau because, evenwithin supervision, you aren’t going to line managers –I suppose they haven’t received any training.” (Trustinterviewee)

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Therefore, Trusts were at times relying on thevoluntary sector for the provision of services tohomeless non-UK nationals. They also turned tothe voluntary and charitable sector for help withfinancial assistance and accommodation. However,there was generally a lack of understandingregarding the availability of funding for voluntarygroups and the difficulties that they might face interms of accommodating ‘ineligible’ non-UKnationals. The following conversation between twoTrust interviewees illustrates this point:

Interviewee 1: “Can they not be referred to, is itNICRAS? I am not sure, NICRAS.”

Interviewee 2: “NICEM, you mean?”

Interviewee 1: “Can they not be referred to them?”

Interviewee 2: “They don’t provide accommodationeither.”

Interviewee 1: “But they can help financially, theycan help, they have some resourcesthere.”

In addition, in cases of domestic violence,interviewees felt that Women’s Aid could alwayshelp. As with the other government agencyinterviewees, there was a lack of awarenessamong Trust interviewees about the funding criteriafor refuge accommodation, which prohibitsWomen’s Aid from using its core funding to support‘ineligible’ non-UK nationals:

“Women’s Aid is up here, basically, but that is exactlythe same, you know there wouldn’t be any distinctionbetween, you know, our own nationals, versusnon-EUs, so that is exactly the same.” (Trustinterviewee)

Trusts should continue to appropriately refer tovoluntary sector organisations for advice andsupport in relation to homeless non-UK nationals.However, there may be cases where the Trust isresponsible for providing services under Article 18of the Children (Northern Ireland) Order 1995 orArticle 15 of the Health and Personal Social Services(Northern Ireland) Order 1972. In this type of case,voluntary organisations that are accommodatinghomeless non-UK nationals should be provided withthe Trusts’ financial support.

investigation involved interviews with staff at alllevels across eight local offices and review of asample of 124 case files.

LegislationBenefit legislation is an extensive and complex areaof law. This report does not attempt to provide adetailed analysis of social security law and shouldnot be relied upon as such. This section of thereport will focus only on those areas most relevantto the investigation – Jobseeker’s Allowance,Income Support and Social Fund payments.62

Jobseeker’s Allowance (JSA) is an out-of-workbenefit which is assessed as either income basedor contribution based. Individuals who have workedin the UK for a number of years may be entitled tocontribution based benefits and will not have tomeet the same eligibility criteria as those who areseeking income based payments. Income Supportis a benefit for those who are unable to work full-time due to a specific reason such as incapacity orcaring responsibilities. Income Support can beclaimed by an individual who is a lone parent, acarer, sick or disabled, or a young person estrangedfrom their family.63 At present, both benefits arepaid at the same basic rate, as illustrated in Table5.1.64

Table 5.1 JSA and Income Support Rates

IntroductionThe Social Security Agency (SSA) was establishedin 1991 and is an Executive Agency of theDepartment for Social Development. The Agencyadministers social security benefits for NorthernIreland, and for parts of London on behalf of theDepartment for Work and Pensions. It works underthe terms of a framework document which sets outits relationship with the Department and Minister.It operates through a network of 35 Jobs andBenefits/Social Security Offices and four centralisedbenefit offices.

The SSA was identified as relevant to theCommission’s investigation because it is the bodyresponsible for the provision of out-of-workbenefits. Access to such benefits, morespecifically Jobseeker’s Allowance and IncomeSupport, can act as a barrier to destitution as wellas a ‘passport’ to social housing and homelessnesssupport. This means that, in order to receivehomelessness support, a person must be in receiptof, or eligible to receive, a qualifying benefit.Individuals with no, or limited, access to publicfunds may be denied access to qualifying benefitsand, it follows, access to housing support, with theresult that they can end up destitute and homeless.

The Commission acknowledges the fact that thestaff of the SSA must adhere to immigration andbenefit legislation which limits the entitlement ofsome non-UK nationals. Therefore, beyondapplying the benefit rules it is not directlyresponsible for homelessness provision; however,the decisions they make have importantramifications for persons facing homelessnessand/or destitution. As a result, this chapterfocuses on the daily decision-making processes andpractices which affect a person’s access to benefit.In an effort to understand the processes, the


5 Social Security Agency“It’s only the people with nothing and nobody that turn up to jobs and benefits.”(SSA interviewee)

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62 On 27 October 2008, Incapacity Benefit and Income Support paid onincapacity grounds were replaced by Employment Support Allowance aspart of a government initiative to encourage people back into appropriateemployment. The fieldwork for this investigation ended in the same month,before this change occurred; therefore, none of the case files reviewedinvolved ESA and the focus of the chapter is on JSA and Income Support.

63 Income Support on incapacity grounds has, since October 2008, beenreplaced with Employment Support Allowance.

64 In addition to the base rates, there is a range of add on premiums availablein certain circumstances. The current rates of these premiums are availableat: http://www.dsdni.gov.uk/index/ssa/benefit_information/benefit_rates.htm [8 July 2009].

Applicant Rate

Persons under 25 years £50.95

Persons over 25 years £64.30

Couples over 18 years £100.95

common travel area, which includes the UK, theRepublic of Ireland, the Isle of Man and the Channelislands, are generally deemed to have a right toreside within the UK. Applicants from A8 countriesmay only be granted a right to reside once theyhave registered work under the Home OfficeWorker Registration Scheme (WRS).70 People fromA2 countries are not deemed to have a right toreside unless they have undertaken WorkerAuthorisation or are students or self-employed.71

Those from outside the European Economic Areamay be granted a right to reside if they successfullyapply for leave to remain in the UK, for example, asa spouse, a family member, a student, or a refugee.However, even if granted a right to reside, a personmay be subject to the ‘no recourse to public funds’rule meaning she or he may be allowed to live inthe UK but prohibited from accessing benefits. Byapplying for Jobseeker’s Allowance or IncomeSupport, individuals who are subject to immigrationcontrol could be in breach of their right to resideand face removal.

When applying for benefits, a person must providedocumented proof of their right to reside, forexample, a passport or identity card. Individuals,who come to the UK to join a spouse or familymember, may also be required to provide marriageand birth certificates. When deciding on anapplication SSA staff are required to record thereason for a successful or unsuccessful claim,citing the relevant legislation.

Habitual residence test

In addition to possessing a right to reside in the UK,benefit applicants must be deemed to be habituallyresident. This additional measure was introduced

Right to reside

In order to be entitled for either of the out-of-workbenefits, a person must satisfy a two-part test.The person must have a right to reside in the UKand she or he must be deemed to be habituallyresident. During the course of the fieldwork, theSSA staff interviewed gave mixed responses whenasked which part of the test should be applied first.In some instances, staff clearly felt that without aright to reside there was no point in undertakingthe habitual residence test (HRT). However, itshould be noted that a Tribunal of Social SecurityCommissioners65 in Great Britain has held that it isunlawful to decide the habitual residence testbased on whether a person has a right to reside inthe UK, without first deciding if the person isactually habitually resident in the UK. Thisjudgment is reflected in SSA guidance to decisionmakers.66 The legislation for both JSA and IncomeSupport elaborates on the concepts of ‘habitualresidence’ and ‘right to reside’, and defines themeaning of people from abroad.67 Some categoriesof people do not have a right to reside in the UK,including individuals from outside the Europeancommon travel area; those from within the EU whohave been in the UK for over three months andcannot be classed as a ‘worker’;68 those from theEuropean Economic Area (EEA) who have notsatisfied the conditions of the relevant Home Officeworker requirements and; finally, those fromoutside of the EEA who are subject to immigrationcontrol.69

The criteria for achieving a right to reside in the UKdiffer, depending on which part of the world theperson is from. Individuals from within the


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65 CIS/2559/2005.

66 Social Security Agency (2009) Decision Makers Guide, Vol 2, Chapter 7, Part3, para 071185; and, as referenced in correspondence from the SSA, itsImmigration and Income-related Benefits Handbook, p 7.

67 The legislation for the administration of Jobseeker’s Allowance is containedin the Jobseeker’s Allowance Regulations (Northern Ireland) 1996 asamended. The relevant legislation for Income Support is the Income Support(General) Regulations 1987.

68 Council Directive No 2004/38/EC provides for the free movement of workersand self-employed persons throughout the European Union. The Directivehas been transposed in to the UK domestic law via the Immigration(European Economic Area) Regulations 2006.

69 In addition to workers, a number of other categories of persons do have aright to reside in the UK under Regulations 5, 7 and 14 of the Immigration(European Economic Area) Regulations 2006 including self-employedpersons, jobseekers, students, self sufficient persons and persons fromoutside of the EEA if they are a family member of an EEA national.

70 Or if they are students or self-employed.

71 Regulations 6 and 14 of the Immigration (European Economic Area)Regulations 2006.

Community Care Grants may be available to peoplewho:

• are leaving institutional care or a care home

• need help to stay in their own home

• are part of a family under exceptionalpressure

• are caring for a prisoner or young offenderon release/licence

• are setting up a home as part of a plannedresettlement programme, or

• are incurring travel costs for certainspecified reasons.

Budgeting loans are intended for individuals whorequire essential household, or other essential,items which they cannot afford to pay for in a lumpsum. Crisis Loans may be available to people whorequire immediate help to meet day-to-day livingexpenses. A number of other specific paymentsare also available including Sure Start MaternityGrant, Funeral Payments, Cold Weather Paymentsand Winter Fuel Payments. Loans and CommunityCare Grants from the Social Fund are discretionaryand do not provide a standard amount.

The most relevant branch of the Social Fund, interms of persons who are in danger of destitution,is the crisis loan which could, in theory, be used topay for temporary accommodation, food and otheressential day-to-day expenses. Crisis Loans areintended as a safety net for applicants who as aresult of disaster, or in an emergency, are unable tomeet their immediate, short-term needs.73 Inaccordance with departmental guidance, the crisisloan should be the only means of avoiding seriousdamage or risk to the health and safety of theapplicant or a member of the family. In the case ofnon-EEA nationals, persons subject to immigrationcontrol and a person who is treated as a personfrom abroad for benefit purposes, the need must beto “alleviate the consequences of a disaster” and

in 1994 as a means of preventing so called ‘benefittourism’, meaning that people who had a legal rightto live in the UK could not enter, or return to, thecountry simply to exploit the benefit system.72 Thehabitual residence test (HRT) applies equally to UKand non-UK nationals; it is generally used in theprocess of benefit applications by individuals whohave not lived full-time in the UK in the two yearsprior to their benefit claim. It is also applied to UKnationals who have returned to the UK after aperiod of living abroad.

The habitual residence form considers a range ofinformation such as when the applicant arrived inthe UK and with whom, the type of accommodationshe or he lives in, whether she or he is enrolled in acourse of study, has opened bank accounts, orregistered with a doctor. The information providedis then assessed by the SSA against the followingquestions:

• Is the applicant voluntarily in the UK?

• Is the applicant resident in the UK?

• Has the applicant a settled intention toremain in the UK?

• Has the applicant been in the UK for anappreciable period of time?

The SSA makes a decision on a case-by-case basisas to whether an individual is habitually residentand consequently eligible to receive benefits.

Social Fund

Although not an out-of-work benefit, applicants tothe Social Fund are also indirectly subject to theright to reside rule and habitual residence testbecause a criterion for most Social Fund paymentsis that the applicant must be in receipt of aqualifying benefit. The Social Fund is administeredby the SSA and is intended to provide assistance toindividuals, on a low income, by means of lumpsum payments, grants and loans. The fund isdivided into a number of different categories.


62

72 The HRT was introduced under the Income-Related Benefits Schemes (Miscellaneous Amendments) (No.3) Regulations 1994 and has been amended on a number ofoccasions since.

73 House of Commons Select Committee on Social Security (2001) The Social Fund, Third Report of Session 2000-01, HC 232, TSO, London, para 61.

not match statements provided by the majority ofstaff. When asked about gaps in training, one staffmember, not a decision maker, stated that notraining had been received at all for his current role,never mind human rights training.77

“Yes [there are training gaps] like human rights. Thereis lots of training I think you would need for this job.For instance, I deal with a deaf gentleman quite often.He is profoundly deaf and I can’t sign, so, basically wewould spend a good hour sometimes writing littleletters to each other, trying to explain things and it isjust not ideal and I just don’t think it is very goodcustomer service, but I have asked for the training, butthey can’t let me go for any training because theycan’t afford to let me leave so it’s catch-22.” (SSAinterviewee)

Staff were asked whether they had encounteredanything in their work which would concern themwith regard to human rights. The answers providedwere illustrative of a lack of understanding of theroles and responsibilities of the SSA and otheragencies in relation to human rights andhomelessness:

“I know everybody has the right to a roof over theirhead but, as far as I am aware like, the HousingExecutive has to actually within 24 hours re-housethem, somewhere, far as I have been told… I don’tknow if that is true like, but there is no reason reallyfor anybody in this day and age to be homeless,because there is a lot of hostels out there like, youknow, there is. I mean there is too many of them forpeople to not have a roof over their head.” (SSAinterviewee)

The following quote corroborates the lack of basicawareness of human rights which exists amongsome staff members:

does not allow for emergency situations.74 Theloans are interest-free and must be recoverable.Decisions are made on the day of application byspecialist Social Fund officers.75

FindingsHuman rights

Given that the remit of this investigation was toconsider the human rights implications ofhomelessness among non-UK nationals, interviewswith SSA staff involved human rights relatedquestions. As a government agency, the SSA has aresponsibility to ensure that the actions of theirstaff are in compliance with the Human Rights Act1998. Although the Commission is not suggestingthat SSA staff have acted contrary to human rightslaw, it is of the opinion that at least a basic level ofhuman rights training would be necessary to makestaff aware of their obligations. Overwhelmingly,staff who were interviewed reported that they hadnot received any specific human rights training’.This is contrary to the fact that the SSA delivershuman rights training as part of staff inductions.76

A minority of staff interviewed referred to havingreceived training in recent years, which appearedto be training on diversity and equality rather thanon human rights. One member of staff recalledreceiving some human rights training:

“We get them [human rights training] with ourinduction, there is a wee human rights package… It isa while since I had my induction so... We do get themthough… we are aware of the Human Rights Act andwhat have you. You have to be aware of all thosethings.” (SSA interviewee)

Another member of staff claimed that human rightstraining was mandatory and delivered regularly, andalthough confirmed by SSA management this does


63

74 Social Fund Direction 16 – Crisis Loans for students and persons from abroad.

75 According to the SSA, for the financial year ending March 2009, decisions on all crisis loan claims were made on the day of application.

76 The investigators requested details of the training and were satisfied that the issues covered were appropriate and relevant.

77 During factual accuracy checks on this report, the SSA management responded to this comment: “This is patently incorrect as all staff received training appropriate to theirroles”. Management further added: “the Agency has a robust training and consolidation programme for all staff which involves structured classroom training followed by afurther period of consolidation whereby staff are mentored in a controlled environment. During this period, all work is monitored and checked by experienced staff to ensurean acceptable standard of accuracy. Only when that standard is reached is the member of staff considered suitable to work in the live environment. A strict record ismaintained of all training and consolidation received by staff”.

“The Social Fund would fall into the gap whereIncome Support is unable to provide because… say itis not clear that the person would be entitled tobenefit, the conditional entitlement has not beenproven to be satisfied or it is unclear as to whetherthere would be entitlement or not, there is a questionon it. Then Social Fund would step in where there isno provision available from the benefit.” (SSAinterviewee)

It should be noted that this lack of understandingand knowledge exists despite the fact that regularinformation bulletins are circulated from the specialadvisory officer in each district, and that SSAoffices hold weekly team meetings to discusschanges in legislation and operational issues.78

When asked if staff felt that they had enoughinformation to do their jobs, the response wasgenerally positive, with more than one staffmember interviewed stating that they received toomuch information at times:

“The information is there for us, I mean, they havesupplied everything for us. The Civil Service keepthemselves well covered, everything is there for usto… it is the same as the other Acts, equalopportunities and discrimination and things like thatthere.” (SSA interviewee)

Nevertheless, some staff confided that they hadnot received specific information or training toassist them with their jobs:

“I would have to say, no. I will be honest with you,the information that I have to give to these people andthe knowledge that I have to deal with these situationshas all been gleaned from my colleagues, and fromjust dealing with these people. I have never actuallyreceived any formal advice or training, to be honest.”(SSA interviewee)

When confronted with this comment, the SSAmanagement stated that they view informationsharing with experienced or senior colleagues as

“I have never had to contact human rights, never hadanything in this area that caused alarm.” (SSAinterviewee)

The legislation

As previously outlined, entitlement to out-of-workbenefits in the UK is dependent upon successfulapplication of a two-tiered test, which is aimed atpreventing benefit tourism. While there are noconcerns about the tests being discriminatory, asthey apply to everyone, there are a number ofgeneral concerns about the complexity of thelegislation and its application. A number of SSAstaff and voluntary agency staff interviewedcommented on the complexity of benefit legislationwhich is further complicated in the case ofindividuals from abroad. A failure to fullycomprehend the legislation may lead to theprovision of misinformation which, in turn, canmean that applicants are incorrectly denied benefitor mistakenly granted benefit which they will beforced to repay:

“Well, unless there is a change in the legislation, interms of benefit, we can’t do anything further.Obviously our legislation is quite complex, so anysimplifying of the legislation would be great.” (SSAinterviewee)

In the course of interviews with SSA staff, at alllevels of seniority, from across the three locations,it became apparent that there was a lack ofunderstanding among some staff about theentitlement of categories of non-UK nationals tobenefits. It should be noted, however, that theinvestigators did not uncover a lack ofunderstanding among the decision-making staffinterviewed. Gaps in training and learning wereparticularly evident when staff were questionedabout the safety nets available to homelesspersons. The following extract is typical of themisunderstanding among some of the staffinterviewed about how the Social Fund operates.


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78 In addition, the SSA management informed the investigators that “Special Advisory Officers are of Executive Officer I grade and based in each District to provide specialistadvice to staff”.

Table 5.2 Outcome of JSA claims

Table 5.3 Outcome of Income Support claims

The case files demonstrated that almost half of theapplicants failed to meet the right to residerequirement and were consequently ineligible forbenefits. The most frequent ground for failing tomeet the requirement was based either on a failureby A8 nationals to register or to complete theWorker Registration Scheme (WRS) (66.7 percent). Just over half of the applicants (52.4 percent) had a right to reside in the UK, mostcommonly as a result of EU free movement rights.Although over half of relevant benefit applicantsmet the right to reside requirement, not all weresuccessful in their applications because of theadditional need to demonstrate their habitualresidence.

The habitual residence test requires not only thatnon-UK benefit applicants are resident in the UK,which is valid, but that they be resident for anappreciable period of time. The habitual residencetest is extremely problematic as it lacks anystatutory definition and is therefore entirelysubjective. The difficulty with the application of thetest is that there is no definition for any of theterms used including what is meant by anappreciable period. The Commission is concerned

part of the training and learning process. The lackof specific training and support for some of the staffinterviewed has an inevitable impact on their abilityto deal with, or appropriately, refer difficult casesand many staff reported feeling powerless to helppeople in crisis. The impact of particular cases onstaff is also aggravated by the lack of structuredco-operation which exists not only between localagencies but also with the Home Office or UKBorders Agency. The following example shows thedegree to which some staff try to assist wherepossible:

“…She was subject to immigration, so we were tryingto get them [UKBA] to issue her with something andI convinced them to actually fax us through somethingthat enabled us to – when we couldn’t pay herIncome Support on that day – we were able to securea Social Fund loan. So she got something, asopposed to nothing. I felt her situation was quitedesperate, so I didn’t want to send her away withoutgiving it my all. That [same] lady happened to be ona Friday afternoon and that was why, because, itwasn’t like... it was going to be two days, if wecouldn’t have sorted something out and I wasconcerned, this sounds ridiculous, but as a humanbeing that I was going to send this lady away, whowas obviously, who was not a well woman, with nomoney.” (SSA interviewee)

As previously explained, entitlement to benefit isdependent on the passing of a two-tiered testwhich considers the applicant’s right to reside andhabitual residence in the UK. In the course of theinvestigation, 70 Jobseeker’s Allowanceapplications and 59 Income Support claims fromnon-UK nationals, from offices in Belfast,Dungannon and Cookstown, were reviewed. Tables5.2 and 5.3 demonstrate the outcome of the casesreviewed.


65

Type of claim Allowed Disallowed Total

JSA contribution 0 1 1

JSA income-based 33 31 64

Total 33 32 65

Type of claim Allowed Disallowed Total

Incapacity 16 13 29

Carer 1 0 1

Lone parent 12 9 21

Unknown 5 3 8

Total 34 25 59

Ireland, with some staff considering certain criteriato be essential, such as an applicant having her orhis own accommodation. In the context of thisinvestigation, the reliance of some staff on a personhaving a home is particularly troubling given thepotential negative repercussions faced by homelesspeople. Other staff gave the impression that it waseasier to demonstrate intention to settle if theapplicant had children because they could beregistered in a school. This, again, raises concerns.Information provided from a number of sources,including voluntary groups and accommodationproviders would strongly suggest that many of thenon-UK national population in Northern Ireland aresingle people without children. The Commissionwould therefore be concerned that such individualsmay face an unfair disadvantage in attempting tosatisfy the habitual residence test. An overallconcern for the investigators was the lack ofevidence provided in a number of case files as tohow the HRT was, or was not, satisfied. In somecase files, a box was ticked and no furtherinformation provided. In such cases, theinvestigators were not able to establish how, if atall, the test was applied. This information isessential in demonstrating fair application of thetest and, therefore, the Commission would stronglyurge that the SSA ensures that all case filescontain an accurate record on how the decision onthe habitual residence test was arrived at.

Social Fund

Although individuals likely to be entitled to benefitmay be eligible for interim benefit payments toavoid hardship, Crisis Loans via the Social Fund arethe SSA’s primary stopgap mechanism forindividuals at risk of destitution andhomelessness.81 However, the investigation foundthat, in reality, the fund offers little, or no,

about the vagueness and the potential forinconsistent application. Further, the Commissionshares the concerns expressed by the EuropeanCommittee of Social Rights in its examination of theUK government under the European Social Charter.Having considered the test against the provisions ofthe European Social Charter, the Committee stated:

The Committee concludes that the United Kingdom isnot in conformity with Article 13§1 of the Charter asapplicants for social assistance must satisfy theHabitual Residence Test which may entail a length ofresidence requirement.79

The Commission understands that the SSA is notresponsible for the test or the requirement to applyit; however, the investigators did have concerns interms of how the test was being applied. Bydesign, the test is extremely subjective and it is atthe discretion of staff to determine whatinformation they request initially and then, ifnecessary, for decision makers to request furtherinformation from applicants. The high level ofdiscretion would require that those SSA staffgathering and deciding on evidence should have ahigh level of understanding as to how the testoperates. In interviews with SSA staff from acrossthe three geographical areas, differentinterpretations of appreciable period wereexpressed, ranging from six weeks to severalmonths. A social security commissioner, whoserole is to decide on any appeals referred, has statedthat an appreciable period of time can be anythingup to three months but could also be a shorter, orlonger, period depending on the facts of the case.80

A similar lack of clarity exists with the notion ofsettled intention. In the course of interviews withSSA staff, a variety of examples were described todemonstrate how a decision would be made on abenefit applicant’s intention to settle in Northern


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79 European Social Charter, European Committee of Social Rights, Conclusions XVII-1 (United Kingdom), 2004.

80 Social Security Commissioners are judicial appointments and their role is to decide appeals which have been referred to them. When Commissioners make decisions,precedents are set and case law is created which will then be used by decision makers when making decisions. The case referred to is: Secretary of State for Work andPensions v Bhakta [2006] EWCA Civ 65.

81 SSA management advised the investigators that if a person was without funds and was “in all likelihood going to satisfy the conditions of entitlement to benefit and forsome reason could not be paid immediately then they would be considered for an interim payment which would be recovered from future benefit payments”.

considered. Based on the investigators’ interviewswith SSA staff and community/voluntary groups,one barrier in accessing Crisis Loans is the client’sability to repay the loan. Clients must be able todemonstrate how repayments will be made, eitherfrom benefits or through wages. This isproblematic as clients will apply for loans becausethey have no other source of funds. If someone istemporarily unemployed, she or he cannotdemonstrate how the loan can be recovered. Thesame problem arises in the situation of clients whohave been refused benefits and also lack anymeans of repayment. A further obstacle in terms ofCrisis Loan access concerns staff understanding ofthe Social Fund, an issue which has already beendiscussed in this chapter. The Commissionreiterates the need for improved staff training andguidance on entitlement to support.

Staff attitudes to non-UK national clients

Gaps in training and learning were apparent acrossthe SSA in a number of thematic areas. In the firstinstance, some staff simply did not understand howthe benefit system operated in relation to non-UKnationals. The investigators interviewed staff at alllevels of the SSA and found primarily positiveattitudes toward non-UK national clients andhomeless persons. In almost every interview, staffwere quick to emphasise that every customer wastreated equally and that there was no difference inpractice or approach where a non-UK nationalclient was involved:

“[Non-UK national] I mean, down there, our attitudehas to be everybody is the same. It is not, you know,they are from Europe so they have to be treateddifferently.” (SSA interviewee)

While the intention, and indeed the practice, maybe that everyone is treated the same in terms ofdignity and respect, the legislation means that theprocesses involved for non-UK nationals are quitedifferent. A number of factors impact to ensurethat there are disparities between the experiences

protection to individuals from abroad. It operatesmainly on a referral system, where clients arereferred or directed by SSA staff. They may alsoself-refer. No referral to the Social Fund wasrecorded in any of the 124 case files analysed bythe investigators, or identified in the clientinterviews observed between SSA staff and non-UKnationals. However, it should be noted that there isno statutory duty on SSA staff to refer to the SocialFund, rather an expectation that they would advisecustomers to present. The Commission remainsconcerned, however, that no reference to theSocial Fund, either in terms of advice or referral,was included in any of the 124 benefit applicationcases. Separately, the investigators requested andreceived access to Social Fund case files involvingnon-UK national clients, of which nine were madeavailable. The small number appears to berepresentative of the low number of non-UKnational referrals and applications across the threegeographical areas, as demonstrated by Table 5.4.Table 5.4 Social Fund case files

Of the Social Fund cases reviewed by theinvestigators, seven applications were successfuland two were refused. In each of the positivecases, the applicant was either in receipt of, or dueto, receive benefits. Bearing in mind that access toCrisis Loan assistance for certain non-UK nationalsmay be limited to the alleviation of theconsequences of disaster, other barriers should be


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District Office Number of casefiles reviewed

Number of SocialFund referrals

Shaftesbury 37 0

Belfast East 9 0

Shankhill 5 0

Belfast West 6 0

Dungannon 29 0

Cookstown 38 0

Total 124 0

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of nationals and non-UK nationals. The legislationrequires that specific forms must be completed andtests applied to non-UK national applicants. Thelogistics of coming from another country meansthat certain supporting information may be requiredin relation to medical history and dependentchildren. The language barrier may necessitate theuse of an interpreter or translation facilities, withthe consequence that appointments can takelonger to arrange and carry through. Ultimately, inaddition to the core qualifying criteria which anyapplicant must meet, the decision on a non-UKnational’s application is often dependent onimmigration status. The following statement by anSSA claims assessor demonstrates the fact thatthe legislation and policy necessitate a difference inapproach to the processing of claims made by non-UK nationals:

“We don’t make any distinctions between somebodyfrom abroad... It is, everybody is treated the sameand how they apply for Income Support.Generally…they complete a claim form, we makesure all the relevant information is there for us to beable to process the claim, or in the case of if you aretalking about a person from abroad, there is differentthings that we have to satisfy. Are they classed asa qualified worker, are they registered under WorkersRegistration Scheme, things like that. Are theya family member of a qualified person, differentthings. We make sure we have all the relevantdocumentation, work out, is the person entitled toIncome Support. They are either allowed ordisallowed.” (SSA interviewee)

The above issue deals with differences in theprocessing of UK and non-UK national benefitapplications. In addition, interviews withcommunity and voluntary groups illustrated adifference in treatment between national andnon-UK national staff contacting the SSA whichcaused concern as to the extent to whichnationality may effect how people are treated:

“Staff in the SSA office respond differently dependingon who calls them. If [local staff] calls they get abetter response than if [non-UK national member ofstaff] calls. If that is their attitude when it is[organisation] staff calling, what might their attitudesbe towards people who need help?” (Voluntaryorganisation interviewee)

Staff at one voluntary organisation highlighted, bythe following example, the impact of SSA staffattitudes on foreign nationals as potentially limitingapplications for crisis support:

“We were having clients, especially migrant workers,who basically had no money to live on and we weresending them down and they were technically eligiblefor crisis loans. They were getting to the front deskand the person at the desk was actually saying, ‘no,you won’t qualify, go away’ when actually it is not thereceptionist’s job to make that decision. Everybodyhas got a right to apply… I mean if it gets to the stagewhere you are applying for a crisis loan, you are introuble and something like that should be treble ring-fenced to make sure it is working properly, you know,because the next stage is starvation.” (Voluntaryorganisation interviewee)

On the whole, the investigators found the majorityof staff across the SSA to be helpful andcompassionate; however, some staff appeared tobe indifferent toward non-UK nationals andhomeless clients, regardless of theircircumstances. The investigators did not directlyobserve any poor conduct towards these clientgroups; however, one interviewee remarked:

“Foreigners can be more demanding and pushy.”

Based on further interviews, it appeared that therestrictive legislation was at times being used bysome of the SSA staff as a means of distancingthemselves from potentially emotive issues, as thefollowing examples demonstrate:

“[Children] if they don’t qualify, they don’t qualify,whether they have got children or not.” (SSAinterviewee)

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“[No fixed abode] if they come in there would benothing really we would do differently to someonewho was no fixed abode than we would withsomeone if they had a house. There is just maybe anextra form for them to fill in because there is no fixedabode stencil. Other than that, there is no realdifference.” (SSA interviewee)

Other staff were more flexible in their approach andwhile, like all other SSA staff interviewed, theyadhered to the legislation and policy, they adopteda more compassionate response to clients in need.As one SSA interviewee stated:

“You don’t close the door on anyone no matter wherethey are from. You try every avenue. You can’t letsomeone walk out with nowhere to sleep.”

Similarly, another staff member recognised thatwhen clients presented, many were doing so as alast resort:

“…there are people down there, and they don’tappreciate what you do for them. But, again, they’reat that desk and that is their last resort; they are notthere because they want to be, you know whatI mean.” (SSA interviewee)

Understanding of homelessness

Homelessness is not an issue for which the SSA hasoverall responsibility. However, the investigatorsfelt that from a human rights perspective, and inorder to ensure effective referrals, staff should havea clear understanding of what to do when someonepresents as homeless. Staff across the SSA had avaried understanding of homelessness whichfocused entirely on lack of accommodation. In mostcases, staff interviewed understood homelessnessto mean no access to any kind of accommodation.

“We have a few [homeless], but they tend to be nofixed abode in name only in that they do actually haveseveral addresses that they spend several nights at.The actual case of… ‘I am living in a cardboard box inthe street’, you know, really doesn’t present.” (SSAinterviewee)

In some instances, the perception of staffinterviewed in terms of levels of homelessnessvastly contradicted the reality. In an office whichcovers an area with one of the highest levels ofhomelessness, staff were unaware of the extent ofthe problem, with some claiming that there wereno homeless people in the area. For the most part,lack of accommodation and, consequently, nopostal address was seen as more of anadministrative issue than a human rights concern.Very few staff recognised the connection betweenaccess to benefits and housing need and, generally,the attitude was that homelessness is notsomething they deal with:

“But the homelessness isn’t relevant in our decision.Whether they are homeless or have a home, youknow, our decision will be the same.” (SSAinterviewee)

This last statement is not factually inaccuratebecause, as legislation, policy and practicecurrently operate, SSA staff do not have a directresponsibility toward homelessness other than tooffer advice. However, the statement is reflectiveof the professional distance maintained by anumber of the staff interviewed. Even wherechildren are involved, homelessness tends toremain an administrative issue for staff and there isno real sense of responsibility to refer to otheragencies:

“We very, very rarely would have anybody who has noaddress completely who has children. If we do, wereally strongly urge them to try and get an address. Itisn’t really within our remit to make them do that. Wecan’t sanction them in any way for not gettingan address, but obviously, if somebody has childrenand they don’t, I mean, they present to us and saythey are sleeping rough, we will say, ‘please go to theNIHE... try and get yourself an address’. But ourproblem is that our remit is to pay benefit, to sort outbenefit, it is not to take on the social aspect of it,although sometimes you do, but it isn’t really withinour remit to do that.” (SSA interviewee)

This service operates as a three-way telephonesystem, where the member of staff speaks, theinterpreter translates and the client listens. SSAmanagement reported a high level of satisfactionamong staff using this service. However, theCommission in its interviews with SSA staff foundthat there were some issues with telephoneinterpreting generally. While the service isintended to operate on a conferencing phone, someoffices only have the facility to use an ordinaryphone which means they have to pass the handsetback and forth. Many staff found this servicehelpful. However, a significant number reporteddifficulties. Interpreters could be based anywherein the world and some staff stated that there couldbe a bad line or that the interpreter’s accent wasdifficult to understand. Other staff commented onhow time consuming the service was due to theneed to repeat information several times. Staff involuntary and community organisations alsohighlighted problems with the service:

“The interpreters are not always great and thelanguage used may be the customer’s second or eventhird language. Like, they can’t get a Slovakianinterpreter so they use a Czech one, but theselanguages are different. It means that people don’tget the information they need from agencies.”(Voluntary sector interviewee)

In an interview with the investigators, a staffmember recalled a particularly distressingexperience with the telephone based interpretingservice. From the staff member’s perspective, theinterpreter was less than professional and, ratherthan interpret the conversation, was seen to haveaggravated an already emotionally chargedsituation:

Language barrier

Interviews with SSA staff, clients andvoluntary/community organisations consistentlyhighlighted the language barrier as an issue inrelation to accessing benefits. Despite the factthat the SSA has a facility in place for translatingdocuments, all correspondence is sent in theEnglish language and is generated from a computersystem. While only a few staff acknowledged thatclients will return with the letter for an explanationof its contents, many voluntary and communityorganisations stated that SSA clients werepresenting to them for language assistance. Staffat one voluntary organisation explained thepractical implications of using English-onlycorrespondence:

“Letters go out in English but these are standardletters that could be translated. People are missingdeadlines because of this.” (Voluntary organisationinterviewee)

For face-to-face applications, some claimantsbrought a friend to provide interpretation. In thecourse of the investigation interviews, it wasapparent that a small number of SSA staff thoughtit appropriate for an applicant’s child to interpret ininterviews and some had conducted interviews inthis way. There are obvious concerns about thispractice, given the fact that children are potentiallymissing school to attend interviews, the complexityand possible sensitivity of information involved and,therefore, the potential for, and consequences of,providing the wrong, or inadequate, information onbenefit entitlement.

SSA management informed the investigators thatits staff are advised to offer interpreting services toindividuals for whom English is not their firstlanguage and who may require assistance. TheSSA has contracted a company to providetelephone based interpretation.82


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82 Language Line is one of two telephone-interpreting services which have been used interchangeably by various government agencies. The other is called ‘Big Word’.

benefits from the SSA and neither were entitled.One person was particularly critical of thetreatment he had received, claiming that it wasunhelpful and that he felt that no advice was given.He cited the language barrier as being particularlyproblematic:

“It is possible that the SSA provided advice on whereto go but the meeting was being interpreted throughthe telephone and the line was very bad, lots of noiseand I couldn’t understand what was being said. I amshy and didn’t want to ask questions.” (Non-UKnational interviewee)

These experiences demonstrate the need for theproduction of accessible, comprehensiveinformation about the SSA and its remit for non-UKnationals. It should be noted, however, that sometranslated information is available including onlineleaflets and a migrant workers’ guide, and so theissue may well be about the accessibility anddissemination of such resources.

Lack of interagency co-operation

Despite the range of overlapping issues, theinvestigation uncovered almost a complete absenceof interagency co-operation in relation tohomelessness. This is not to say that SSA staffhave failed in meeting their legislativeresponsibility; however, given the vulnerability ofindividuals ineligible for benefit, the Commissionwould see a need for interagency co-operation.There was evidence of good statutory interagencypractice in one office under the investigation’sremit but, most notably, this was an area with verylow numbers of cases concerning non-UK nationals:

“[NIHE] Yes, there is a liaison meeting with theHousing Executive, six-monthly, every six weeks.Because Income Support and Jobseeker’s Allowanceprovide a passport to Housing Benefit, there would bea close liaison with them on an ongoing basis for allclaims and our computer systems are interlinked toprovide access too. So Housing Executive areautomatically notified that an Income Support

“It is hard sometimes, telling people like, you know,because there was [A8 national] girl came in. Godhelp her like. She was, she was only here sevenweeks, she fell pregnant, she found out she waspregnant and she was just devastated… And shedidn’t speak any English and she just came in crying tome and then we eventually got the interpreter on thephone, but the interpreter says to her, ‘right, you justneed to go home’… So, I was just trying to advise herwhat benefits that she was entitled to, the interpreterjust said to her ‘you need to go home and be with yourmummy’. I think she was a mother herself, you know.And she was being nice, she was being nice like, butit just didn’t come across like that to the wee girl, youknow.” (SSA interviewee)

While the use of face-to-face professionalinterpreters is good practice, it should be notedthat Northern Ireland has a small population andmany close networks exist within the variousnon-UK national communities, meaning that privacymay be an issue. During the investigation, itbecame clear that the interpreters used bystatutory agencies were, in some cases, wellknown to the local population. While no claims ofunprofessional conduct were made against anyinterpreters to the investigators’ knowledge, therewere concerns expressed in relation to domesticviolence cases where the interpreter knew thevictim and the perpetrator.

Client experiences

Fourteen homeless people were interviewed duringthe course of the Commission’s investigation. Theywere asked about their experiences of governmentagencies. Nine had no direct experience of theSSA, with many not aware of it. A further threewere not aware of the existence of the SSA and,although they had visited an SSA office to obtaintheir National Insurance number, they did not knowthat the office provided a dual function as a benefitagency. Only two of the fourteen peopleinterviewed had direct experience of seeking


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customer has become entitled which will tie up thenwith a corresponding Housing Benefit application, butthat is a routine for all Income Support andJobseeker’s Allowance customers.” (SSAinterviewee)

Staff across SSA offices quite often made the linkbetween homelessness and the Northern IrelandHousing Executive (NIHE), but had differingapproaches in terms of pursuing this link. Whilesome staff would be inclined to signpost, otherswere more reserved:

“No, we don’t refer as far as we are concerned; it isnot within our remit to do that, okay. We are benefitoffice; we are not an advice and guidance centre.”(SSA interviewee)

The lack of interagency referrals appears to begrounded in the fact that, overall, staff know verylittle about the roles and responsibilities of theother relevant statutory agencies in relation tohomelessness:

“The Housing Executive is a totally separatedepartment from ourselves, even though we do dealwith a small slice of their customers, you know. Idon’t think there is much information shared betweengovernment departments, I have to say.” (SSAinterviewee)

Although there is no statutory duty on SSA staff tomake referrals, the Commission is of the opinionthat a failure by staff to recognise and understandthe remit of other agencies can exasperate thehardship faced by clients.

Relationship with voluntary organisations

Each of the SSA offices involved in the investigationstated that they received referrals from voluntaryand community organisations. Certain offices hadextremely positive relationships with the voluntaryand community sector, and adopted a proactiveapproach to the needs of non-UK national clients.While positive engagement with the non-statutory

sector is to be welcomed, staff interviewedappeared, at times, to demonstrate inappropriatelevels of reliance on community and voluntarygroups. Staff across the three locations – thoughsome offices more than others – referred clients tovoluntary organisations for language assistance,filling in forms and information, as well as to othercharitable organisations for support and financialassistance. Interviews with staff in the voluntaryand community sector revealed that they wereunder pressure to respond to requests for adviceand assistance on issues which they felt were theremit of the statutory agencies. While staff involuntary and community organisations felt theyhad the necessary skills, knowledge and expertiseto respond to requests, some felt that they wereessentially fulfilling a function, at great time andfinancial expense, which the SSA is alreadymandated and funded to undertake.

“If the Social Security Agencies out there are going tobe sending people here to get forms filled in, why notpay for them, why not pay for the interpreters’ time?That would be a big bone of contention for us. Thefinancial impact is enormous. The cost of interpretingwould be the price of at least one advisor.” (Voluntaryorganisation interviewee)

During factual accuracy checks of this report, SSAmanagement stated that “the Agency offersinformation, advice and assistance with form fillingto customers”. However, where they requestalternative services, the SSA will signpost to therelevant voluntary organisations. The SSA providescontact details for all its offices to the AdviceService Alliance, an umbrella organisation of adviceand support organisations.

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Impact on SSA staff

The findings have, so far, focused on the impact ofSSA practices on clients and the voluntary sector.However, it should be noted that a lack of support,clear guidance and training on homelessness andnon-UK nationals can impact on the SSA staff whoencounter these cases. In the course of theinvestigation interviews, a number of staffcomplained about the pressure of having to meet‘unrealistic’ targets in the context of what they feltwas a lack of training and guidance. Some staffwent further and disclosed the personal impactwhich cases had on them:

“That case hit me hard because she was on her own,with twins, and we couldn’t pay her and, much asI felt dreadful about it and the case has stuck with meand I am waiting to hear how it goes [on appeal]. Itruthfully felt that I had applied the legislationcorrectly, but I felt dreadful about it… Part of ourproblem here is that we are not social workers andthere is only so much we can do and our hands arebasically tied and, you know, you can feel greatsympathy for someone but it doesn’t mean that youcan necessarily do anything about it, because you arestuck with the regulations, you know you are stuckwith the legislation.” (SSA interviewee)

The above case illustrates the extent to which,despite best intentions, staff can feel severelyrestricted or, as one staff member described,‘powerless’ by legislation. SSA managementinformed the investigators that the agency has awell-advertised Staff Welfare Service whichprovides a range of services to support staff asnecessary. The Commission commends theagency’s efforts in relation to the care of its staffand the provision of detailed guidance for decisionmakers. It is, however, of the opinion that thenegative impacts of difficult cases could beminimised through the production anddissemination of comprehensive guidance to frontline staff on the possible avenues of supportavailable to non-UK nationals.

Thematic findings

Legislation and policyWorker Registration Scheme

In order to facilitate accession of the A8 states tothe European Union (EU), the European Commissionpermitted an EU-wide derogation from Article 39 ofthe EC Treaty (free movement provisions) for aperiod of five years, from 1 May 2004. Thisallowed member states to restrict access to theirlabour markets for nationals from the A8 statesuntil 30 April 2009. However, member states werepermitted to extend transitional restrictions for afurther period of two years, in the event of “seriousdisturbances to the labour market, or a seriousthreat thereof”.84 On 8 April 2009, contrary to theadvice of the Northern Ireland Human RightsCommission, the Government announced itsdecision to extend the Worker Registration Scheme(WRS) for two years, until 30 April 2011.

The WRS was introduced on 1 May 2004, as theGovernment’s transitional measure to regulateaccess to the labour market by A8 nationals.85 Thescheme is also intended to restrict eligibility forbenefits and homelessness assistance. The needfor, and aims of, the scheme are set out in theGovernment’s most recent WRS monitoring report:

The UK Government put in place transitional measuresto regulate A8 nationals’ access to the labour market(via the Worker Registration Scheme) and to restrictaccess to benefits.86

The Accession (Immigration and Worker Registration)Regulations 2004 set out the requirements forworker registration. They provide that within onemonth of working for an employer, the worker mustapply for a registration certificate authorising themto work for that employer. To meet the WRSrequirements, the worker must remain registeredon the scheme for a continuous period of

IntroductionPeople who are excluded from accessing publicservices, such as homelessness assistance andwelfare benefits, may be all the more vulnerable tovarious forms of exploitation. The Commission’sinvestigation found examples of potential rightsviolations that were exacerbated by UK immigrationrules that exclude people from accessing support.This chapter considers the investigation findings ofexploitation in the context of the Home OfficeWorker Registration Scheme (WRS), the WorkerAuthorisation Scheme, and the immigration rulesthat apply to non-EU workers.

Human rights standardsThe human rights standards that apply to migrantsin the context of their working life in the UK are thesame as other human rights standards, asdiscussed in Chapter 2 of this report. Therefore,migrant workers are entitled to the protection ofthe rights contained within the European Conventionon Human Rights (ECHR), and other internationalhuman rights instruments. Those that have specificrelevance are the International Covenant onEconomic, Social and Cultural Rights (ICESCR), theInternational Covenant on Civil and Political Rights(ICCPR) and the International Convention on theElimination of All Forms of Racial Discrimination(ICERD). In addition, it is important to highlight theCouncil of Europe’s Convention on Action againstTrafficking in Human Beings, which the UK hasrecently ratified.83 This places an obligation onstate signatories to offer protection to victims oftrafficking who may be made all the morevulnerable by legislation which prohibits access tohomelessness support and welfare benefits.


6Exploitation and immigration rules“For ineligible cases – what can we do? There are real concerns around vulnerable peopleand, of course, exploitation.” (NIHE interviewee)

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83 The UK ratified this Convention on 17 December 2008; it came into force on1 April 2009.

84 The Accession Treaty 2003: the Accession (Immigration and WorkerRegistration) Regulations 2004.

85 The A8 accession states are the Czech Republic, Estonia, Hungary, Latvia,Lithuania, Poland, Slovakia, and Slovenia.

86 UK Border Agency (2008) Accession Monitoring Report: May 2004-September 2008, A8 Countries, a joint online report between the UK BorderAgency, Department for Work and Pensions, HM Revenue and Customs, andthe Department of Communities and Local Government, UKBA, London, p 1.

not a work permit. The types of permit-freeemployment are specified in the 2006 Regulations.

With regard to the legislative restrictions placed onA2 nationals, the Commission is of the view thatwhile the Government is generally acting withinprinciples laid down by the European Commission inlimiting A2 access to the labour market, itsmotivation for doing so is not solely based on theprotection of the labour market, but is alsoresponding to public concern about impacts oncommunities, housing and social services.Therefore, as with nationals from the A8 states, theGovernment’s transitional measures in relation toA2 nationals restrict access to benefits andhomelessness assistance. Unless A2 nationalsundertake a 12-month period of continuous,authorised employment, they are excluded fromhomelessness support and benefits, such as,Income Support, and Jobseeker’s Allowance.88

Non-EU nationals

Non-EU nationals, who come to live and work in theUK, will often do so subject to a work permit andvisa. This generally means that they are subject toimmigration control, with limited leave to remain inthe UK. In many, but not all cases, those subject toimmigration control will have ‘no recourse to publicfunds’. Section 115 of the Immigration and AsylumAct 1999 provides that they are excluded frombenefits, unless they fall within a specifiedexception. In relation to those subject toimmigration control, Section 115 states:

(1) No person is entitled to income-based jobseeker’sallowance under the […] Jobseekers Act 1995 orto –(a) Attendance Allowance,(b) Severe Disablement Allowance,(c) Invalid Care Allowance,(d) Disability Living Allowance,(e) Income Support,

12 months. That time period is not met if there ismore than a break of 30 days in registration. Inaddition, registration will lapse if the workerchanges employer as this requires re-registrationwith the Home Office.

The Allocation of Housing and Homelessness(Eligibility) Regulations (Northern Ireland) 2006provide that A8 nationals, who are out of work andhave not completed worker registration, areineligible for homelessness assistance. In addition,eligibility criteria for welfare benefits, namely,Income Support and Jobseeker’s Allowance, wereamended by the Social Security (Habitual ResidenceAmendment) Regulations (Northern Ireland) 2004.This states that in order to qualify for benefits, theindividual must have a right to reside. Nationalsfrom the A8 states will not have a right to resideand are, therefore, not entitled to benefits unlessthey satisfy the requirements of the WRS.

A2 accession states

Romania and Bulgaria joined the EU on 1 January2007. As with the A8 states, member states arepermitted to derogate from Article 39 of the ECTreaty in order to restrict access to national labourmarkets for a transitional period of up to five years,until 31 December 2011.87 On 1 January 2007, theGovernment introduced the Accession (Immigrationand Worker Authorisation) Regulations 2006 (the2006 Regulations). These provide that A2 nationalscannot work in the UK unless:

• Their employment falls within a specifiedcategory of employment; and

• Their employment is first authorised beforethey begin work.

In general, in order for employment to beauthorised, employers must first obtain a workpermit. However, for A2 nationals, certain types ofwork require only a ‘worker authorisation card’ and


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87 Member States can extend transitional arrangements for a further two years if there are “serious disturbances to the labour market or a serious threat thereof”.

88 For homeless support, see: Allocation of Housing and Homelessness (Eligibility) (Amendment) Regulations (Northern Ireland) 2007; for social security benefits, see: SocialSecurity (Bulgaria and Romania) (Amendment) Regulations (Northern Ireland) 2006.

The Worker Registration Scheme enables theGovernment to monitor the work A8 nationals do, andwhere in the country they do it – and so better planfor local services and ensure migration is working forthe British labour market and the country as awhole.91

However, in its submission of evidence, theCommission pointed out that the Government hasalready had five years since the introduction of theWRS to monitor the work that A8 nationals do. Inaddition, the Government’s own monitoring reportshave stated that, as it currently operates, the WRSis ineffective as a labour market monitoring tool.Given that the scheme was extended, theCommission restates what previous Home Officemonitoring reports have found, namely, the schemerepresents:

[…] a gross (cumulative) figure for the number ofworkers applying to the Worker Registration Scheme.The figures are not current: an individual who hasregistered to work and who leaves employment is notrequired to de-register, so some of those counted willhave left the employment for which they registeredand indeed some are likely to have left the UK.92

It is does not seem logical to extend the WRS formonitoring purposes when evidence suggests thatit is ineffective as a monitoring tool. However, theCommission notes that the Government has alsoextended the scheme in order to maintainrestrictions on benefit entitlement:

Maintaining the restrictions also means A8 nationalswill not have full access to benefits until they havebeen working and paying tax for at least12 consecutive months.93

Yet, the inflexible restrictions on access to benefitsand homelessness support means that A8 nationals

(f) Working Families’ Tax Credit,(g) Disabled Person’s Tax Credit,(h) A Social Fund payment,(i) Child Benefit,(j) Housing Benefit, or(k) Council Tax Benefit.

According to Section 119(1)(a) of the 1999 Act,homelessness assistance is also prohibited.

Non-EU nationals, who remain in the UK beyond theterm of their visas, are known as ‘overstayers’.Therefore, Section 9(6) of the 1999 Act providesthat “An ‘Overstayer’ means a person who, havingonly limited leave to enter or remain in the UnitedKingdom, remains beyond the time limited by theleave”. Individuals in this category are not entitledto homelessness assistance or welfare benefits.Finally, non-EU nationals may travel to, and enter,the UK without documents. This means that theyare ‘undocumented’. Despite the fact that thereasons for travelling to the UK in this mannermight be related to various forms of exploitation,including trafficking for forced labour,89 theseindividuals are also excluded from benefits andhomeless support.

FindingsExtension of the Worker Registration Scheme

During the period of this investigation, theCommission submitted evidence to the UK BorderAgency (UKBA) outlining, from a human rightsperspective, the implications of the WRS, with themain recommendation that the Governmentdiscontinue it.90 However, on 8 April 2009, theGovernment announced that it would extend thescheme for two years. The reason for theextension is that the scheme allows theGovernment to monitor the type, and location, ofemployment by A8 nationals:


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89 See, for example: Dowling S, Moreton K and Wright L (2007) Trafficking forthe Purposes of Labour Exploitation: A Literature Review, Home Office,London. Available: http://www.homeoffice.gov.uk/rds/pdfs07/rdsolr1007.pdf[8 July 2009].

90 Northern Ireland Human Rights Commission (2009) Submission of Evidenceto the UK Border Agency Regarding the Impact of the Worker RegistrationScheme, NIHRC, Belfast.

91 UKBA press release, 8 April 2009. Available:http://www.ukba.homeoffice.gov.uk/sitecontent/newsarticles/Government-keeps-work-restrict [8 July 2009].

92 UK Border Agency (2008), above, p 2.

93 UKBA press release, 8 April 2009, above.

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are vulnerable and at risk of exploitation.As outlined in the later chapters of this report,failure to meet the strict requirements of the WRScan have serious implications for vulnerableindividuals, including victims of domestic violenceor racial intimidation, or persons with ill-health or adisability. In extreme cases, this may have thepotential to interfere with the enjoyment of humanrights, including the right to be free from inhumanand degrading treatment94 and, perhaps, even theright to life. The WRS should be discontinuedwithout delay. In the meantime, a number ofmeasures are required to ensure better protectionof the rights of A8 workers while the schemeremains in force. These measures were outlined inthe Commission’s submission of evidence to theUKBA and they are discussed further below.

Workers without worker registration

As a result of the WRS, unregistered A8 nationalscan be denied access to benefits and homelessservices even though they have worked, payingtaxes and national insurance contributions, for morethan 12 months in the UK. As explained byinterviewees, often A8 nationals discover thescheme when they present to governmentagencies for help, by which time it is too late. Asone Social Security Agency (SSA) intervieweeexplained: “the first time maybe they hear about it iswhen they come in here”.

From SSA and Northern Ireland Housing Executive(NIHE) case files, the investigators were able togather information about the extent to whichindividuals were working but did not register theirwork on the WRS. From the files, it was found that20 applicants for social security benefits had beenworking but were not on the WRS. In twoinstances, it was recorded on the case file that theemployer had failed to inform the applicant aboutthe need to register. Nine applicants had been inemployment, paying tax and National Insurancecontributions, for more than 12 months. In

addition, from NIHE case files, where this type ofinformation was recorded, it was apparent in twocases that the applicants had worked for more than12 months but had not registered on the WRS.However, during interviews, a number of the NIHEstaff felt that this happened quite often: “Most ofthem are working some of them just haven’tregistered”. In this type of situation, the NIHE staffwill inform the individual about the WRS andexplain how to become entitled. However, many ofthe staff interviewed stated that this wasunsatisfactory because it did not entitle theapplicant to homelessness assistance:

“So I said, ‘have you registered?’ and then I showthem how to get the registration and stuff like that,you know. But again, what do you do after thatbecause they are not eligible for funds? Do I say,‘well, I am sorry you have to go to a self referralhostel’ but again, self-referral hostel, how do you payfor it? So it is the same situation, you know.” (NIHEinterviewee)

The investigators also received information fromvoluntary organisations which suggests that moreindividuals may have been working in NorthernIreland for months, often beyond 12 months, buthave never registered on the WRS, as illustrated bythe following case studies.

94 See, in particular: judgment in Limbuela as discussed in more detail in Chapter 2.

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Case studies - unregistered workers

• A8 national, male 47 – inemployment for three years but didnot register on WRS; voluntaryorganisation helped him find work andget on the WRS. They worked out apayment plan with a new landlordand helped him stay for a short periodin a hostel. No help from stateagencies – the Trust stated that itwould not assist.

• A8 worker – lost his employment.Eventually, a voluntary organisationaccepted him and referred him to aGP for treatment for depression.Although he worked for more thanone employer, he had worked formore than 12 months.

• A8 worker on WRS for nine months –lost his job and, as a result, he lostprivate rental due to non-payment ofrent. He slept rough for 13 monthsbefore being referred to a voluntaryorganisation.

The Commission was unable to investigateemployer practices as part of this investigation and,therefore, cannot make any findings in thisrespect.95 However, based on the informationcontained in the SSA case files, it appears thatrecruitment agencies and employers may notalways inform A8 nationals about the need toregister. In addition, at times, intervieweesexpressed frustration when dealing with employersand recruitment agencies:

“The customers are good enough to provide theirworkers registration certificates or their registrationcards and it tells you which places they have been

working for, but sometimes the employers won’t giveyou the information and it is holding up everything.”(SSA interviewee)

The Commission notes that while the 2004Regulations create a criminal offence for employerswho knowingly employ unregistered workers, at thetime of writing, the Public Prosecution Service hasyet to record a prosecution under this provision.Yet, there is clear evidence that many workers areunregistered and, as a result, penalised by thedenial of homelessness assistance and benefits.As noted by Baroness Hale in a recent case broughtbefore the House of Lords:

As monitoring is the aim […] it is difficult to see howthe future denial of benefits to a person who hasworked here for at least 12 months is even a suitablemeans of achieving it […]. Given the lack offamiliarity of many migrant workers with the UKsystem, it would obviously be more effective to targetthose sanctions against employers and employmentagencies than against the employees. The employersshould be fully aware of what needs to be done if anaccession worker is employed.96

As a result of this investigation, the Commission isof the view that the practice of recruitmentagencies and employers in relation to workerregistration may be an area requiring furtherresearch. In the meantime, until the WRS isdiscontinued, it is disproportionate andunnecessary to deny homelessness assistance andwelfare benefits where the individual candemonstrate that they have worked in the UK formore than 12 months.

Re-registration

The WRS requires individuals to notify the HomeOffice about all changes of employer during the12-month registration period. However, during theinvestigation, it was discovered that very fewindividuals were aware of this requirement.

95 The Commission’s powers of investigation do not extend to private organisations or to individuals.

96 Zalewska (AP) (Appellant) v Department for Social Development (Respondents) (Northern Ireland) [2008] UKHL 67, para 56.

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Government agency interviewees felt that this wasa considerable problem:

“Sometimes they don’t know that they should havetheir registration documentation updated.” (NIHEinterviewee)

“Most maybe don’t know that if a job finishes, youneed to register again and that can be sometimes, youshould be more aware of that. But I don’t know howyou would make them more aware of that.” (SSAinterviewee)

The Commission does not accept that there is anybasis for the requirement to re-register. Indeed, itwas heavily criticised by the dissenting Lords in therecent Zalewska case.97 This case involved a claimby a female victim of domestic violence, who wasdenied Income Support on the basis that she hadnot completed 12 months of worker registration.She had worked in Northern Ireland for more than12 months but had failed to notify the Home Officeabout a change of employer, which had taken placeduring the 12-month period. In her dissentingjudgment, Baroness Hale found that the requirementto re-register represents an unnecessary anddisproportionate part of the scheme:

It is even more difficult to see how denial of benefitscan be a necessary means of achieving the monitoringaim. The consequences for the worker’s right tofreedom of movement are severe. She was allowedto come and to work here for 12 months. But she hasbeen denied what she would otherwise be entitled to,having worked for so long.98

The case proceeded on the basis of EC Law. Themajority judgment found that the requirement tore-register did not amount to a disproportionaterestriction on free movement rights under Article39 of the EC Treaty. The Commission notes,however, that human rights arguments were notraised. Given the serious consequences forindividuals who fail to re-register, the Commission

is of the view that the requirement to re-registermay have an unnecessary and disproportionateimpact on an individual’s rights. In particular, forthose who are homeless and at risk of destitution,exclusion from homelessness assistance andwelfare benefits may engage the right to privateand family life, the right to be free from inhumanand degrading treatment, and, in extreme cases,potentially the right to life.99

Work related injury

It was discovered during the investigation that, in anumber of cases, individuals were injured as aresult of incidents that had occurred at work. Inthese instances, voluntary organisations reporteddismissals which had resulted in loss of registrationunder the WRS, as illustrated by the followingextract from an interview with a voluntaryorganisation:

“The client was deaf in one ear. His employer gavehim four weeks Statutory Sick Pay and then he wasdismissed. He lost his worker rights. He started workin January and so only had eight months’ registration.You can’t bank worker registration – once you lose ityou have to start again. He slept rough for one nightand then a man took him in. [We] argue that heshould be seen as an employee as the only reason heis now unemployed is due to employer’s negligence.”

In this particular case, it was alleged that theemployer’s failure to consider the safety of theemployee resulted in a work related accident andserious injury. In another instance, theinvestigators were informed about an individualwho broke his back due to work related injury. Theindividual and his wife were referred by a voluntarysector organisation to a street outreachorganisation and, for further advice, to CAB. In thiscase, again, the injury resulted in inability to workand incomplete registration under the WRS. Onreviewing government agency case files, theinvestigators discovered the background to the

97 Above.

98 Above, para 57.

99 See: Chapter 2 for human rights standards relating to destitution.

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situation and that he received some help from theTrusts, as illustrated by the following case study.

Case study: work related injury

Ben travelled to Northern Ireland from an A8State to find work. Meanwhile, his wife andchildren stayed in their home country. Afterseveral weeks at work, Ben fell and brokehis back. He was admitted to hospitalimmediately. As a result of the injury, Benremained in hospital for over two months.This meant that he had more than a 30-daybreak in his worker registration and was notentitled to benefits or homelessnessassistance on discharge. Staff at thehospital delayed Ben’s discharge while theytried to find him some form ofaccommodation. They referred to the Trustwhich then contacted the NIHE. Given thelapse in Ben’s worker registration, the NIHEconfirmed that Ben was not eligible forhomelessness assistance. The Trustarranged respite accommodation for Benand agreed to cover the cost pendingrecovery. However, after two weeks withoutany hope that he would receive benefits,Ben left his accommodation voluntarily tofind work. Ben did not leave a forwardingaddress and has not had any contact withthe Trust. Ben became reliant on charitableorganisations.

It is notable that according to the rules governingthe WRS, a period of sick leave, as opposed todismissal, would not have resulted in a break inregistration. The investigators did not receive anyfurther information about Ben’s case, but if Benwas dismissed from his employment, he wouldhave been entitled to pursue a claim for unfairdismissal. Yet, Ben has been seriously injured; hehas no income, and no worker registration. Thismakes him extremely vulnerable and, as a

consequence, less able to pursue such a claim. Toensure that workers can assert their rights in thistype of situation, worker registration should notlapse if the individual is claiming unfair dismissal onloss of employment. In any case, where anindividual is out of work due to injury, WRS statusshould not impact on her or his entitlements toaccess homelessness assistance and welfarebenefits.100

Worker registration fee

When the WRS was introduced in 2004, Regulation8(4)(a) of the Accession State Worker RegistrationScheme required an application from anunregistered worker to be accompanied by a £50fee. This fee was increased to £70, from 1 October2005, by the Accession (Immigration and WorkerRegistration) (Amendment) Regulations 2005. As of2 April 2007, the fee was increased again, to £90.In the explanatory paper accompanying the lastincrease in fees, (No. 928 (2007)), the Governmentstated that, even at the increased rate, the fee wasbelow cost recovery levels and therefore justifiable.It went on to say that it did not want the fee todeter workers from applying to register their work.

However, the Commission is concerned that theextent of the fee may be deterring people fromregistering. For example, Table 6.1, overleaf,demonstrates how the £90 fee compares to themonthly minimum wage of individuals from A8states.

100 It should be noted that under current legislation and practice there is no automatic entitlement to benefits for an EEA national in the event of unemployment due to workrelated injury. The individual would still have to meet the qualifying conditions for benefit.

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Table 6.1 Proportionality of application fee

• Figures based on Federation of European Employers’ review ofminimum wage rates

• National minimum wage for full-time adult employees (age23+) per 30-day month

• Exchange rates based on http://www.xe.com as at 11 February2009 at 16:35.

The table demonstrates that the current £90 feeequates to an average of 35.6 per cent (9.77 days)of an A8 worker’s minimum monthly salary. Aspreviously outlined, A8 migrant workers may beunaware of the WRS prior to arriving in the UK andwill not have budgeted for it. There are those whomay not have been in full-time employment in theirhome state and are leaving a situation of poverty insearch of a better life abroad. As one NIHEinterviewee stated, many individuals will have usedtheir savings in order to travel here:

“They saved money up when they were in Poland.They think that they are coming to Northern Ireland fora more rewarding sort of life and, when they get here,they find that there are actual conditions to be able tobe employed and they don’t realise until they get herethat there is actually a criteria to be employed. Sonow they are stranded here but they have probablyused an awful lot of savings and family money to get

to here and then realise, when they get here, thatthere is actually legislation behind being employed.”(NIHE interviewee)

The investigation involved a number of voluntaryand community organisations, as well as A8workers. Those aware of the scheme were askedabout the cost implications of the fee and manyexpressed that it was burdensome and was adeterrent to registration. Government agency staffwere also concerned:

“It seems very unfair to these people […] I think it isthe fact that they even have to pay £80 […]especially when they’re out of work and they’re tryingto get employment.” (SSA interviewee)

A2 nationals and worker authorisation

The investigators encountered fewer homelessnesscases involving A2 nationals. However, voluntaryorganisation interviewees stated that considerablebarriers exist for A2 nationals and, in particular, forRomanian nationals when attempting to accesssupport:

“The Romanian clients are not entitled to any supportfrom the government at all […] no support at all.They have to go for a specific procedure to get…even to get the right to work. So it is really hard for alot of the families that are coming to me, that areRomanians, to get things, you know, like primarythings, like food and accommodation.” (Voluntaryorganisation interviewee)

Indeed, although only seven of the NIHE case filesconsidered for this investigation involved A2nationals, all of the applicants were of ‘no fixedabode’ and ineligible for homelessness assistance.In three cases, the applicants presented withchildren and were still refused support.101 Thefollowing case study is an overview of one of thesecases.

Country NationalMin Wage

UK StgEquiv

% monthlywage

Dayswork

UK 993.20 GBP 993.20 9.06 2.70

Slovenia 566.54 euro 599.778 17.65 5.29

Slovakia 295.49 euro 265.889 33.84 10.15

Poland 1,276 zlotys 253.028 35.56 10.66

CzechRepublic

8,000koruny 252.688 35.61 10.68

Estonia 4,350kroons 250.067 35.99 10.79

Latvia 180 lats 224.26 40.13 12.03

Hungary 71,500forints 217.469 41.38 12.41

Lithuania 800 litai 292.88 44.36 13.30

101 In two of these cases, the applicant had three dependent children and, in one case, five dependent children.

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Case study: homeless without workerauthorisationThe family, A2 nationals, travelled toNorthern Ireland to find work, unaware ofthe transitional restrictions and therequirement to have a work permit andworker authorisation. With three children,they presented to a voluntary organisationfor help. The voluntary organisation did notprovide accommodation and so referred thefamily to the Trust. On receipt of thereferral, the Trust referred to the NIHE whichfound that the applicant and his family wereineligible for homelessness assistance.However, due to the children, the NIHEoffered temporary accommodation. Thefamily left the NIHE office before acceptingthis offer. The NIHE referred the case backto the Trust. The file was closed and theoutcome is unknown.

One voluntary organisation reported that A2nationals make up quite a high volume of its clients.However, many of them do not present to stateagencies for support:

Q: “How many Romanian families would present toyou?”

A: “Like only lately, at least 20, it is a big, very, verybig community.” (Voluntary organisation interviewee)

Often, A2 nationals arrive in Northern Ireland inorder to seek a work permit and/or workerauthorisation, but in the meantime they areexcluded from accessing support. Duringinterviews with the NIHE staff, it was sometimesfelt that for homeless A2 nationals, it is a case of‘clear-cut’ ineligibility:

“Non-UK, like somebody from Romania, who hasn’tgot a visa, he has come over here, I am sorry; he hasgot no paperwork at all. So that is a clear-cut case,you know, he hasn’t got either the yellow or purple

card’ you know… you just say, ‘sorry’.” (NIHEinterviewee)

Perhaps more so than with the WRS, the workpermit and worker authorisation requirementsrender A2 nationals vulnerable to exploitation.Anecdotally, the investigators were informed thatA2 nationals are regularly employed without aformal contract or work permit. Without thepermit, they are often prevented from seekingHome Office authorisation which, in turn, preventsthem from regularising their immigration status.

Particularly for A2 nationals, the investigationfound, albeit on limited information, that voluntaryand charitable organisations appear to be the onlysource of help, even in cases where the individualis destitute and at serious risk. The followinginterview extract demonstrates the level of supportprovided by one organisation in relation to an A2national who was ineligible for homelessnessassistance:

“He wanted to work; he wasn’t wanting to claim anybenefits. You know, he was quite adamant notwanting to claim the benefits, but we were trying toexplain to him, ‘if you don’t have the housing benefit,you know, you are not going to be able to stay’. Soanyway, he stayed here for a month and it wasa month on a charitable act, so there was no incomepaid. […] Isn’t it awful when you are watching andyou see somebody and you know that you can’t helpthem anymore, and you know they are given nowhereto live.” (Voluntary organisation interviewee)

Despite the serious concerns reported through anumber of interviews with voluntary organisations,there was a lack of available information regardingaccess to homelessness assistance by A2nationals.

Anecdotally, and based on discussions with anumber of voluntary groups, it is likely that more ofthese types of cases exist in Northern Ireland.Indeed, many cases may be unknown togovernment agencies. Despite this, in an interviewwith the Trust’s staff, one interviewee felt that shehad come across this situation in a number ofcases. In her experience, the ‘no recourse to publicfunds rule’ impacts on vulnerable people who,perhaps due to illness, are unable to maintain theirwork:

“It has impacted on those who had employmentbefore they went in [to hospital] because I am eventhinking of the [individual] who was from [a non-EUstate]. She ended up having to go back homebecause she couldn’t maintain her… her housing wasattached to [her employment] and therefore shecouldn’t go back there because that was part of… itwas paid for through the wages of [her job]. But shewasn’t fit to go back into work…. She lost her home;do you know what I mean?” (Trust interviewee)

The above information shows how people enteringthe UK to work may be rendered vulnerable due tothe absolute nature of the ‘no recourse to publicfunds’ rule.

Labour exploitation

Following the fieldwork period for the investigation,the UK ratified the Council of Europe Convention onAction against Trafficking in Human Beings.103 As of1 April 2009, this means that victims who reporttrafficking to, or who are rescued by, the“Competent Authority”104 will be entitled toassistance which may include a minimum 45-day“recovery and reflection”period to consider whetherthey want to remain in the UK or return home.105

During this period, the victim will be entitled to

Non-EU nationals and no recourse to publicfunds

Most of the cases encountered by theinvestigators, that involved non-EU nationals,related to asylum claims or to individuals who hadbeen granted refugee status. Given the specificrules relating to asylum, the investigation findingsrelating to asylum seekers and refugees arediscussed in Chapter 7. The investigators did,however, come across a small number ofhomelessness cases involving non-EU nationalswho were in Northern Ireland and who were eithersubject to immigration control – and therefore arequirement to have ‘no recourse to public funds’ –or undocumented. In these cases, regardless oftheir circumstances, the individuals were barredfrom accessing homelessness support and welfarebenefits.

On review of the NIHE case files, it becameapparent that six homelessness claims were madeby applicants who were subject to immigrationcontrol with ‘no recourse to public funds’. In four ofthese cases, the investigators noted that theapplicants were particularly vulnerable. Forexample, in one case, the applicant, a non-EEAnational, had entered Northern Ireland on a workvisa. He had presented to the NIHE following racistattacks on his home but was refused assistance asa person with ‘no recourse to public funds’.102 Inanother case, a female applicant with diabetes hadalso entered Northern Ireland on a work visa. Adecline in her sight and mobility meant that shewas no longer able to work. Followingnon-payment of rent, she had received a notice toquit from her landlord. Again, due to the ‘norecourse to public funds’ rule, she was refusedhomelessness assistance.


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102 See: Chapter 10 for more detail on this case.

103 Ratification by the UK Government took place on 17 December 2008.

104 “Competent Authority” refers to public authorities which may have contact with trafficking victims, such as the police, the labour inspectorate, customs, the immigrationauthorities, and embassies or consulates (Explanatory Report to the Convention, para 127). At present in the UK, there is a central multi-agency Competent Authoritybased in the UK Human Trafficking Centre.

105 Article 10 of the Convention provides for the identification of victims; Article 12 sets out assistance for identified victims; Article 13 sets out a minimum 30-day ‘recoveryand reflection’ period for those otherwise likely to be removed from the Contracting State. The Government has introduced a “recovery and reflection” period of 45 days.

Article 4 – Definitions

For the purposes of this Convention:

a “Trafficking in human beings” shall mean therecruitment, transportation, transfer,harbouring or receipt of persons, by meansof the threat or use of force or other forms ofcoercion, of abduction, of fraud, ofdeception, of the abuse of power or of aposition of vulnerability or of the giving orreceiving of payments or benefits to achievethe consent of a person having control overanother person, for the purpose ofexploitation. Exploitation shall include, at aminimum, the exploitation of the prostitutionof others or other forms of sexualexploitation, forced labour or services,slavery or practices similar to slavery,servitude or the removal of organs;

b The consent of a victim of “trafficking inhuman beings” to the intended exploitationset forth in subparagraph (a) of this articleshall be irrelevant where any of the meansset forth in subparagraph (a) have beenused…

The case study, overleaf, is an account of events asreported to the investigators by the interviewee.

state funded hostel accommodation and support.In addition, persons subject to immigration controlmay apply to the Home Office for an initial12 months’ leave to remain. In relation to the“recovery and reflection” period under Article 13 ofthe Convention, the Commission notes thatParagraph 177 states:

[…] The length of this recovery and reflection periodhas to be of at least 30 days and has to be compatiblewith the purpose of Article 13. At present countrieswhich have a period of that kind in their domestic lawhave lengths of one month, 45 days, two months,three months or unspecified. A three-month periodwas referred to in the declaration of the 3rd RegionalMinisterial Forum of the Stability Pact for South-Eastern Europe (Tirana, 11 December 2002). TheGroup of Experts on trafficking in human beings whichthe European Commission set up by decision of 25March 2003 recommended, in an opinion of 16 April2004, a period of at least 3 months.

The Government ought to view its commitmentsunder the Convention as minimum obligations andensure support for victims that can extend beyondthe current practice of a minimum 45-day reflectionperiod, in line with international best practice.

It should be noted that those who do not reporttheir experiences to the Competent Authority willnot receive assistance under the Convention. Inthis type of case, access to homelessnessassistance and welfare benefits will depend onimmigration status.

During the investigation, one interviewee revealedhow she had been prevented from accessingassistance because she did not meet WorkerRegistration Scheme requirements. According tothe interviewee’s account, it would appear that hercircumstances are similar to those described in theCouncil of Europe Convention, which defines‘trafficking’ as follows:


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Case study: exploitation and the WRS

Lisa came to Northern Ireland from one of theA8 accession states because her friend, Ed,was working here and paid for her to join him.Lisa was offered a room in Ed’s house. Hiswife and seven other people lived there. Theothers were also from Lisa’s home country.

Lisa stated that she was working 16 hourseach day but was not receiving any money.When Lisa raised this, Ed’s brother-in-lawsaid that she would be evicted from thehouse if she asked for any money. Lisa thenasked her manager if she was owed wages.Her manager said that he had beenforwarding a cheque to her by post eachweek. Lisa learned that, because she didn’thave a bank account, Ed was receiving herwages and paying them into his wife’spersonal account. After this, “Then anotherwages came but they came directly to the bankaccount and I didn’t see that money”. She hadbeen working 16 hours each day for three-and-a-half months. Lisa also stated that,because she did not have any money, shewalked for two hours each day in order to getto work. Sometimes, she was so tired afterwork that she slept on the shop floor.

Lisa finally raised the issue with Ed and wasevicted from the house. At the same time,Ed contacted Lisa’s employer and, the nextday, she was dismissed from heremployment. The investigators asked Lisahow she survived on leaving the house:

“After expulsion from the house, five nights Islept outside. I didn’t know about this [daycentre] but I was sitting in the city centreone day and a man asked me what waswrong and I told him and he told me aboutthe centre.”

Q: “What other help did you receive?”

A: “There wasn’t really any help from mycolleagues or friends because nobodywould take responsibility for me to […]give me accommodation. Three times Islept in [the shop] because the managerlet me, even though it was againstpolicy.”

Lisa said that she heard about the WRS butwas unable to register, “I couldn’t get theHome Office registration because I didn’t get aNational Insurance number and I didn’t get thatbecause of my landlord letter”. Lisa never gota ‘landlord letter’ from Ed. As a result, shedid not get a National Insurance number andwas never able to register on the WRS.

Lisa states that she is now in contact with arecruitment agency and hopes to find work.With the help of staff at the day centre, Lisareceived some money from her formermanager but she did not get all that she wasowed. Lisa indicates that she would like toreport Ed to the police but he has threatenedher, saying that if she does, he will harm herfamily.

After sleeping rough on the streets, Lisa nowstays with a friend. However, this is onlytemporary and she must find a job. Lisa hasapplied for many positions but feels that shehas limited use of English and this is lettingher down. The investigators asked Lisa aboutthe impact all of this has had on her. Crying,she replies:

“It is a very bad deep feeling. You need tohave the experience to be able to describeit. If I had known that it would end up likethis, I wouldn’t have come here. There aresome people that came here and they arebringing other people here and makingmoney on them – that’s the way it works.”

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During the interview, Lisa alluded to at least fiveother individuals who may be in a similar situation.It is not known whether they contacted the police.However, the fieldwork for the investigation tookplace prior to the introduction of the Council ofEurope’s Convention on Action Against Trafficking inHuman Beings. This means that even if they hadreported their experiences to the police, they wouldnot have been entitled to assistance under theConvention.

Even with the Convention, Lisa’s account highlightsthe difficulties that remain for those who do leavean exploitative relationship but for whatever reasondo not report their experiences to the police. Asrecognised by the government agencyinterviewees, despite the potential risk to basichuman rights, there is no flexibility within the WRSrules to assist vulnerable individuals. At best,interviewees felt that they could direct theseapplicants to day centres. This might help withfood and clothing but does not offeraccommodation:

“But we will point them in the direction [...] theWelcome Centre for food and things like that, youknow, just somewhere to sit for a few hours during theday if it is cold.” (NIHE interviewee)

The account provided by Lisa illustrates the impactof exploitation, and how this may be exacerbatedby the WRS rules which prevent access tohomelessness assistance and welfare benefits forthose whose work has not been registered.

Non-EU nationals and labour exploitation

During the investigation, the Commission receivedinformation about three non-EU nationals whoseexperiences would suggest that trafficking mayhave taken place. Two of these individuals agreedto take part in an interview for the investigation. Ineach case, a large sum of money was paid in returnfor travel to, and work in, Northern Ireland. Oneinterviewee explained that after two years she isstill paying the money back.

The following case study details one of these casesthrough an account of events as described by aninterviewee.

Case study: exploitation andimmigration controlDamien stated that he travelled to NorthernIreland eight years ago when he was 16years old. He was brought here by a gangmaster and promised work. When he firstarrived, Damien was provided work andaccommodation which was tied to hisemployment. In addition, money wasdeducted from his wages to repay the gangmaster for bringing him to Northern Ireland:

“The gang master, I owed him some moneyso they arranged a job for me so when Ifinish the work, I have to pay back”.

In the last year, Damien stated that theHome Office contacted him. The HomeOffice detained him for two months, but nowhe lives at a named address in thecommunity. Damien is liable for removal andmust report to the police station each week.He is not permitted to work. He currentlylives in a flat above the place where he usedto work and is relying entirely on friends forfood and money. Damien fears that he willsoon be on the street because the ownersare selling the accommodation.When the investigators asked Damien howhe would survive, he replied:

“Home Office does not allow me to work,so I am scared, I don’t want to work andalso the place sell it to another person, so Iwill be homeless very soon.”Q: “And this time, where will you go for

help?”A: “Well, some friends just found them to

help, to ask for help from friends.”Q: “Do you know or do you feel there are

any other options?”

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A: “Well, I am lost, totally lost. Also thegovernment does not allow me to workwith my conditions, it is lost and I havean English barrier so, don’t know whatto do.”

Damien is adamant that he does not want torely on government support. He wouldprefer that the Government would allow himto work:

Q: “Is there anything that would help tomake things better?”

A: “Well, if Home Office allow me to workand then I don’t mind to pay tax.”

Q: “Is there anything else that you feelwould help you or people like you whoare in a similar situation?”

A: “I will like to support myself and I don’twant to live on the government. I havemy all four limbs I will learn to workinstead of sitting on the government.”

At the moment, Damien waits each week toreport to the police station. He has nomoney and is constantly frightened in casehe is detained again:

Q: “Has this situation had any impact onyour health?”

A: “I am panicked and scared. EveryWednesday, as long as I can go to thepolice station, I am really scared in casethey catch me again and I go to thedetention again, the detention house.”

The investigators asked Damien if he feltthere were any other options. He wasaware of the International Organisation ofMigration who would help him to returnhome. However, he was unhappy with thisoption:

“No, I don’t want to return back, I have norelatives any more there […] I stay herelong enough, I feel this is my home”.

The account provided by Damien reveals the harshnature of immigration rules. According to Damien,although he has worked in Northern Ireland foreight years paying off his debts to a gang master,he is now liable for removal and subject to thecondition that he does not work or access publicfunds.

It is notable that in this situation undocumentedmigrants may apply for the “assisted voluntaryreturn for illegal migrants” (AVRIM), through theHome Office, facilitated by the InternationalOrganization for Migration (IOM). The Home Officewebsite106 presents this programme of assistedvoluntary return for undocumented migrants asfollows:

This programme (sometimes known as AVRIM) is notfor people who have applied for asylum. It is forpeople who are in the United Kingdom illegally,including those who have overstayed the time allowedby their visa or who have been smuggled into thecountry.

If you are accepted onto this programme, IOM cangive you:

• tickets to your home country;

• help with arranging your travel; and

• help with obtaining travel documents.

However, as demonstrated in Damien’s case, returnto the country of origin is not always a practicableoption.

106 Available: http://www.ukba.homeoffice.gov.uk/asylum/outcomes/unsuccessfulapplications/voluntaryreturn/ [8 July 2009].

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Refugees and asylum seekers“They need help unless people want them sleeping on the streets and possibly dying or beinginjured. It is not a representation of a civilised society.” (Voluntary organisation interviewee)

7


ContextThe United Nations describes an asylum seeker assomeone “who has applied for protection as arefugee and is awaiting the determination of his orher status”.107 The issue of asylum seekers in theUK is one which is shrouded in myth andprejudice.108 Many of the misconceptions aboutpeople seeking refuge are perpetrated through themedia and founded on misinformation andmisunderstanding. Attempts have been made todebunk a number of these myths, including the ideathat Britain is ‘swamped’ with asylum seekers,when the reality is that they account for less thantwo per cent of the population (MORI, 2002).Asylum seekers are regularly referred to in themedia and public domain as ‘illegals’ and ‘foreigncriminals’ when, in reality, everyone is entitledunder international law to seek asylum in the UKand remain in the country until a decision has beenmade.109 The Commission’s investigation found,from a review of case files and anecdotal evidencefrom voluntary organisations, that asylum seekerscome to Northern Ireland primarily from non-EEAstates from where they are fleeing serious humanrights abuses, oppressive regimes and ethnicconflict. This chapter will examine the entitlementto support afforded to those claiming asylum in theUK, and the potential destitution and homelessnesswhich arises from a lack of access to public funds.The chapter also looks specifically at the situationfacing unaccompanied minors entering the UK.

Human rights standardsThe rights of refugees and asylum seekers areenshrined in a number of international instruments.The Universal Declaration on Human Rights (UDHR)establishes the basis of asylum-seeking underArticle 14(1):

Everyone has the right to seek and to enjoy in othercountries asylum from persecution.

Asylum seekers and refugees are protected fromdiscrimination in several international treaties, inparticular, Article 7 of the United Nations’Convention Relating to the Status of Refugees 1951(the Refugee Convention) which provides for theirfair treatment whilst in the country of refuge. Theprinciple of non-discrimination, with regard torefugee and asylum seekers, was reiterated at theDurban Review Conference in April 2009, whichstated in its final report:

80. […] that the national, regional and internationalresponse and policies, including financial assistance,towards refugee and internal displacement situationsin different parts of the world, should not be guided byany form of discrimination prohibited by internationallaw and urges the international community to takeconcrete action to meet the protection and assistanceneeds of refugees, and to contribute generously toprojects and programmes aimed at alleviating theirplight and finding durable solutions.

Despite the fact that asylum seekers are perceivedto have broken the law by entering the countrycovertly, Article 31 of the Refugee Conventionprohibits the punishment of asylum seekers for theuse of false documentation, as it is widelyaccepted that it may be impossible to escapepersecution without using illegal means. This isbecause, in order to obtain legitimate traveldocuments, a person will have to deal with theagencies of the state which may be theperpetrators of persecution or oppression, thereforeforcing some asylum seekers to rely on illegitimatepapers to flee.

107 As defined by Article 1 of the 1951 United Nations’ Convention Relating to the Status of Refugees.

108 See, for example: ‘Big jump in illegals on lorries’ The Sun, 9 February 2009; ‘Number of illegal immigrants in Britain may be nearing 1million’, Daily Mail, 10 March 2009;‘Each illegal immigrant costs us £1m, says study as Government faces calls for amnesty’ Daily Mail, 4 May 2009; ‘Illegal immigrants caught “hiding in classic cars”’, DailyTelegraph, 20 April 2009; ‘Bum maps free army of illegals’, Daily Star, 11 January 2009; and ‘Rally urges illegal migrant amnesty’, News Letter, 4 May 2009.

109 Above.

In addition to all of these protections, which areafforded to people of all ages, children areadditionally protected under the UN Convention onthe Rights of the Child (CRC). This chapter willexamine the situation of children as asylum-seekingfamily members, as well as children who areunaccompanied. The CRC explicitly states, underArticle 2, that all children should be treated withoutdiscrimination. Article 3 contains the fundamentalprinciple that in all actions concerning children, thebest interests of the child shall be a primaryconsideration. The Convention provides for theprotection of all children from all forms of abuseand exploitation under Articles 19, 32 and 34-36,which are of particular importance when dealingwith trafficked or otherwise vulnerable children.111

The CRC also makes specific provision, underArticle 22, for asylum-seeking or refugee childrenwhether they are unaccompanied or part of afamily:

States Parties shall take appropriate measures toensure that a child who is seeking refugee status orwho is considered a refugee in accordance withapplicable international or domestic law andprocedures shall, whether unaccompanied oraccompanied by his or her parents or by any otherperson, receive appropriate protection andhumanitarian assistance in the enjoyment ofapplicable rights set forth in the present Conventionand in other international human rights orhumanitarian instruments to which the said States areParties.

As this section has demonstrated, internationalhuman rights law provides a range of protections tothe general population in respect of destitution, aswell as giving specific protections to asylumseekers and refugees whether adults or children.The remainder of the chapter will examine currentpractices in Northern Ireland in relation to homelessasylum seekers, in an effort to establish whethersuch practices are human rights compliant.

Of particular relevance to this report, is the right ofall individuals to an adequate standard of living,which is explicitly outlined under Article 25 of theUDHR, and Article 11(1) of the InternationalCovenant on Economic, Social and Cultural Rights(ICESCR) which states:110

Everyone has the right to a standard of living adequatefor the health and well-being of himself and of hisfamily, including food, clothing, housing and medicalcare and necessary social services, and the right tosecurity in the event of unemployment, sickness,disability, widowhood, old age or other lack oflivelihood in circumstances beyond his control.

The right of refugees to housing is furtherestablished under Article 21 of the RefugeeConvention. The most common means of attainingan adequate standard of living is throughemployment, and the right to work can be found inboth the ICESCR under Article 6 and the UDHRunder Article 23:

Everyone has the right to work, to free choice ofemployment, to just and favourable conditions of workand to protection against unemployment.

Restriction on employment is a common theme inthis chapter and it is one of the contributing factorsto destitution and homelessness. Internationalprovisions make specific reference to the right ofevery person to social security assistance, inaddition to the explicit reference to unemploymentprotection. This right is enshrined under Article 22of the UDHR and Article 19 of the ICESCR, whileparticular reference, in relation to refugees, isprovided in Article 23 of the Refugee Convention.Inevitably, destitution impacts on all aspects of aperson’s life including their health and wellbeing.Chapter 9 of this report provides detail on therelationship between destitution and ill-health. Fornow, it should be noted that international humanrights law provides for the health of all peopleunder Article 12 of the ICESCR.


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110 See: Chapter 2 for a discussion of the relevant rights within the ICESCR and application to non-citizens.

111 Article 19 refers to the protection of children from abuse while in the care of parents; Articles 32 (economic exploitation), 34 (sexual exploitation), 35 (trafficking) and 36(other forms of exploitation) place an obligation on the state to protect children from all forms of abuse and exploitation perpetrated either by the state or a third party.

illegal entry, regular reporting for all asylumseekers, and it introduced an Asylum RegistrationCard (ARC). It also included a provision which hadthe potential to trigger destitution.

Asylum seekers were refused NASS support if theydid not claim asylum “as soon as reasonablypracticable” under Section 55 of the 2002 Act. Therationale for the legislation was to allow theGovernment to restrict people, who had been in thecountry a long time, from applying for asylum at alate stage. Implementation of Section 55 led to anincreasingly shorter window in which people couldmake an asylum application, to the extent that, atone stage, ‘in country’ applications had to be madewithin 72 hours of arriving and could only be madein person at the Asylum Screening Unit in Croydonor Liverpool. This policy caused large numbers ofasylum seekers to be denied support and leftdestitute, as many were unable to submitapplications within such narrow timeframeswithout the opportunity to find appropriate supportand advice. This practice of refusing subsistence tolate asylum applicants was found, by the House ofLords, to be in some cases incompatible withArticle 3 of the European Convention on HumanRights (ECHR).113

Strict asylum measures followed with the Asylumand Immigration (treatment of claimants, etc) Act2004. The most relevant sections of the Act, forthe purposes of this report, are those which relateto financial support and housing. In this regard,Section 9 of the Act allows the Home Secretary tostop the support of refused asylum seekers withfamilies if they have failed to leave the UKvoluntarily and without reasonable excuse.Successful asylum applicants are automaticallyconnected to the local authority housing schemeand entitled to apply, under Section 13, for an‘integration loan’, rather than be eligible forbackdated benefit payments.


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LegislationThis section of the chapter will provide an overviewof current UK asylum legislation. The UK ratifiedthe Refugee Convention, in 1954, and the Protocol,in 1968, both of which it adhered to withoutintroducing any further asylum legislation forseveral decades. The Refugee Convention waspartially incorporated into domestic law, in 1993, bythe Asylum and Immigration Appeals Act whichwidened the appeal rights of failed asylum seekers.The Act also introduced the fingerprinting of allasylum seekers and permitted detention of asylumseekers pending the outcome of their application.The Government went on to introduce a furtherpiece of restrictive asylum legislation, in 1996 – theAsylum and Immigration Act, which included a list ofcountries deemed to be safe, and from whichasylum seekers would not be accepted.Entitlement to housing and welfare benefits wasrestricted to those persons who applied for asylumat the point of entry to the UK.

More recently, the Immigration and Asylum Act 1999introduced a range of measures intended toregulate further the asylum system. Among othermatters, the 1999 Act saw the establishment ofthe National Asylum Support Service (NASS) whichco-ordinates the arrangements for supportingasylum seekers and dispersing them to differentareas within the UK.

The Nationality Immigration and Asylum Act 2002introduced accommodation centres witheducational and health services for failed asylumseekers, and resettlement programmes.Accommodation centres differ from asylum removalcentres in that failed asylum seekers would havebeen subject to a less restrictive regime. However,the plans to establish such centres in the UK werereconsidered in favour of a focus on detentioncentres.112 In addition, the Act provided for tighterappeal mechanisms, extension of offences for

112 On 14 June 2005, then Minister of State for immigration, Minister Tony McNulty MP announced in a ministerial statement that the Government had decided not toproceed with the construction of an accommodation centre at Bicester and confirmed that it would not be proceeding with the development of accommodation centres atany other site.

113 See: Chapter 2 for further references to the Limbuela case.

protection, for example, humanitarian protection ordiscretionary leave to remain, or they will berefused asylum.

A common ground for asylum refusal arises fromthe need to submit an application “as soon as isreasonably practicable”. EC Law allows for theGovernment to refuse support to individuals whohave not made claims in a timely manner, on thebasis that genuine claims would be likely to bemade as soon as possible. Article 16(2) of CouncilDirective 2003/9/EC reads:

Member states may refuse conditions […] to ensure astandard of living adequate for the health of applicantsand capable of ensuring their subsistence in caseswhere an asylum seeker failed to demonstrate that theasylum claim was made as soon as reasonablypracticable after arrival […].

The House of Lords ruled in the Limbuela case, in2005, that withholding support from late applicantsmay be a breach of their Article 3 (ECHR) rights tobe free from inhuman and degrading treatment.114

The landmark ruling gave strong consideration tothe reasons why an application might be delayed,for example, due to the mental state of theindividual, the disorientation in a new country,language barriers and lack of knowledge about theprocess. During and after the asylum application,applicants may be entitled to varied levels ofsupport.

In addition, Section 43 extends the provision ofaccommodation under section 4 (hard case)support to local authority housing and widens theapplication criteria for integration loans.

The asylum processUnder current legislation, a person seeking asylumis expected to present either at the ‘port of entry’or ‘in country’ as soon as reasonably practicableafter arriving in the UK. If an application for asylumis made at the port of entry, for example, at BelfastInternational Airport, the applicant will be subjectto an asylum screening interview. During thisinterview, evidence will be gathered on the identityof the person and how they entered the UK. Thisevidence will then be submitted to the Home Officefor consideration along with the asylum application.A person may also make a claim ‘in country’ if sheor he has been in the UK for a period of time, forexample, on a work visa, or has entered thecountry covertly.

Such applicants are required to present in person toa specific asylum office where, like port of entryapplicants, they will be fingerprinted, photographedand subject to an asylum screening interview.Following the screening interview, all applicants areissued with an Asylum Registration card (ARC)which contains the photograph and biometric dataof the applicant. Provided that the applicant is notbeing detained, a temporary admission order isissued, allowing the person the right to remain inthe UK pending the outcome of the applicationprocess. During this time, the applicant may berequired to sign regularly at a police station orremain at a designated address.

An application for asylum can have three differentoutcomes. In successful cases, the applicant willbe accepted as a refugee and granted five yearslimited leave to remain, after which time anassessment will be made on whether it is safe forthe person to return to their country of origin. Theapplicant may be offered an alternative form of


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114 Limbuela, above.

Table 7.1 Rates of Benefit Entitlement

The Maternity Grant is a one-off payment madeunder certain conditions of entitlement; otherwiseall money must be collected weekly from adesignated Post Office, on presentation of aregistration card. Payments will continue to bemade until a decision has been made on the asylumapplication.

Refugees

If an asylum application is successful, the applicantis then considered to be a refugee. Refugees aregenerally permitted to work and claim benefits inthe same way as UK citizens and, provided thereare no delays in accessing services, are generallyprotected from destitution. Similarly, individualswho have been granted leave to remain onhumanitarian grounds may be subject to conditionsof leave, but are generally entitled to accessbenefits and social housing. With regard tohousing, successful asylum seekers and those withleave to remain are given up to 28 days notice tovacate their NASS accommodation. Under housinglegislation, this renders them homeless.

Entitlement to supportAsylum seekers

Under existing legislation, asylum seekers are notentitled to work unless specifically permitted to doso by the Home Office, nor are they entitled toclaim benefits or be eligible for general housingsupport. Instead, asylum seekers may apply forNASS support entitlement which is dependent onhaving sought asylum as soon as is reasonablypracticable.115 The exception to this is if theirhuman rights would be breached by a denial ofsupport.

An applicant may apply for NASS support once heror his application for asylum has been recorded bythe Home Office. If deemed eligible for support,the applicant will have to sign an Asylum SupportAgreement which sets out the conditions ofentitlement, for example, meeting certain reportingrequirements and remaining in the allocatedproperty. Applicants may apply for housing orfinancial support, or both. Accommodation isallocated through the Northern Ireland HousingExecutive (NIHE) and is free of charge. Financialsupport is currently set at 70 per cent of IncomeSupport amounts. The Government’s justificationfor this is that NASS recipients do not have to payutility bills. It should be noted that Income Supportis the minimum amount the Government hasdetermined that a person needs in order tosurvive.116 Table 7.1 outlines the current rates ofentitlement.


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Category Amount per week

Qualifying couple £66.13

Single parent aged 18 or over £42.16

Single person aged 25 or over £42.16

Single person aged 18-25 £33.39

Single person aged 16-18 £36.29

Single person aged under 16 £48.30

Additional payments Amount

Pregnant women £3 extra

Family with baby under 12 months £5 extra

Family with child aged 1-3 years £3 extra

Certain pregnant women £300 lump sum

115 55(1) of the Nationality, Immigration and Asylum Act 2002

116 The Child Tax Credit established a guaranteed minimum income level for families in work, but there are no minimum levels for those on benefit.

for Migration (IOM) is currently charged withrunning the UK’s Voluntary Assisted Return andReintegration Programme (VARRP). Theprogramme is open to all refused asylum seekersand those with temporary leave to remain in theUK. Individuals registered with the programme andtheir family members will be assisted, not only inreturning to their home country but through atailored financial package (up to £3,000) whichprovides the means to establish a new life,including accommodation, training or employment.The support is conditional upon leaving the UKwithin three months of registering with the IOMand not returning.

Individuals awaiting, or unable to, return to theircountry of origin may be entitled to short-termfinancial and accommodation based support underSection 4 of the Immigration and Asylum Act 1999, ifthey would otherwise be destitute. In order toaccess such support, a person must be destituteand must meet one of the following conditions:

• be taking all reasonable steps to leave the UKor placing them in a position to do so;

• be unable to leave the UK because of aphysical barrier to travel or for some othermedical reason, for example, pregnancy. Thisissue was examined in R v Chief AsylumSupport Adjudicator, where it was establishedthat in order to meet this criteria, the personshould, first, be unable to leave the UK and,second, that inability must be by reason of aphysical impediment to travel or for some othermedical reason;119

• be unable to leave because the UK BorderAgency believes there is no safe routeavailable. This criterion is not currently in usebecause the Secretary of State would have tomake a declaration of policy that no safe route

However, their status as refugees entitles them toaccess homeless support through the HousingExecutive.117 In practical terms, this meansrefugees are entitled to temporary accommodationuntil such time as permanent housing becomesavailable. This may mean that a refugee remains intemporary accommodation pending the availabilityof a private tenancy or a vacancy in the NIHEhousing stock.

In addition to this support, in 2007, the Governmentintroduced an ‘integration loan’ to assist refugees,and those granted leave to remain and theirdependents, in settling within the UK. The loan,which is not retrospective, is designed to givefinancial support in setting up a home, undertakingtraining or qualifications and seeking employment.The loans are interest free and subject torepayment terms. The repayments will becollected by the Department for Work and Pensionsthrough mechanisms already in place to collectthird party deductions such as utility debts andfines. Where a refugee is not receiving statebenefits, she or he will repay the loan directly tothe Department for Work and Pensions. In mostcases, repayment of the loan will commence sixweeks after the funds are released to the individual.

Failed single asylum seekers

Once an asylum claim has been denied, and noleave to remain has been granted, an appeal maybe lodged within a specific period of time.118 NASSsends a letter in English which explains that itssupport will end in 21 days. Interviews conductedwith the Asylum Development Unit, in Belfast,indicate that letters may be translated asappropriate. If the appeal fails, the applicant willbe expected to leave the country as soon aspossible. The refused asylum seeker may opt toreturn by her, or his, own means, or seekassistance to do so. The International Organization


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117 For the purposes of a homelessness application, if they have received asylum/refugee status, applicants will still have to establish ‘priority need’.

118 At present, individuals who are in detention must have their appeal form received within five working days. This period is extended to 10 working days for those not indetention.

119 R (on the application of the Secretary of State for the Home Department) v Chief Asylum Support Adjudicator CO/10382/2005.

A: “I survive on that, £10. I am very careful and Ieat little. I get a few eggs, bread, chips.”

Q: “You can make it last?”

A: “Yeah.”

The vouchers do not cover certain items liketoiletries and baby formula, and cannot be used topay for transport or other services, leaving anumber of gaps in provision which cash paymentscould address. The accommodation and vouchersprovided are minimal so as to provide no incentivefor people to remain in the UK, but must be of astandard deemed to be compatible with theprovisions of the ECHR. The use of vouchers isdiscussed in Chapter 4. The Joint Committee onHuman Rights (JCHR), and other bodies, has calledfor an end to the use of vouchers, in particular asthe sole means of support, as they are generallyregarded as limiting, stigmatising and degrading.

There is currently no obligation on NASS to arrangefor the continued support of an asylum seekerwhen her or his asylum application fails, resulting inan inevitable delay for the individual in accessingalternative assistance. Once a claim for asylum hasfailed, a person can then apply for Section 4support; however, the application process canreportedly take up to eight weeks which means, inthe interim, people are without accommodation orfinance. Research in England and Wales indicatesthat many people simply do not know of theexistence of Section 4 support.121

Failed asylum seeking families

Section 4 support is available only to singleindividuals while families could, in theory, continueto receive NASS support, pending their return orremoval.122 A change to the law, in 2004, createdthe power for the Secretary of State to revoke

exists to a particular country and, at present,no such policy exists in relation to any country;

• have applied for a judicial review of an asylumapplication and been given permission toproceed with it. In this situation, a person isentitled to Section 4 support. The court willgive the person evidence of the judicialprocess which they can then present to NASS;

or

• be in need of accommodation in order toprevent a breach of their rights under theHuman Rights Act 1998.120 NASS interpretsthis as meaning the person has made a freshclaim for asylum or an Article 3 claim withinthe meaning of the 1998 Act (regardinginhuman and degrading treatment) that hasbeen received but not recorded.

In order to receive Section 4 support, the applicantmust sign a form stating the intention to returnhome as soon as the Secretary of Stare determinesthat it is safe for her or him to do so. Section 4support differs from NASS support as it does notinvolve any cash payment. Instead, recipients areprovided with accommodation and vouchers,reportedly up to £35 per week, to claim againstfood and other essentials from designated outlets.The weekly amount is stipulated on the NASSwebsite. However, as the following extract shows,in one case, a client interviewed by theinvestigators was only receiving £10 per weekwhile awaiting return.

Q: “Has the IOM been able to give you any moneyfor food?”

A: “They give me vouchers… £10 for a week.”

Q: “How do you survive on that?”


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120 In the case of a failed asylum seeker, such support from a local authoritywould be provided only if there would otherwise be a breach of Conventionrights, as provided for under Schedule 3 of the Nationality, Immigration andAsylum Act 2002. In Northern Ireland, the Trusts should provide supportunder Article 15 of the Health and Personal Social Services (NorthernIreland) Order 1972.

121 Asylum Support Appeals Project (2007), Failing the Failed: How NASSDecision Making is Letting Down Destitute Rejected Asylum Seekers, ASAP,Croydon, p 11.

122 Individuals denied access to section 4 have three days to lodge an appealwith the Asylum Appeals Agency.

a blanket basis as initially proposed, but on a case-by-case basis.

If NASS withdraws support, the legislation statesthat local authorities have to provide assistance tochildren and to adults if failure to do so wouldresult in breach of ECHR rights. The failed asylumfamily can apply to a Trust for support underSection 18 of the Children (Northern Ireland) Order1995 (the Children Order). Trusts can only refuse tosupport the family if it is satisfied that to do sowould not breach the family’s ECHR rights. If theTrust deems it necessary to accommodate the childto avoid a breach of ECHR rights, it may be possibleto argue that the family should also beaccommodated to protect the right to family life,under Article 8 of the ECHR. This issue was raisedin R (J) v Enfield LBC, where the claimant wasawarded damages for breach of his Article 8 rightsin respect of an authority’s failure to take steps toprovide accommodation to his family to meet theircommunity care needs.126 Ultimately, if there isconcern for the safety of the child, the Trust cantake the child into care under Section 26 of theChildren Order, thus removing any duty toaccommodate the parent(s). However, as statedelsewhere in this report, unless it is in the bestinterests of the child, the Trust should not removeher or him from the family on the sole basis that theparents are excluded from housing and financialsupport.

No support

While access to support under sections 4 and 9 isfraught with difficulty and ultimately provides only aminimal level of assistance, there are many peoplewho, having failed the asylum process, are leftdestitute. A 2006 report, by the House of CommonsCommittee of Public Accounts, highlighted that theHome Office can only state that there is somewherebetween 155,000 and 280,000 asylum seekers who

NASS support to families where it was believedthat they had not taken reasonable steps to leavethe UK. Section 9 of the Asylum and Immigration(Treatment of claimants, etc) Act 2004 provides nogrounds for appeal against the Secretary of State’sdecision.

Section 9 was, according to the then Minister forImmigration and Asylum:

[…] intended as a means of influencing the attitudesand behaviours of unsuccessful asylum seekingfamilies who are not taking steps to facilitate theirdeparture from the United Kingdom to their country oforigin. It does this by providing for the termination ofsupport in cases where the assessment is that thefamily is not co-operating or placing themselves in aposition where they can leave.123

The provision was piloted between December 2004and December 2005, in three areas. Ultimately, thepilot found that removal of support did notencourage return of asylum families, rather, insome instances, it was felt that fear of the Section9 process pushed families underground.124 As theGovernment’s report on the pilot project stated:

Evidence suggests that a significant number of thefamilies may have absconded from theiraccommodation because of concerns about thesection 9 process.

One voluntary organisation commented:

“When the process ends, they become invisible; theydon’t give addresses, they don’t sign on with thepolice.”

The Commission shares the concerns, raisedprimarily by the voluntary sector, about thepotential for Section 9 to leave families, includingchildren, destitute.125 Despite widespread criticismof the provision, the Government has continued toallow the withdrawal of funds from families, not on


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123 Written Ministerial statement, Hansard, 25 June 2007: Column 9WS.Available: http://www.publications.parliament.uk/pa/cm200607/cmhansrd/cm070625/wmstext/70625m0002.htm [9 July 2009].

124 Border and Immigration Agency (2007) Family Asylum Policy, The Section 9Implementation Project Report, BIA, London, section 2.2.

125 Above.

126 R (Bernard) v Enfield LBC, Queen's Bench Division, 25 October 2002.

Acknowledges that although all children arevulnerable to violence, some children, because of,inter alia, their gender, race, ethnic origin, physicalor mental ability, or social status, are especiallyvulnerable, and in this context calls upon States toaddress the special needs of unaccompaniedmigrant and refugee children and to combat thesexual exploitation of children.128

Unaccompanied asylum seeking children (UASC) gothrough largely the same asylum process as adultsand, like adults, the claim for asylum can result inone of three outcomes. Table 7.2 provides abreakdown of the outcome of claims made byasylum-seeking children and illustrates that,consistently, such claims tend to result in thegranting of limited leave to remain. Limited leave isa form of humanitarian protection and usuallyextends until the child reaches the age of 18 whenher or his right to remain is reassessed.Table 7.2 Outcome of UK-wide UASC applications

Until 18 years of age, unaccompaniedasylum-seeking children will be cared for by theTrust, at which point the right to remain in the UKmay be reviewed. In cases where a child is entitledto remain in the UK beyond 18, the Trust has acontinued duty of care until the individual reachesthe age of 21, or beyond depending on time lookedafter and whether she or he is in full-timeeducation.129

have been unsuccessful in their asylum claim, yetare still living in the UK without any statutorysupport.127 The figures evoked a powerful responsefrom the churches in the UK whose joint letter waspublished in The Times, in December 2005, criticisinggovernment asylum policies:

We believe that it is inhuman and unacceptable thatsome people seeking asylum are left homeless anddestitute by government policies. Every city haspeople destitute or living on food parcels becausethey have no means of support […] We therefore callon the Government to allow people seeking asylum tosustain themselves and contribute to wider societythrough paid work, and where this is not possible, tore-instate ‘refused’ asylum seekers’ entitlement tobenefits until such time as they may be removed.

Unaccompanied minors

The term, ‘unaccompanied minor’, refers to anyperson under the age of 18 who is outside theircountry of origin and separated from both parents, orfrom a previous legal or customary primary caregiver. In December 2008, the UK removed itsreservation under Article 22 of the CRC. This meansthat children, who are in the UK subject toimmigration rules, are entitled to full protection ofthe rights contained within the Convention.Regardless of where the child originates, theChildren Order confers a duty of care on the statetowards unaccompanied children under the age ofeighteen. During the course of the investigation, theCommission became aware of primarilyunaccompanied minor cases involving asylum claims.As a result, this section of the report will focus onthe experiences of asylum-seeking children inNorthern Ireland. It should be noted that, in theory,all unaccompanied children are entitled to the samecare and assistance irrespective of immigrationstatus, as provided for at an international level by theDurban Review Conference, which:


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2002 % 2003 % 2004 % 2005 %

Decisionsmade 6,990 3,835 3,440 2,835

Asylumgranted 625 9 165 4 105 3 170 6

Asylumrefused 1,575 23 890 23 830 24 870 31

Limitedleave 4,790 68 2,780 73 2,505 73 1,795 63

127 House of Commons Committee of Public Accounts (2006) Returning failed asylum applicants, Thirty-fourth Report of Session 2005-06, HC 620 2005-06.

128 Durban Review Conference, outcome document, April 2009, para 89.

129 Children (Leaving Care) Act (Northern Ireland) 2002.

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The agenciesThe following section provides an overview of theresponsibility of each of three government agencieswith regard to asylum seekers and refugees.


The investigators did not encounter any benefitclaims involving asylum seekers during the courseof the fieldwork. This may be because the SocialSecurity Agency (SSA) has no responsibility inproviding benefits as this is handled separatelythrough NASS. Two applications for IncomeSupport by refugees were reviewed, but theinvestigators had no concerns in either case. Inaddition to reviewing case files, the investigatorsalso asked staff about their experience of asylumseekers and refugees; however, only one of theinterviewees recalled direct contact, as set out inthe following extract:

“[…] with that [refugee] lady, we spent most of theday on the phone to the Borders Agency. I know it isslightly different because she was subject toimmigration, so we were trying to get them to issueher with something and I convinced them to actuallyfax us through something that enabled us to, when wecouldn’t pay her Income Support, on that day, wewere able to secure, well, let her apply for a SocialFund loan… I was concerned, this sounds ridiculous,but as a human being, that I was going to send thislady away, who was obviously, who was not a wellwoman, with no money. I was concerned about, thatis why I phoned the borders agency every 15 minutes,‘have you made a decision, can you fax me somethingthrough, can you give me a clue on this’….” (SSAinterviewee)

Another staff member recognised generally theeligibility restrictions faced by people subject to the‘no recourse’ rule and the subsequent limitations onstaff:

“There will be cases where people come in and theyhave no recourse to public funds whatsoever and,unfortunately, we cannot pay them a crisis loan. Allwe can do is signpost them to local charitableorganisations or the local voluntary groups that we areaware of.” (SSA interviewee)

Northern Ireland Housing Executive

The Northern Ireland Housing Executive (NIHE) hasoperated an Asylum Development Unit (the Unit)since 2001, which currently has three staff and isbased in central Belfast. The Unit has a contractwith the UK Border Agency (UKBA) to providetemporary accommodation to asylum seekers inreceipt of NASS support. The Unit is alsoresponsible for housing people who are in receipt ofSection 4 support, pending return to the country oforigin. Referrals to the Unit come from the UKBAwhich receives referrals from a variety of sources,including the Law Centre (NI) and Bryson One StopShop, both of which have close links with the Unit.

The accommodation used to house asylumapplicants is a mixture of Housing Associationstock and private rented accommodation. Housesof multiple occupancy are also used, whereappropriate, for single claimants but never forfamilies. Home visits with asylum applicants areconducted monthly by the Unit’s staff to ensurethat the accommodation is up to standard and thatthere are no problems. Individuals areaccommodated until such time as the UKBA directsotherwise, for example, until a claim for asylum hasbeen decided. Table 7.3 indicates the number ofpeople being accommodated by the AsylumDevelopment Unit under the Immigration and AsylumAct 1999, in November 2008.

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Table 7.3 Number of asylum applicants accommodated bythe Asylum Development Unit in November2008

According to the NIHE staff, while the number offamilies presenting to it remains static, there hasbeen a considerable increase in the number ofsingle individuals presenting for asylum support.Regular NIHE staff in Belfast were aware of theexistence of the Unit, however, there was noawareness of the Unit in the Cookstown orDungannon offices. Certainly, the majority ofasylum cases would present in the Belfast area dueto the proximity to ports and airports; however, thatdoes not negate from the fact that asylum seekerscould present elsewhere in Northern Ireland, forexample, from the Republic of Ireland. Therefore,even though individuals cannot present directly tothe Unit, knowledge of asylum support should beconsistent throughout the NIHE offices to ensurethat appropriate referrals are made.

The issue of priority need, which was discussed indetail in Chapter 3, also arises in relation to asylumseekers and refugees. Asylum seekers are dealtwith through NASS and, therefore, separate fromthe regular housing application system until suchtime as a decision has been made on the asylumapplication. If the asylum application decision ispositive, the applicant will be recognised as arefugee and given 28 days to vacate the NASSaccommodation. As a refugee, the person will beentitled to homelessness support if granted priorityneed and will, therefore, be eligible for temporaryhousing, while awaiting either private rented orNIHE accommodation. If the asylum decision is

negative, the person will be deemed to be a failedasylum seeker and given 21 days notice untilsupport is withdrawn, at which point, they will haveto vacate NASS accommodation. At present,refused, or failed, asylum seekers may apply forSection 4 support or may be entitled to the Trust’sassistance, if this is required to avoid a breach ofECHR rights. The following case exampledemonstrates some of the complications which canlead to a failed asylum seeker facing destitution.

Case study: failed asylumMikel is an asylum seeker, from a non-EEAcountry, who initially came to NorthernIreland as an unaccompanied minor overthree years ago, at which point he wasgranted humanitarian protection and caredfor by the Trust. When he reached 18, Mikelapplied for leave to remain in the UK on thegrounds of asylum, but his application wasrefused and his appeal failed. Mikel wasliable for removal but, because he had nopassport, was unable to be removed. HisNIHE case file included a letter from theHome Office, stating his liability for removalto an immigration detention facility and therequirement that he remain at the addressspecified, and report weekly to police. Hehad no recourse to public funds and was notallowed to work. He had been living with hisgirlfriend, at the address specified by theHome Office; however, the relationship brokedown.

Mikel presented to the NIHE forhomelessness support; however, as aperson subject to the no recourse rule, hewas not entitled to support. As a failedasylum-seeking, single male withoutadditional vulnerability, he was deemed notto be in priority need despite being destitute.A note in Mikel’s NIHE case file indicatedthat a referral had been made to the Trust;

Type Support Units Total

Single Section 95 104 104

Single Section 4 11 11

Family Section 95 56 156

Family Section 4 5 10

281

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however, unless Mikel was able todemonstrate that he was destitute and hadan additional vulnerability, it is unlikely thatthe Trust would provide support exceptwhere he was eligible for leaving andaftercare support under Leaving After Careprovisions. As a result, it is likely that Mikelwas left destitute and dependent on thegoodwill of others, pending his eventualremoval from the UK.

The TrustsLocal authorities have a limited duty to provide forfailed asylum seekers, if failure to do so wouldresult in breach of ECHR rights. The Trusts haveduties to carry out assessments of need undercommunity care legislation.130 Where children areinvolved, the Trusts have duties under childprotection legislation.131 A local authority still has aresponsibility to provide for unaccompanied asylumseekers under the age of 18 years. Once theyreach 18, asylum seekers with unresolved casesmove into the NASS support system. For thosewith needs ‘over and above destitution’, includingasylum seekers with mental health issues, pregnantwomen and older people, the Trusts have a duty toprovide assistance.132

The investigators found good practice, in the main,in relation to the Trusts’ response to unaccompaniedchildren, with certain offices having significantexperience of dealing with these cases. Oneconcern, however, is the apparent lack ofemergency accommodation for unaccompaniedchildren, which resulted, in a number of occasions,encountered by, and told to, the investigators, in theuse of unsupervised and un-vetted bed andbreakfast accommodation. This raises issues interms of ensuring the best interests of the child, aswell as issues relating to the child’s health,wellbeing, association, protection from violence andexploitation, and education.

A further area of concern relates to ageassessment of unaccompanied children, which isconducted in cases where there is a dispute as towhether the child is over or under 18 years of age.At the time of writing, only two social workers inNorthern Ireland have been trained to make theseassessments, which are important in ensuring theappropriate placement of children and thatindividuals over 18 are not inappropriately placedwith children. The lack of trained staff createslengthy delays in assessing applicants. In onecase, reviewed by the investigators, a child hadarrived in the UK on 11 August 2008, but due tostaffing issues would be unable to undergo an ageassessment until 30 October the same year. As itstands, the Trusts do not have to provide supportuntil it is established that a person is below the ageof 18 and, therefore, the responsibility of the stateis in line with the Children (Northern Ireland) Order1995. However, as previously stated in this report,the investigators found primarily good practice inthe handling by the Trusts of unaccompaniedchildren cases. Through a review of case files andinterviews with staff, the investigators found that,where a dispute arises, the Trusts tend to give thechild the benefit of the doubt and continue support.

The investigators found that unaccompaniedchildren were presenting with a range of issues.One teenage mother had experienced sexual abusein her home country; a number of children had fledsituations of conflict, violence or politicaloppression; and two children had been trafficked orsmuggled into the UK and some were subsequentlysubjected to economic exploitation. One child hadwitnessed the destruction of his village and murderof his brother. While no two asylum-seekingchildren’s cases are the same, the following casestudy is a typical example of the Trusts’ response toan unaccompanied child.

130 Health and Personal Social Services (Northern Ireland) Order 1972.

131 Including, for example, the Children (Northern Ireland) Order 1995.

132 See: Chapter 4 for a detailed account of duties.

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Case study: unaccompanied childSue had arrived in Northern Ireland as anunaccompanied minor from a non-EEAcountry. She had been orphaned in herhome country and spent some timedestitute, relying on casual catering workand begging to survive. Sue experiencedregular physical attacks while on the streets.A man, alleging to be from a well-knowncharity, provided Sue with false documentsand the means to travel via London toBelfast. She made an application for asylumwhen she arrived at Heathrow airport. Suehad been provided with a contact for a manfrom her country of origin in Belfast. Shepresented to the Northern Ireland Council forEthnic Minorities (NICEM) as an asylumseeker and was referred to the Trust’s team.Social workers provided Sue with access tomedical care and with accommodation,which was specifically for young people, forsix-and-a-half months. Support wasprovided under the Children (Northern Ireland)Order 1995 and section 15 of the Health andPersonal Social Services (Northern Ireland)Order 1972. After the initial period ofaccommodation, Sue was provided with theappropriate support and assistancenecessary to live in private rentedaccommodation with a friend.

In addition to support with accommodation andsubsistence, many of the young people receivededucational support in the form of school enrolmentand language classes and, in some cases, furthereducation was provided, all of which aided theintegration of the young people into society. Themajority of the children had legal representatives,primarily to deal with asylum claims. In somecases, social workers had linked children withrelevant religious or community organisations. Forexample, in three cases, children were brought toMosque and provided with religious materials andculturally appropriate food.

Overall, the investigation’s findings were verypositive in respect of the care of unaccompaniedchildren, with the exception of the use ofunsupervised bed and breakfast accommodation.

The investigation findings in relation to failed adultasylum seekers were less positive and reflective ofthe overall concerns regarding the lack of clearguidance and training for the Trusts’ staff on theirduties and responsibility with respect to homelessindividuals.

As this chapter has shown, in cases where thereare children involved, there was inconsistentpractice among different offices, despite the clearduty which exists to all children under the ChildrenOrder. As Chapter 8 on domestic violencehighlights, the issue of immigration status andfinancial dependency creates an additionalimbalance between victims of domestic violenceand abusers, and a further barrier to accessingsafety and support. Add to this the uncertaintyfacing refused asylum seekers with no access tobenefits or entitlement to work, and the situationbecomes critical.

In cases where there are no children, a single failedasylum seeker faces the serious challenges in thatshe or he cannot access the Trusts’ support unlessit is necessary in order to avoid breach of ECHRrights. Chapter 4 has already set out the concernsin relation to this gap in service provision. Whatremains to be said in relation to failed asylumseekers and destitution is that, in addition to thepractical needs of this group of people, there areoften serious mental and physical health issues tobe addressed, particularly among those individualsfleeing abuse, exploitation, violence andoppression. Yet, as the situation currently stands,they have no safety net.

As one non-EEA mother explained to a voluntaryorganisation worker, there really is little option butto leave and face destitution, or remain and faceabuse:

“She said she would like to leave him, but she has noaccess to housing and she has no access to anythingreally… It is basically giving him control because he isthe one who is paying for the house and getting anincome…” (Voluntary organisation interviewee)


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abuse and exploitation, in particular, those withinsecure immigration status. A person’s nationalityand subsequent legal status within the UK canimpact on the ability to seek protection fromdomestic violence. The following extract, from aninterview with a voluntary organisation worker,illustrates how immigration status can exasperatethe power imbalance between the abuser and theabused:

“She is in a new marriage, and a new comer toNorthern Ireland. She got married [in her country oforigin] and then her husband, who is working herewith a work permit, brought her back here. Before,she thought here was paradise, but after gettingmarried and coming here it was not as she thought…plus the language barrier, no friends. And then herhusband tried to use her for work and then started toget violent. …she went to college to study English;she did her best but her husband tried to stop herstudying. He wanted her to stay at home to work.She was married little more than one year. …shewas beat a few times, then she left home and thentried to find a job and a place by herself. She isconfused; she doesn’t know if she should divorce,maybe she cannot stay. Unfortunately, her husband isholding the work permit; she is not resident or allowedto remain unless she stays with him.”

Domestic violence can result in seriouspsychological and physical harm to the victim andher or his family. However, violence in the homecan also have significant practical implications,including on housing. During 2003-04,approximately 700 households which presented ashomeless to the Northern Ireland Housing Executive(NIHE) stated domestic violence as the cause ofthe homelessness.136 This chapter will examine theissue of domestic violence in the context ofhomelessness, with a focus on those women withno, or limited, access to public funds.

ContextThe United Nations’ Declaration on Violence AgainstWomen defines violence against women as:

Any act of gender based violence that results in, or islikely to result in physical, sexual or psychologicalharm or suffering to women, including threats of suchacts, coercion or arbitrary deprivation of liberty,whether occurring in public or private life.

The Police Service of Northern Ireland (PSNI)defines domestic violence as “any incident ofthreatening behaviour, violence or abuse(psychological, physical, sexual, financial oremotional) by one family member against anotheror adults who are or have been intimate partners,regardless of gender”. The police statisticsindicate that up to one third of all recorded crime inNorthern Ireland is related to domestic violence. Itis, however, well established that incidents ofdomestic violence are severely underreported. Anumber of social and practical barriers to reportingexist, particularly for certain categories of victims.Victims of same-sex domestic violence are lesslikely to officially report abuse than those inheterosexual relationships.133 Women’s Aidrecently reported that disabled women wereunlikely to report abuse due to physical andpractical constraints.134 Research hasdemonstrated that Black and minority ethnicwomen are less likely to report domestic violenceto the police for fear of racism.135 While womenhave traditionally been the focus of domesticviolence, men too can be victimised and researchhas increasingly emphasised the impact ofdomestic violence on children.

Victims of domestic violence come from across allgeographical, social, economic, class and culturalboundaries within the UK; however, certaincategories of people are particularly vulnerable to


8Domestic violence“It is not that I am complaining for this roof above my head, and I have food, but if I could workI could go out and buy something for myself and it is a different feeling altogether to have yourown money.” (Non-UK national interviewee)

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133 Lundy S (1993) ‘Abuse that dare not speak its name: assisting victims oflesbian and gay domestic violence in Massachusetts’, New England LawReview, 28 273, winter 1993.

134 Hague G, Thiara R, Magowan P and Mullender A (2008) Making the Links:Disabled Women and Domestic Violence Final Report, Women’s AidFederation of England, Bristol.

135 Mama A (1996) The Hidden Struggle: Statutory and Voluntary SectorResponses to Violence against Black Women in the Home (2nd ed) Whitingand Birch Ltd, London.

136 Northern Ireland Housing Executive, Homelessness Statistics 2003-2004.

measures that effectively respond to the needs ofthose women. In this respect, the Committee urgesthe State party to review its ‘no recourse to publicfunds’ policy to ensure the protection of and provisionof support to victims of violence.

By comparison to CEDAW, international child rightslaw is more direct on the issue of violence andprovides a range of provisions under the CRC,which are intended to afford protection fromviolence and ensure that children, who are harmed,are provided with appropriate support. The CRCasserts the right to life and survival of every child(Article 6), freedom from torture, inhumane ordegrading treatment (Article 37) and it deals, indetail, with all forms of abuse and exploitation (inparticular, Articles 19, 34, 35 and 38). At thecornerstone of the CRC, is the ‘best interests’principle which reaffirms the state’s duty to protectall children. Accompanying protection, as one ofthe key themes of the CRC, is the duty of stateparties to provide for all children. The positiveobligation of provision is crucial in considering thepractical ramifications of domestic violence onvictims and their dependents. Several Articles inthe CRC outline the socio-economic rights of everychild under international law. Crucially, the Articles,establish the right of every child to an adequatestandard of living, including social security andstate-provided material support in relation tonutrition, clothing and housing.139

The UK was examined under the CRC in October2008. The Committee addressed several issuesfundamental to this investigation, namely,protection from violence and provision of resources.In the first instance, the Committee was highlycritical about the prevalence of child abuse andneglect in the UK and the lack of a nationwideprevention strategy. The Committee alsohighlighted the geographical inequality in terms ofaccess to services that are aimed at the physicaland psychological recovery of victims of abuse.

Human rights standardsThe Government is obliged, under international,regional and domestic human rights law, to preventgender-based violence and to ensure victims’access to safety and support. International lawprimarily deals with the issue of domestic andgender-based violence under two treaties: the UNConvention on the Elimination of All Forms ofDiscrimination Against Women (CEDAW) and the UNConvention on the Rights of the Child (CRC).

CEDAW is widely recognised as the basic source offemale-specific human rights. However, it washeavily criticised at the time of its creation by thewomen’s sector, globally, for failing to directlyaddress the issue of violence against women.Since its adoption, in 1979, CEDAW has beensupplemented by instruments which take a moredirect approach to gender-based violence althoughthese do not have the same legal force as aConvention. The Declaration on the Elimination ofViolence against Women and the Beijing Declarationboth place a duty on state parties to protectwomen from violence and to meet their needs asvictims.137 While CEDAW may be textually weakregarding violence against women, the treaty,which is legally binding, remains relevant to theCommission’s investigation as it goes to the heartof the factors which facilitate and exasperatedomestic violence, namely, inequality anddiscrimination.138 In July 2008, the UK wasexamined under CEDAW and, in its concludingobservations, the Committee expressed concernabout the situation of women with no recourse topublic funds, and urged the Government to reviewits policies in this regard. At paragraph 48 of itsconcluding observations of 18 July 2008, theCommittee stated:

The Committee calls upon the State party to keepunder review and carefully monitor the impact of itslaws and policies on women migrants, refugees andasylum-seekers with a view to taking remedial


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137 Declaration on the Elimination of Violence against Women (General Assemblyresolution 48/104, 20 December 1993) and the Beijing Declaration (FourthWorld Conference on Women, Beijing, 1995).

138 See, in particular: Articles 3, 5 and 13.

139 See, in particular: Articles 4, 16 and 27.

Regional human rights law also provides relevantobligations on the state.143 The EuropeanConvention on Human Rights (ECHR) does notdirectly address either the issue of ordinaryintrapersonal violence or specific socio-economicrights. The ECHR has, however, been interpreted,through the courts, to cover forms of violence andabuse under Articles 2 (right to life) and 3 (freedomfrom torture, inhuman and degrading treatment).However, of primary importance to theCommission’s investigation is Article 8, which dealswith the right to family life. In addition, each of therights in the ECHR is further protected by the rightto non-discrimination in Article 14.

LegislationThere are two aspects of UK immigration legislationwhich are relevant to foreign nationals experiencingdomestic violence. The first is the area of lawwhich deals with access to public funds, and thesecond is that which looks at the right to remain.Each of these areas will be examined in turn with aview to demonstrating how current immigrationrules act as a potential barrier to the protectionfrom domestic violence guaranteed to all womenunder international law.

No recourse rule

In Northern Ireland, female victims of domesticviolence may avail of refuge and legal assistancefrom charitable and statutory sources. Theprevalence of female on male, or male on male,domestic violence in Northern Ireland is an area onwhich there is little research and, consequently,little evidence exists. This, therefore, is the subjectof controversy in terms of the allocation ofresources. Currently, male victims of domesticviolence may access voluntary advice and support,

In this regard, the Committee recommended thatthe UK:

Strengthen support for victims of violence, abuse,neglect and maltreatment in order to ensure that theyare not victimized once again during legalproceedings; and

Provide access to adequate services for recovery,counselling and other forms of reintegration in all partsof the country.140

The second relevant issue addressed by theCommittee was that of provision of resources. Aspreviously highlighted, the CRC contains severalsocio-economic rights provisions, among the mostfundamental of which is the right to an adequatestandard of living. While considering the problemof child poverty, the Committee stated particularconcern about the situation in Northern Ireland,where over 20 per cent of children reportedly live inpersistent poverty. Although the Committeewelcomed the Government’s commitment toeradicate child poverty by 2020, it felt that thestrategy was “not sufficiently targeted at thosegroups of children in most severe poverty”.141 Itwent on to highlight the necessity of an adequatestandard of living to all aspects of a child’sexistence and development, and recommendedthat the UK:

Give priority in this legislation and in the follow-upactions to those children and their families in mostneed of support; and

When necessary, besides giving full support to parentsor others responsible for the child, intensify its effortsto provide material assistance and supportprogrammes for children, particularly with regard tonutrition, clothing and housing;142


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140 UNCRC, Concluding Observations, 20 October 2008, para 51.

141 Above, para 64.

142 Above, para 65.

143 Other regions also address the issue of violence against women. TheAmerican Convention on Human Rights is supplemented by theInter-American Convention on the Prevention, Punishment and Eradication ofViolence against Women (1994). The specific Convention requiresgovernments to take measures to eradicate violence against women as wellas to provide effective access to justice and reparations. The African regionalso specifically addresses the issue of violence against women through acomprehensive protocol additional to the African Charter. The Protocol onthe Rights of Women in Africa (2000) places obligations on state parties totake specific measures to address violence against women.

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but not supported accommodation. Access tostatutory support including shelteredaccommodation, subsistence and legal advice isdenied to people with no, or limited, access topublic funds, in accordance with various legislativeprovisions. Often, this appears to absolve localauthorities of any obligation to provide financialsupport to certain categories of people, based onwhether they have a right to reside in the UK.

Women with no, or limited, access to public fundsinclude those who came to Northern Ireland onspousal visas, students, visitors, ‘over-stayers’,refused asylum seekers and undocumentedmigrants. Those who have not fulfilled the relevantworkers registration requirements – the WorkersRegistration Scheme (WRS) (A8) or the WorkersAuthorisation Scheme (A2) – will also be deniedaccess to public funds. Those individuals, to whichno recourse is a condition of the right to remain inthe UK, may face deportation if they seek financialassistance from government agencies. The term‘public funds’, as set out in Chapter 6, includesaccess to social housing and Housing Benefit, inaccordance with the Housing (Northern Ireland)Order 1988, and a number of other benefits listedunder the Social Security Contribution and BenefitsAct 1992.

The practical implications of the ‘no recourse’ ruleis that, often, women are financially dependent ontheir abusers whether they be family, partner,employer or trafficker:

“Without him, it is very difficult... If she had beenborn here it would have been different, but becauseshe has the legal residency because of her husband,everything would depend on him. If he says ‘no’, thatis it, she is not entitled to have the residency. She canstay in the country, but without any document,therefore she is not going to be eligible for any kind ofbenefits… She doesn’t want him with her, not afterwhat he has done.” (Voluntary organisationinterviewee)

Women with no recourse are legally denied accessto safe refuge accommodation because mostrefuges rely on government funding. Access tobenefits or employment may be prohibited as acondition of the right to remain in the country.Such women are not eligible for income basedbenefits. With no safe space, and no financialassistance, non-UK national victims of domesticviolence are essentially trapped as the followingcase study illustrates.

Case study: domestic violenceA non-EEA woman was married to a Britishman and they had one child. The husbandabused the woman over a lengthy period, butshe stayed in the marriage as she felt unableto leave because her husband withheld herdocuments. Finally, after a particularlyserious incident, she presented with her childto a refuge where she was accommodatedand supported. When her passport waseventually released by her husband, itshowed that she had no recourse to publicfunds. The refuge continued to support thewoman and her child, allowing her to stayrent free and providing financial assistancefor food, clothes and toiletries from theemergency budget. The refuge tried to getassistance from the Trust, but it claimed noduty toward the family. The refuge absorbedthe cost, but it was detrimental to theirannual budget.

There is limited assistance for victims beyond thestatutory agencies, with community and voluntarygroups willing to provide advice, support,accommodation and financial assistance where theirmeans allow. However, despite the overwhelmingwillingness and commitment of such groups, whichwas evident throughout the investigation’sfieldwork, these organisations are severely limited intheir capacity to provide assistance due to a lack offunding and other resources.

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Domestic violence rule

A non-EEA person, who marries an Irish or UKcitizen, must fulfil certain criteria in order to obtaina right to enter Northern Ireland. The criteria focuson demonstrating the genuine nature of therelationship and providing evidence of how thevisiting spouse can be sustained financially. Ifthese criteria are fulfilled, the non-UK nationalspouse may remain for a probationary period of twoyears, during which time she or he can have norecourse to public funds. The same rules andconditions apply for unmarried couples who havebeen living together for at least two years. Oncethe probationary period draws to an end, the non-UK national partner can apply to the Home Officefor indefinite leave to remain. A successfulapplication will depend on meeting a number ofrequirements, including being able to demonstratethat the marriage is intact and that the coupleintend to remain together permanently. If, duringthe initial two years the relationship breaks down,then entitlement to a spousal visa ends. Under EEAregulations, unmarried couples who separate, losethe right to an EEA Residence document. However,separated couples may retain their residencyprovided they do not divorce. Once indefinite leaveto remain has been granted, the status of arelationship is irrelevant in terms of the victim’slegal right to remain in the UK.

In 1999, the Government introduced a concessionto the above immigration rules for victims ofdomestic violence, allowing them to apply forindefinite leave to remain in the UK. The rule isextremely limited as it may apply only to thoseindividuals who entered, or stayed in, the UK on thebasis of a relationship with a UK national or personwith indefinite leave to remain in the UK. In orderto apply for indefinite leave to remain, the domesticviolence must occur with the two-year probationaryperiod. The applicant must provide ‘satisfactoryevidence’ to support a claim under the domesticviolence rule. Such evidence must include specific

legal or medical evidence to verify the occurrenceof the domestic violence.

Legal evidence must include at least one of thefollowing:

• an injunction, non-molestation order or otherprotection order against the sponsor (otherthan an ex-parte or interim order)

• a relevant court conviction against thesponsor, or

• full details of a relevant police caution issuedagainst the sponsor.

In the absence of the specific legal evidence, theapplicant must provide two of the following:

• a medical report from a hospital doctorconfirming that the applicant has injuriesconsistent with being the victim of domesticviolence

• a letter from a GP who has examined theapplicant and is satisfied they have injuriesconsistent with being the victim of domesticviolence

• an undertaking given to a court that theperpetrator of the violence will not approachthe applicant who is the victim of violence;

• a police report confirming attendance at thehome of the applicant as a result ofdomestic violence

• a letter from the relevant Trust confirming itsinvolvement in connection with domesticviolence, or

• a letter of support or report from a women’srefuge.

The application procedure can be a lengthyprocess, particularly as specialist immigrationlawyers are in short supply and high demand inNorthern Ireland. Interviews with immigrationlawyers indicate that the process can take severalmonths and sometimes longer when information islost or mislaid. In 2002, the Government

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incorporated the domestic violence concession intothe immigration rules, which means that applicantsunder the rule now have a right of appeal if theinitial application is refused. The Government alsomade a commitment, through the UK BorderAgency (UKBA), to fast track applications forindefinite leave to remain based on the domesticviolence rule.

In addition to the lengthy time frame, applicationsunder the domestic violence rule have seriousfinancial implications for the victim. There is a£750 non-refundable application fee which placesobvious limitations on non-earning victims. The feewill not be waived unless it is established that thevictim is completely without funds. This meansthat the victim must be beyond the legal definitionof ‘destitute’ in order to qualify for a free of chargeapplication fee. The issue of the fee was raised byseveral immigration lawyers and communitygroups, during the investigation fieldwork, who feltthat it was inordinately high. An example wasprovided of a woman who had to use her last £10toward the fee. In one case, a woman who hadbeen awarded damages by the state had to use hercompensation towards the fee, thereforeessentially returning the compensation to theGovernment. During the course of the application,the applicant will have no recourse to public fundsand can potentially be left destitute. Only whenleave to remain has been granted, will the applicanthave access to public funds.

Case study: domestic violenceA 27-year-old, non-EEA woman, married to aman from Northern Ireland where she liveswith her two children. She also had afive-year-old daughter in her home countrywho is being cared for by family who aredependent on her to send money homeregularly. Having experienced domesticviolence, the woman applies to a women’srefuge for support. The organisationcontacted the Trust which was reluctant tosupport the woman.

The woman’s husband then applied forcustody of the children, on the basis thattheir mother was unable to support them. Ifthe mother is deemed unable to support thechildren, the father can get custody eventhough he has perpetrated domesticviolence. The woman then applied for anon-molestation order and occupancy orderthrough legal aid, which enabled her toreturn to the family home. The husbandremained listed on the tenancy and, as thewoman had little or no financial support shedefaulted on her rent and faced eviction bythe NIHE.

The woman has since applied for indefiniteleave to remain; however, any residencywould be dependent on her spouse working,his remaining in UK and their marriageremaining intact. The woman has becomementally unwell as a result of the stress andneeds to send money home for the upkeepof her daughter or she will be abandoned.She continues to get advice and supportfrom voluntary and community organisations.

The reality of the domestic violence rule is that it isa very limited concession accessible only to thosewhose partner is a UK national or a person with aright to remain in the UK, and then only available to

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those women who are financially self sufficient.The women who pursue this avenue face a difficultand uncertain future. Many fall outside thissupposed safety net, including those whose partneris from another EU country. The following casestudy illustrates the logistical and administrativedifficulties which arise when both victim andperpetrator are non-UK nationals.

Case study: domestic violenceA pregnant non-EEA woman resides with herEU husband and two children in NorthernIreland. They had been living here for anumber of years and both children were bornhere. The woman presented with domesticviolence and the Trust placed her and herchildren in a women’s refuge. After a time,the Trust claimed that it was too expensiveto keep the woman and they wanted to sendher and her children home once herpregnancy has ended.

The woman’s husband had withheld herdocuments so she was unable to verify herright to remain in the country. The refugeattempted to obtain information from theHome Office about her status or that of herhusband, but the Home Office would notdisclose anything to the refuge nor to thewoman, due to data protection. Thehusband continued to withhold herdocuments and only returned them to allowher to claim child benefit. The refugecontinues to work with the woman and alegal advisor on her case.


The Social Security Agency (SSA) has a limitedduty to individuals with no, or limited, recourse topublic funds, whatever their circumstances.Agency staff have a duty to accept and processbenefit applications and to provide advice andassistance on benefit related matters. Victims of

domestic violence, who are considering leaving orwho have left abusive relationships, may present toSSA offices for information on their entitlements.As previously demonstrated, those with no, orlimited, recourse to public funds are not entitled toclaim income related benefits. Victims with no, orlimited, recourse are also ineligible for Social Fundassistance, including Community Care Grants, adiscretionary non-repayable sum intended to helprelieve exceptional pressure on the woman and herfamily.

As set out earlier in the report, the issue ofdomestic violence is one which arises in relation tofactors affecting destitution, both in scoping for theinvestigation as well as in interviews withcommunity and voluntary groups. For thesereasons, staff at each of the SSA offices wereasked specifically about their approach tocustomers presenting with domestic violenceissues. The response was generally positive anddemonstrated an overall compassion and anindividual willingness to provide assistance:

“[…] if somebody comes in and says that they wereattacked, we would try and get them moneyimmediately, like crisis loans or whatever… So you dotry and it is not special treatment, it is just like you feelsorry for them, you know.” (SSA interviewee)

Staff at all three locations had a basic knowledge ofthe local voluntary and community organisationsand were willing to provide contact details toclients. This, in itself, is a positive observation andboth the SSA and the Commission are of theopinion that where SSA staff have fully compliedwith their obligations, and then provided additionaladvice and direction, that should be encouraged.However, concerns are expressed throughout thisreport at the over-reliance of statutory bodies onvoluntary organisations where there is a resultingfinancial burden involved.

between the SSA and either the NIHE or the Trustson the matter of domestic violence.144 One officeexplained how it would verify the occurrence ofdomestic violence with the police.

“We would come across domestic violence and wewould have contact with PSNI, you know, domesticviolence unit, because maybe with Community CareGrants, you know, where there was a history of that,and we would try and verify specific incidents theyhave highlighted in their applications.” (SSAinterviewee)

However, the investigators found no statutory orpolicy requirement to verify domestic violence forthe purposes of Community Care Grants. It isconcerning that domestic violence victims might beexpected, as the following quote implies, not onlyto have reported abuse to the PSNI, but also todetail specific incidents of domestic violence toSSA staff for the purposes of corroboration beforebeing considered for a Social Fund payment.During factual accuracy checks of this report, theSSA management confirmed that no legal or policyrequirement exists for PSNI verification of adomestic violence incident. Management furtherstated that verification is sought to establish thegrounds of any Social Fund claim and in the case ofdomestic violence evidence of contact may besought from a range of sources, for example, theNIHE, the Trusts, Women’s Aid or the PSNI.


The NIHE is responsible for assessing people, whopresent as homeless, by applying thehomelessness legislation – the Housing (NorthernIreland) Order 1988, as amended. Chapter 3 of thisreport has already outlined the limited duty whichexists between the NIHE and homeless non-UKnationals. This section will briefly examine thespecific duty which the NIHE has to victims ofdomestic violence, and illustrate the gaps in

Information illustrative of over-reliance came fromstaff across the three agencies and from interviewswith voluntary agencies. Where an over-relianceoccurs it may in part be due to the restrictivelegislation which limits the ability of SSA staff toassist as well as a lack of SSA understanding of therole of the Trusts. In one office, staff had a veryclear understanding of the voluntary organisationsand sign-posted clients appropriately:

“We would get cases in Social Fund where you mighthave someone, you know enquiring, telling us aboutdomestic violence, et cetera, and what can they do.So I mean, we will, if they are a person ringing up,a female ringing up and who has an entitlement andalready on benefit, we can then tell them about thegrant, but we would also then signpost them to [arefuge], just up the road here. We have really goodliaison with them and would be on first name termswith the manager up there and we can say, you know,give us your contact details and with permission, wewill pass them on or we will give you the number hereto contact this person or various other hostels. But, atthe end of the day then, it is down to that person. Ifyou know, their personal choice, if they decide to goahead and do that, but certainly the manager in [therefuge] would liaise with us.” (SSA interviewee)

Staff at one office explained how they had regularcontact and information exchange with their localwomen’s refuge:

“We have a Women’s Aid hostel within our areawhich we would actually have very close links with.I used to be a visiting officer and would have been outfairly frequently to it.” (SSA interviewee)

While SSA staff demonstrated good practices inrelation to signposting clients to voluntaryorganisations, they also exposed gaps ininteragency co-operation. There was no evidencepresented to the investigators to indicate any links


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144 During factual accuracy checks of this report, the SSA provided the following information: “[…] it is worth noting the Agency has a representative on the ‘NorthernDomestic Violence Partnership’. This partnership meets bi-monthly and is represented by such organisations as the Police Service of Northern Ireland, The HousingExecutive, The Trusts, The Northern Trust, DHSS&PS (Domestic Violence Unit) and Barnardos (Domestic Violence Consultant). There are also representatives from healthcare professionals and from the voluntary sector”. This information was not provided during the fieldwork period, nor was it apparent in any of the 60 interviews withgovernment agency staff. This illustrates the point that, although links may exist at a senior level between agencies, there was no evidence of established interagencyco-operation among front line staff.

she might not want anyone else to be there… If shewants me to come at eight o’clock in the morning oreight o’clock at night, I will be there after hours.”(NIHE staff interviewee)

Equally, however, the comments of one senior NIHEstaff member, included in the interview extractbelow, deeply concerned the investigators andemphasised the culture of misunderstanding whichexists around domestic violence.

“There was one incident… There was a girl, sort ofvery volatile. …I think she was fit to give as much aswhat she took, you know; she fired an air gun at himand he blacked her eyes and then they were all smilesagain. She came over here with really bad teeth andthen he punched her teeth out, but then once shewent and got a whole new set of dentures, and all onthe National Health, she couldn’t stop smiling. That isthe way he told me, you know; he said she neveractually smiled until she came over here, she got hernew teeth.”

Q: “And would that case have involved eligibilityissues?”

A: “No… she was [an EEA national] and she had twoor three different boyfriends on the go. I think itwas a question of jealousies… passions wereinflamed; she fired an air gun and put a hole in himand then he turned around and belted her up theface. She was took away with broken teeth. Shegot a new set of teeth out of it …then they wereback together and everybody was happy.” (NIHEstaff interviewee)

In the majority of interviews, staff demonstrated agood knowledge of the role of voluntaryorganisations and a willingness to refer, primarily toWomen’s Aid. In just one instance did a staffmember refer to other statutory agencies as havinga role to play:

“If a female has gone to the extent of saying, actuallysaying, that it is domestic violence, on the face of it,I am taking her word for that. I will try and say ‘have

services which exist when the victims are fromoutside the UK.

The current legislation places a duty on the NIHE tohouse homeless people, a definition which includesthose with accommodation who are subject toviolence, or threats of violence, by another personresiding in the house.145 Following theimplementation of the Housing (Northern Ireland)Order 2003, there is now a new ground forpossession which enables the NIHE to apply forpossession in cases where domestic violence hasoccurred. Prior to the introduction of the newprovision, the victim would have had no option butto seek an occupation order, or request the court todirectly transfer the tenancy. This change enablesthe NIHE to perform this function without the victimhaving to go to court. While the legislation hasprogressed in recent years, it remains subject toserious limitations. Most notably, it only applies incases where the perpetrator actually lives with thevictim. It does not take account of abuseperpetrated by partners not living with the victim,and the implications that this has for safe housing.A further fault is that the duty of the NIHE to houseis limited only to individuals who are entitled toaccess public funds, which means that a significantnumber of non-UK national victims of domesticviolence are without statutory support. Althoughvictims may not be entitled to access socialhousing, they are legally entitled to advice andinformation from the NIHE.

Staff at each of the NIHE offices were asked abouttheir approach to cases involving domesticviolence. The responses demonstrated an overallawareness of the issues and compassion towardvictims. One staff member stood out as beingacutely aware of the sensitivity needed inresponding to housing applications from victims:

“If a woman is making a housing application becauseof domestic violence… I phone the person and askwhat would be a suitable time for me to call, because


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145 Article 3(5)(b) of the Housing (Northern Ireland) Order 1988 states: “it is probable that occupation of it will lead to violence from some other person residing in it or tothreats of violence from some other person residing in it and likely to carry out the threats”.

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you contacted social services, have you had any socialworkers over the years and I don’t care whether it waslast week or it could be 10 years ago.” (NIHE staffinterviewee)

In October 2003, the Department of Health, SocialServices and Public Safety (DHSSPS) issued itsconsultation document, Tackling Violence at Home,which contained proposals on domestic violence inNorthern Ireland.146 The document highlighted theneed to increase the range of accommodation andsupport options available to victims of domesticviolence. Despite the legislative and strategicprogress, albeit limited, which have been made inrelation to homelessness and domestic violence,there has been little, or no, positive impact onthose individuals with no, or limited, access topublic funds. In reality, NIHE staff may be willingand able to provide advice and assistance, butunder current legal restrictions can do little else.As one staff member explained:

“If they are not eligible, then that changes everything.It is very difficult when, like with domestic violence,you know that somebody is really desperate andgenuinely needs help and your hands are sort of tied.There is nothing you can do for them.” (NIHE staffinterviewee)

The Trusts

Unlike the NIHE and the SSA, the Trusts cangenerally provide financial and other assistance topeople, irrespective of nationality or immigrationstatus as long as it is necessary to avoid a breachof ECHR rights. The Trusts have an explicit duty ofcare to all individuals under the age of 18 years, inaccordance with the Children (Northern Ireland)Order 1995. However, the investigators found thatthe Trusts’ duties toward adults are strictlydelineated by social work teams allocated to eldercare, physical disability and sensory impairment,mental health and learning disability. Despite being

the only statutory agency which can, in theory,provide practical help, victims of domestic violencedo not neatly fall into any of the operationalcategories. The fact that a category specific to theneeds of this group does not exist is an issue whichaffects all victims, not just non-UK nationals.However the absence of a clear duty to victims ofdomestic violence raises extreme concerns aboutthe safety net available to those victims who haveno entitlement to access funds, and for whom theTrust really is a last resort.

In the course of the investigation, interviews wereconducted with professionals and homeless victimsof domestic violence, some of whom had contactwith the Trusts. A number of common themesarose as the fieldwork progressed, including thelack of clear guidance for, and consistent practiceby, social workers in relation to non-UK nationalvictims of domestic violence. As the following casestudy shows, the gap in service and support has aserious knock-on effect, not only on the wellbeingof the victim and any children, but also hasresource implications for the voluntary servicesattempting to meet the needs of the clients forwhom there are no other avenues of support.

Case study: domestic violenceA woman from an A8 state presented withher young son to a voluntary organisation,seeking help with domestic violence. Shehad left her partner and had been staying inrented accommodation with another womanand her children. She needed £160 to payher rent contribution or she and her sonwould have to leave the accommodationthat night and either face homelessness orreturn to the abusive home. The voluntaryorganisation contacted the Trust which,having spoken with a manager, stated that itwould pay for flights home for the womanand child. However, the woman had a

146 Northern Ireland Office (2005) Tackling Violence at Home: A Strategy for Addressing Domestic Violence and Abuse in Northern Ireland, NIO, Belfast. In its response to theearlier consultation document, in January 2004, the Commission broadly welcomed Government's plans to increase protections for women and others suffering fromdomestic violence and, in particular, the emphasis on preventing domestic violence from occurring in the first place and the attention given to the improvement of supportand protection for victims and their families.

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non-molestation order and a residency order,and could not remove the child from thejurisdiction.

As the wife of a migrant worker, she shouldhave had a right to support, but her husbandwould not supply his WRS certificate. TheTrust agreed to give £97 to a women’srefuge to cover the cost of one week’saccommodation only, despite the fact, thathad they given her £160, she and her sonwould have secured accommodation for onemonth. The woman had also explained thatin her current accommodation the lady sheshared with looked after her child to allowher to work 16 hours per week. The Trustinsisted that she go to the refuge with herson. As a result, she was unable tocontinue her employment and lost anyopportunity to register her work. The stressof the situation led to the woman becomingill, but she is not entitled to Income Supportas her husband is withholding his WRScertificate. The woman and staff at thevoluntary organisation have contacted theHome Office, but they refuse to provideconfirmation of her husband’s status due todata protection restrictions.

The Trust allegedly issued an ultimatum,stating that either she accepted flights homefor her and her son or they would stopsupporting her and her child would be takeninto care. The voluntary organisationintervened in assisting the womanpractically, to the extent that she remains inthe country and is now in registeredemployment.

In cases where the Trusts have decided to supporta victim and her children, the assistance providedhas been inconsistent. Refuge and accommodationproviders commented that they were more likely to

get paid if the Trusts brought the client to them,rather than the client presenting and theaccommodation provider then attempting to securefunding. Some victims commented that they didnot know what money they would get, or when,from one week to another. In some cases, womenwere given supermarket vouchers, others weregiven cash and a small number reportedly receivedfood vouchers from the Trust which can beredeemed against certain items at a supermarket.The investigators found differing practices inrelation to the type of assistance, its frequency andamount being offered, with no explanation of howsupport was calculated. One woman explained,through an interpreter, that she received a total of£30 a week to buy food and supplies for her andher two children:

“It is not every week, it is not like every Monday, itwould come one Monday and the next week it will beon Wednesday and that. Sometimes [I] will have toring to enquire about the money… Sometimes [I]would have to go to [another town] to get the money.”(Non-UK national interviewee)

Domestic violence professionals explained that, inmany cases, the Trusts accepted a duty to thechildren but not to the mother, leading to increasedanxiety for victims. Several people raised concernsabout alleged threats by Trust staff to take childreninto care, in situations where women withoutaccess to public funds have become destitute as aresult of domestic violence. In two such cases,victims and key workers explained that the Trustshad offered to either pay for the family to returnhome or to take the children into care. Thisinformation is extremely concerning because itessentially blames the mother for her inability toprovide for her children and forces her to make acomplex decision, the pressure of which could pushthe victim and her family underground. Thefollowing case example was provided by avoluntary organisation.

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Case study: domestic violence“The victim presented at a refuge herself;she had been given info from our helpline.She was a [non-EEA] woman in her thirties,who had been living in London with herhusband. She came to the UK on his visa.She stated that her husband had becomevery abusive and she had to flee London forher safety and also for the sake of her child(then two-and-a-half years old) witnessingthe abuse. She came to Belfast but statedthat she did not know anyone here. Herexpectations of the statutory agencies werequite high. Unfortunately, the Trust informedher that they had a responsibility to her childbut not to her and they would not financiallysupport her. The refuge had to foregopayment of rent as well as financiallysupport the mother and daughter for food, etcetera, for over two months. She requestedto go back to London as she felt she was notgetting proper support in Northern Ireland.The Trust agreed to pay her flights.”(Voluntary organisation interviewee)

Given the concerns raised in relation to the right tofamily life, social workers were directly asked toclarify their duty regarding victims of domesticviolence. One social worker bluntly explained it as:

“There has to be children involved before we wouldpay”.

The response from social workers was generally ofconcern, but understandable in the context of anabsence of any guidance or direction on the issueand the constant financial pressure, expressed byinterviewees, on the Trusts to make cutbacks onstaff and expenditure. Despite the lack of clearpolicy and procedures, some domestic violenceprofessionals praised the efforts of individual socialworkers and maintained that the problem wasgenerally not with individual Trust staff, but withthe system as a whole.

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Ill-health and disability“It is obviously rather humiliating to keep asking for things.” (Non-UK national interviewee)

9


ContextThe investigation found that a number of peoplewith no, or limited, access to public funds hadbecome homeless due to the onset of ill-health ordisability. In addition, it was frequently apparentthat although illness was not the primary cause ofhomelessness, in a number of cases, peoplebecame seriously ill as a result of their destitutionon becoming homeless. Perhaps more so inrelation to other homeless persons, those with no,or limited, access to public funds risk seriousdeterioration in their physical and mental health dueto the stresses associated with destitution, coupledwith the lack of assistance.

Human rights instrumentsInternational level

On an international level, there are many humanrights instruments that impact on housing andhealth. That the right to housing cannot be viewedin isolation from other rights is enunciated inGeneral Comment 4 of the Committee onEconomic, Social and Cultural Rights. This providesthat“[…] the right to housing is integrally linked toother human rights and to the fundamentalprinciples upon which the Covenant is premised”.Equally, General Comment 14, on the right to thehighest attainable standard of health, states:

[T]he right to health embraces a wide range of socio-economic factors that promote conditions in whichpeople can lead a healthy life, and extends to theunderlying determinants of health, such as [inter alia]housing.

It is clear, therefore, that the right to housing isinextricably linked with the right to health, and it isin the context of homelessness that the importanceof this link is most stark.

In outlining states’ general legal obligations inrelation to the right to health, the Committee onEconomic, Social and Cultural Rights states thatgovernments:

[…] must ensure equal access for all to the underlyingdeterminants of health, such as nutritiously safe foodand potable drinking water, basic sanitation andadequate housing and living conditions.147

The Committee also identifies violations of the rightto health, including retrogression. This type ofviolation may occur when states repeal or suspendlegislation which would be essential for the fullenjoyment of the right to health. In the currentcontext, insofar as homelessness impacts on healthand access to health care services, the repeal ofspecific aspects of housing legalisation, so as toexclude non-UK nationals from homelessnessassistance, may be viewed as such a retrogressivestep. General Comment 14 sets out additionaltypes of violations of the right to health, which areapplicable to the findings throughout thisinvestigation report. Examples of violations of theright to health include:

• violation of the obligation to respect:including the suspension of legislation or theadoption of laws or policies that interferewith the enjoyment of the right to health

• violation of the obligation to protect:including failure to take all necessarymeasures to safeguard persons within theirjurisdiction from infringements of the right tohealth by third parties

• violation of the obligation to fulfil:including insufficient expenditure ormisallocation of public resources resulting innon-enjoyment of the right to health byindividuals or groups, particularly thevulnerable or marginalised.

These violations must be read as referring to theprovision of health care services and other types ofservices, such as homelessness assistance, whichimpact on the enjoyment of the right to health.

More recently, the UK has ratified the UNConvention on the Rights of Persons with Disabilities(CRPD). Article 1 provides:

147 General Comment No 14, para 36.

depends, not on levels of need, but on thenationality or immigration status of the personrequiring assistance. However, when consideringlevels of entitlement, there is an importantdistinction between homelessness and socialsecurity support, on the one hand, and social careassistance, on the other. Regardless of nationalityor immigration status, social care assistance shouldbe provided if necessary to avoid breach of theindividual’s rights under the ECHR.

Therefore, for non-UK nationals who are ill andhomeless, or disabled and homeless, and excludedfrom Northern Ireland Housing Executive (NIHE) orSocial Security Agency (SSA) support, Trustassistance may potentially be provided. The Trustsmay assist those in need under Articles 7 and 15 ofthe Health and Personal Social Services (NorthernIreland) Order 1972, (the 1972 Order), provided thatthe following conditions are met:

• for persons subject to immigrationcontrol: in order to qualify for assistanceunder Article 7 and/or Article 15 of the 1972Order, individuals, subject to immigrationcontrol, must be ‘destitute plus’. This meansthat they must have additional needs thathave not arisen solely due to destitution. Ingeneral, social care providers must satisfythemselves that the individual has needsabove and beyond being destitute. Thosewith illness and/or disability have needsbeyond destitution and, therefore, even ifsubject to immigration control, can beconsidered for support under Article 7 and/orArticle 15.

• for EEA nationals, refused asylumseekers, those with refugee status inanother EEA state, and undocumentedpeople: assistance under Articles 7 and/or15 of the 1972 Order can be provided iffailure to do so would result in a breach of

Persons with disabilities include those who havelong-term physical, mental, intellectual or sensoryimpairments which in interaction with various barriersmay hinder their full and effective participation insociety on an equal basis with others.

In addition, Article 17 provides that “every personwith disabilities has a right to respect for his or herphysical and mental integrity on an equal basis withothers”. It is the Commission’s view that the rightto respect for physical and mental integrity cannotbe met where a person with disability is homelessand prevented from accessing homelessnesssupport and welfare benefits.

Domestic level

On a regional level, the European Convention onHuman Rights (ECHR) provides an essentialframework to assess the human rights implicationsof a policy of no recourse to public funds incircumstances where the applicant is homeless andhas ill-health or disability. Although there is noexplicit reference to housing or health within theECHR, the jurisprudence of the European Court ofHuman Rights has established that issues relatingto housing and health or disability may form a keycomponent of other rights contained within theConvention. For the purposes of this chapter, thefollowing ECHR rights are relevant: Article 2 (rightto life), Article 3 (freedom from inhuman anddegrading treatment) and Article 8 (right to privateand family life).148

Local legislative contextIn Northern Ireland, the legislative landscape issimilar to that of England and Wales. Therefore, asdiscussed elsewhere in this report, immigration lawrelating to asylum seekers, and other people fromabroad, amends housing and social securitylegislation, so as to exclude certain non-UKnationals from homelessness services and socialsecurity benefits. Often the extent of exclusion


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148 See: R (on the application of Bernard) v London Borough of Enfield [2002] EWHC 2282 Admin. The domestic courts held that the failure by a local authority to respond toan assessment of the applicant’s housing needs amounted to a breach of Article 8. Although maintaining that Article 8 of the ECHR does not require the State to provideeveryone with a home, the court confirmed that the state may be required to take positive steps to ensure respect for private and family life within the context of housingand disability.

• an inclination within the NIHE case files todiscount alcohol misuse as an indicator ofmental ill-health when assessing priorityneed.

The priority need criteria refer to “a person who isvulnerable as a result of old age, mental illness, orhandicap or physical disability or other specialreason”.149 While this does not refer explicitly tophysical ill-health, the Commission is of the viewthat homeless people with physical illness shouldbe considered for priority need within the catch-allcategory, “other special reason”. Although mentalillness is specifically categorised as priority need,the NIHE should provide more training on how toidentify alcohol misuse as a potential indicator ofunderlying mental ill-health or as establishingpriority need under “other special reason”. Inparticular, based on the information uncovered aspart this investigation, it would appear that moreneeds to be done to raise awareness in relation toalcohol misuse and its association with mentalillness.

Of the 16 applicants identified by the investigatorsas vulnerable due to ill-health and /or disability, fivewere ‘rough sleepers’ and nine were in temporaryaccommodation. All of the rough sleepers wererefused assistance because they did not meetHome Office worker registration requirements.Four had never registered their work; one hadregistered but, due to illness, had more than a30-day gap in his worker registration certificate. Ofthe nine individuals in temporary accommodation,three were refused assistance. For two, the reasonfor refusal was that they had more than a 30-daybreak in their worker registration certificate and, inone case, the applicant was deemed intentionallyhomelessness on account of leavingaccommodation abroad. It was not apparent thatany of these applicants (the five people sleepingrough or the three people in temporaryaccommodation) had been referred to the relevantTrust, even though they could have been assessed

Convention rights or rights under the ECTreaty. As stated elsewhere in this report, itis the Commission’s view that, if a person isdestitute and unable to access any level ofsupport, Trusts may be able to assist underthis provision.

Article 7 of the 1972 Order provides that theDepartment of Health and Social Services shallmake arrangements for the care and aftercare ofindividuals with illness. Article 15 states that thedepartment can provide facilities, including theprovision of residential care or accommodation, inorder to discharge its duties in relation to “personsin need”. Assistance under Article 15 may be givenin kind or, in exceptional circumstances, in cash,provided that the Department has regard to theindividual’s eligibility for receiving assistance fromother statutory bodies.

FindingsExtent of illness or disability among homelessnon-UK nationals


For the purposes of this investigation, all instancesof illness, disability and persistent alcohol misusewere considered as indicators of vulnerability.Following from this, on review of the NorthernIreland Housing Executive (NIHE) case files, 16adults who had made a homeless application wereidentified by the investigators as vulnerable due toillness or disability. In contrast, based on theinformation available from a reading of case files,the NIHE granted priority need in only half of these16 cases. The disparity between the investigators’assessments of vulnerability, and NIHE decisions onpriority need, was most likely due to two issues:

• a tendency within the NIHE case files todisregard illness, as opposed to disability, forthe purposes of granting priority need, and


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149 Article 5(1)(c) of the Housing (Northern Ireland) Order 1988.

detailed information was provided to theinvestigation in relation to people with illness duringfieldwork interviews with Trust staff. Theinvestigators also received one anonymised casestudy in relation to a client with mental illness, andwere invited to observe a pre-discharge caseconference concerning an individual who had beenhospitalised due to mental ill-health. In allinstances, Trusts were providing some level ofsupport, ranging from an isolated offer ofemergency support, to ongoing day-to-dayaccommodation and subsistence. Thisdemonstrates that for people with illness ordisability, as long as the Trusts were made aware ofthe case, they have been able to support non-UKnationals who have been excluded fromhomelessness support and welfare benefits. This,in itself, reinforces the importance, for othergovernment agencies, of pursuing an appropriateonward referral.

The response from government agencies

As outlined above, in order to avoid breach of theindividual’s rights under the ECHR, Trusts may beable to provide help with subsistence andaccommodation using Articles 7 or 15 of the 1972Order. As already stated, the Commission is of theview that this basic level of assistance isunsatisfactory coming from a developed state suchas the UK. Nevertheless, the availability of thisbasic level of support was at times misunderstoodby the each of the government agencies.

It was not apparent that government agencies hadfull understanding of how domestic legislation,specifically the 1972 Order, might be used to helphomeless non-UK nationals with illness or disability.While the investigators encountered examples ofgood practice by individual staff, some of whom diduse the legislation appropriately, at no stage did theinvestigators find, or receive, guidance from any ofthe government agencies on this issue. Further,guidance from Trusts, the agency responsible for

for help under the Health and Personal SocialServices (Northern Ireland) Order 1972. This isbecause the information recorded in the case fileswas not sufficient to enable the investigators todetermine if a referral had been made.


From a review of Social Security Agency (SSA)case files, the investigators found that 29 out of124 cases related to a claim for Income Supportdue to illness (Income Support: incapacity). Ofthese, 16 claims were allowed and 13 disallowed.In the majority, the reasons for disallowance relatedto various legislative barriers to benefit entitlementfor persons from abroad. Therefore, eight wererequired to be on the Home Office’s WorkerRegistration Scheme (WRS). Although all eightapplicants were on the scheme, only one personwas on for more than 12 months. Another person,an A2 national, failed to meet worker authorisationrequirements; another was an EU national student,deemed not self-sufficient; and three others werefound not to be “workers” within the meaning of EUlaw. Applications for incapacity-based IncomeSupport are founded on a claim by the applicantthat she or he has some form of illness. As statedelsewhere in this report, if an applicant is foundineligible for benefit as a person from abroad, theyshould be directed to the relevant Health and SocialCare Trust so that they can be assessed forassistance. This is even more important where theapplicant is presenting with illness. However, dueto the lack of this type of information in SSA casefiles, it was not possible to tell if onward referralsto Trusts had been made.

The Trusts

Of the ten Trust case files reviewed, almost allinvolved some level of illness or disability. Thisincluded children and adults with physical disability,including epilepsy and heart defects; mental illness,in particular, drug and alcohol addiction; physicalillness; and work related injury.150 In addition,


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150 See: Chapter 4 for more detailed information on work related injury.

find innovative ways to ensure that people werenot left destitute and without any form of help. Asone interviewee explained:

“I have made partnerships up that we didn’t have, wehad to try to go around or circumvent, or directly dosomething because, like, a man in front of me talkingor writing poems about they throw soil down on top ofmy grave and all that, it is just drawing wee picturesof crosses and coffins, you know, and ‘I want to seesomebody’; and they say ‘right send him to yourdoctor’ and your doctor will make an appointment inthe Mater [Hospital].” (Voluntary organisationinterviewee)

While voluntary organisations felt they could help inindividual cases, they also identified systemicproblems that required urgent attention fromgovernment agencies. As one intervieweeexplained: “There is no structure and it is with thesesystemic issues that organisations like [us] can’t help.With mental health and addiction, people are at crisispoint”.

Finally, it was apparent that in various cases ofill-health and disability, the state agencies actuallysignposted these vulnerable individuals tocharitable organisations for help. As one voluntaryorganisation explained:

“A women and her son spent several days in A and Ebefore the social worker paid a taxi from the hospitalto [us] and [we] do not have accommodation. [We]worked with them for two days but couldn’t getaccommodation. [We] managed to get one night in ahostel but lost them after this. There was no follow-up from the Trust and no one knows where they went.The son was 17 and, because he was with his mother,it was a grey area in terms of whether or not the Trusthad a duty to support.” (Voluntary organisationinterviewee)

Once again, as in other areas of this report, theburden is going to voluntary organisations. Whilevoluntary organisations have a crucial role to play in

providing assistance under the 1972 Order, did notappear to exist. The absence of guidance wasevident in the anxieties expressed by Trust staff asthey tried to balance a sense of financialresponsibility against a duty of care to the client:

“This is someone who came to Northern Ireland towork and became unwell in a longer-term way, andhas given up work and we have provided a service, avery basic service just to maintain, I suppose, thewellbeing of the person in the interim and that isongoing. And a family member is going to fly toNorthern Ireland shortly to assist in terms of thisperson coming home. So this person, to ourknowledge, doesn’t have entitlement in terms of theircitizenship to any service but we need to maintain theperson safely and well until they get other support ormake other arrangements to go home […]. Now, ifthis situation was to run on for a year or six months, ortwo years, I don’t really know what the Trust’s positionwill be, given the fact that we know it is an acuteillness, disabling condition, and that there arearrangements in place for the person to return back totheir own country.” (Trust interviewee)

A similar dilemma was evident among the NIHEstaff. At times, they wished to assist but could notfind the means to do so. In one particular case,when contact was made with the local Trust to askfor help, there was no response:

“I probably phoned them and they just popped mefrom one team to another and through to sensoryimpairment team and others, and the only thing theycan assist with is hearing aids and finding out, youknow, that end of things. That is really not what heneeds…” (NIHE interviewee)

Investigators found that, in practice, assistancecame from voluntary and charitable organisations,rather than from government agencies. Manyvoluntary organisations faced the decision-makingdilemma of either assisting seriously ill anddestitute individuals or adhering strictly to theirfunding criteria. Others admitted that they would


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terms of providing support and assistance, in theabsence of appropriate protocols and officialreferral mechanisms, the Government should notseek to discharge its duty of care, where such aduty exists, by signposting ‘ineligible’ individuals tovoluntary organisations for help.

The risks of ‘rough sleeping’

Homelessness, in particular ‘rough sleeping’, can bea direct cause of ill-health. This can occur becauseof the harsh environment on the street, whichplaces individuals at risk of serious physical illnessdue to cold weather conditions. The following is anextract from an interview with a homeless non-UKnational, who had been sleeping on the streets,without access to accommodation, for severalmonths:

Case study: A8 nationalGary had travelled to Northern Ireland fromone of the A8 accession states. He camewith friends to find work. When they firstarrived, they did not know what to do andwere unable to find accommodation. Garyexplained that, initially, they slept on thestreets for about five nights. During thistime, the police searched them. Althoughthe police brought Gary and his friends to avoluntary organisation, the experience ofbeing searched in the street washumiliating:

“We didn’t have any accommodation, wewere about five days sleeping outside andthe police checked us and then theybrought us here. They wanted us to showthem all the things that we have. Maybethey thought we were stealing orsomething. The problem is, it happened incity centre; they asked us to show themeverything in front of everyone. It felt bad,like we were thieves or something. It is nota good feeling.”

Gary went on to explain that the policecontacted a local day centre which providedsome food and a sleeping bag. BecauseGary did not have a National Insurancenumber or worker registration, he wasunable to stay in hostel accommodation:“The problem is we don’t have NINO. I slept ina hostel one day and they told me I couldn’tsleep there anymore so I can’t go back there”.

Gary felt he had no option but to sleep onthe streets. He did this for two monthsduring the cold weather period. Heexplained:

“I was on streets for two months and then Iended up in hospital with lung infection,asthma and heart problems [arrhythmia].Because I was sleeping outside, I was coldand it was raining during the night and theytook me to hospital.”

Gary was so ill that he remained in hospitalfor two months for treatment. However,during his time in hospital no one talked tohim about his situation or addressed the factthe he was homeless:

“When I came out of hospital they did notfind me anywhere to stay. They asked mewhere would I go after hospital and I toldthem [day centre]. I told the doctor therethat I do not have any accommodation. Idon’t speak English very well and in thehospital they didn’t understand me verywell. There was no interpreter other thanon admission to see about TB and theydidn’t do anything about accommodation.”

Gary states that the Trust was not contactedand, while an interpreter was used to gatherinformation regarding Gary’s immediatehealth, interpreting was not made availableto discuss his care on discharge. Gary wenton to say that he was still sleeping on the

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streets at night. During the daytime, heattends a local voluntary organisation wherehe can get some heat and food:

“Since then [hospital], I am here from 8am,I arrive, and at 10pm I leave. I don’t havemoney to stay in a hostel. It is £6.50 anight and I don’t have that money.”

Although sleeping rough, Gary continues tolook for work.

Gary’s case illustrates the very serious risks that‘rough sleeping’ presents for the individual’s stateof physical health. Although in Gary’s case, he wasadmitted to hospital for treatment, there was nofollow-up on discharge. This means that he wasdischarged, without assistance, to the samesituation that had caused his ill-health in the firstplace. While Gary is likely to be excluded fromhomelessness assistance and social securitybenefits, the Trust may have been able to providesome level of support under Article 7 or Article15 of the 1972 Order.

While ‘rough sleeping’ presents numerous risks tothe individual’s physical health, those excludedfrom homeless support are also at risk of seriousmental illness. A recent policy statement by theEuropean Federation of National OrganisationsWorking with the Homeless (FEANTSA) submits:

The living conditions and social exclusion of homelesspeople is very stressful and the stress is undoubtedlyamong the primary factors that cause depression,schizophrenia, personality disorders and anxietydisorders to be common.151

The World Health Organisation’s report on thehealth care needs of homeless people also notesthe high rate of mental ill-health among this group,and the high incidence of dual diagnosis, that is,people diagnosed with mental illness and other

substance dependence. It also highlights the risksof early onset of major depression and alcoholmisuse for this highly vulnerable group.152 Fromthis investigation, it would appear thathomelessness perpetuated mental illness, which inturn perpetuated homelessness. Further, mentalill-health and homelessness was exacerbated byexclusion from homelessness services. In the end,this often meant that longer-term intervention wasrequired. As one voluntary organisationinterviewee explained: “I suspect that the destitutionexasperates existing mental health problems andtrauma”.

All of this illustrates the very real and detrimentalimpact on the health and wellbeing of individualsexcluded from homelessness assistance due toimmigration status, who are often forced to sleeprough on the street. Further, it demonstrates how astrategy of exclusion is counterproductive from theGovernment’s point of view: those that may haverequired only limited, short-term homelessnessassistance and welfare support instead needlonger-term Trust care due to serious physicaland/or mental illness.

Homelessness caused by a period of illness

In several instances, the investigators wereprovided with examples of illness leading tohomelessness and potential destitution. In thistype of case, depending on the length of illness, theindividual was generally disentitled tohomelessness support and benefits. The followinginterview extract demonstrates this:

“You know, the number of people that have lost jobsthrough illness. They have been, you know, theresponsibility of the hospital and the Trust for that longthat by the time they are trying to engage back intothe Housing Executive again, that period of absencefrom work is again making them ineligible.” (NIHEinterviewee)

151 European Federation of National Organisations Working with the Homeless(2005) FEANTSA Policy Statement: Meeting the Health Needs of HomelessPeople, FEANTSA, Brussels.

152 Wright NMJ and Tompkins CNE (2005) How Can Health Care SystemsEffectively Deal with the Major Health Care Needs of Homeless People?,World Health Organisation Regional Office for Europe, Copenhagen, p 11.

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In effect, immigration rules, such as the WorkerRegistration Scheme (WRS), operate so as toinclude people when they are economically activeand exclude them when they are out of work,which is when they are most vulnerable and inneed of assistance. In particular, the investigatorsfound that the onset of illness had negativeconsequences for families where, often, they weredependent on the employment of one individual.As explained by a Trust interviewee:

“We have on occasion come across that – where youhave workers that come over here and maybe thehusband who is the worker, for whatever reason isn’table to work. There is a case where a man had beenworking and had started taking seizures, and so hewas off work for quite a long time and we had toassist with that situation […] Some families do findthemselves quite isolated even within thosecommunities.”

For families, problems resulting from illness arose ina variety of ways. In some instances, as illustratedabove, the main worker became ill and, as a result,was unable to provide an income for the family. Inother cases, a dependent family member wasdiagnosed with illness, leaving those on whosework the family member depended with thedilemma of whether they could take on a caringrole, as the following interview extract shows:

“The one that came to us was a referral from hospitalbecause this lady had fallen, as I said, fractured bothher arms, which meant in terms of her personal care -her feeding herself – she could not do any of that.She was living with her daughter and son-in-law butthey were working and their tenancy and theirlivelihood depended on them being able to work,because they didn’t have any entitlement to benefits[…].” (Trust interviewee)

The right to health involves not only primary healthcare but also appropriate facilities and services topromote recovery. This applies in relation to thetype of case referred to above, where family

members are unable to access benefits that wouldallow them to care for dependents. It also appliesin relation to persons with ill-health, who are forcedback to work because they are unable to accessassistance. In some cases, depending on theillness, returning early to work constitutes a seriousrisk to the person’s wellbeing. In the followingextract, the interviewee explains how an individual,diagnosed with breast cancer, returned to workbecause she could not access social securitybenefits:

“And a new referral, I only got it on Friday, a girl from[A8 State]. And the referral is coming from [voluntaryorganisation] to ask for assistance to see if we can getany financial assistance for her because she hasbreast cancer and apparently she has gone back towork too early because of benefit uptake. And, asI say, [voluntary organisation] have done all they canand they are asking us to be involved because we canaccess other grants, if somebody has had cancer and,as I say, I only got the referral on Friday and I have tofollow it through, but I think that sounds like somebodyhas returned to work too early.” (Trust interviewee)

These examples show the negative consequencesof exclusion from homelessness assistance andwelfare benefits for individuals, and their familymembers, where they have had a period of illness.Moreover, as with all findings discussed in thischapter, there is an absence of guidance for socialworkers to follow when responding to this issue.

Disability

Physical disability

During the investigation, information was receivedabout the experiences of individuals with physicaldisability, who were excluded from accessing publicfunds. This information was provided in variousways, through interviews with government agencystaff, review of case files and contacts withvoluntary organisations. The investigators also metdisabled, homeless people, who agreed to sharetheir experiences for the purpose of the

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investigation. It was apparent that people withphysical disability faced significant hardship and,while it would be expected that there would beadditional help for disabled, homeless persons,often this was not the case.

In a number of instances, government agencieswere alerted to an individual case because theperson concerned was admitted to hospital. Inmore than one case, the Trust accepted some levelof care provision for individuals with long-termphysical injury as the result of serious accidents.However, the following case study reveals thatwhile Trusts provided support, the extent andnature of assistance was perhaps not alwaysappropriate:

Case study: physical disabilitySam arrived in Northern Ireland in 2005. Hesettled into work and lived with his brotherand sister-in-law. Shortly after four months,he was involved as a passenger in a seriouscar accident. Following the accident, Samspent 11 months in hospital, two months inemergency care and nine in rehabilitation.During this time, Sam was offered threeoptions for accommodation in residentialcare. He eventually chose to stay in anursing home outside Belfast. When askedhow he felt about the nursing homeaccommodation, Sam replied: “I am herenow and it is really hard to tell if it would bebetter for me if I was some place else. I amhere now, it is difficult to say”.

Sam said that he was in contact with theNIHE through his lawyer and through theTrust. Initially, “it was really hard to actuallyget them to even register me to basicallyaccept my application, accept my files”.Sam explained that because he wasself-employed at the time, the situation wascompletely new and the NIHE did not knowhow to respond: “It took a lot of time and

effort to get them to even anticipate theapplication to sort of take the paperwork”.After intervention from his lawyer,clarification on Sam’s immigration statuswas provided by the Home Office. Followingthis, the NIHE agreed, in principle, to acceptSam’s application.

When the investigators met Sam on 25September 2008, he was in receipt ofDisability Living Allowance. However, thecase had to go all the way to formal tribunalhearing before he was granted entitlement.

Sam found that, in general, the Trust hadbeen helpful. It paid for his accommodationin the nursing home and for his attendanceat an IT course. Sam stated that he wantsto work; he is aiming to get an ITqualification: “I want to demonstrate that I canbe a useful member of society”. However,Sam felt low at times: “They [the Trust] aretrying their best but everything takes them a lotof time. It goes very slowly. In October, it willbe two years here”. Sam revealed that hemet with the Trust about once every fourmonths. He met with them on the morningof his interview with the Commission’sinvestigators: “The meeting that we hadtoday, I got notified last night. I prefer threeday notices sort of thing to get prepared for allof this, get organised properly”. Sam statedthat because of the short notice his lawyerwas not able to attend the meeting: “It isprobably not possible for the lawyer to planthings on such short notice”.

The investigators asked Sam if there wasanything that stood out about the processthat he had been through. Sam replied:

“Basically, it is rather humiliating to keepasking for things. If you need somethingyou have to ask all the time and it is a bit…certain things are obvious and evident and

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being made to ask for those things all thetime is obviously rather upsetting.”

Sam explained that the staff at the nursinghome were very nice, but he was tired ofbeing somewhere that is not his own home.When asked how he coped as a young manliving in a nursing home environment, Samsaid that when he first arrived, he couldn’timagine staying for any length of time butnow, “most time I spend in my room with thecomputer”.

At the time of writing, Sam was still in anursing home and the SSA stated: “Thefacts of the case are currently before theSocial Security Commissioner to establish ifthe claimant has a right to reside in the UK”.The SSA further stated that he is currently inreceipt of Incapacity Benefit.

This case study potentially raises several humanrights concerns, including under Article 8 of theECHR (right to private life), insofar as theaccommodation provided may be regarded asinappropriate for Sam. This is because a personwith a disability might benefit more fromcommunity care which promotes independentliving, rather than placement in residential nursingcare. In addition, the placement of younger peoplein an environment tailored for older people withvarying degrees of ill-health is far from ideal. TheConvention on the Rights of Persons with Disabilities,which the UK ratified in June 2009, provides a legalframework for a rights based approach towardsindependent living. At the time of interviewingSam, neither the Trust nor the NIHE had offeredsupport that would allow him to live independentlyin the community.

Mental illness

During this investigation, significant concerns arosein relation to people with mental illness.Information was received about homeless non-UKnationals with varying degrees of mental ill-health.In many cases, mental illness was caused orexacerbated by the lack of public support. Thefollowing extract from an interview with Trust staffindicates the rapid deterioration in mental healthdue to withdrawal of working rights and exclusionfrom state support:

Interviewee 1: “One of our daddies was workingquite happily, making a living for hisfamily. They had nothing to do withsocial services [the Trust] butbecause he was going to bedeported, they stopped everything.The money was cut, everything, andso this man who was endeavouringto support his family…”

Interviewee 2: “And doing it very well!”

Interviewee 1: “Absolutely, didn’t need help fromanybody else. Because he receivedthis piece of paper that said… as oftoday, all stopped.”

Interviewee 2: “Yes, and she, the lady, developedmental health problems, thatbrought us into their lives.”

Often, following a period of care for mental illness,a break in employment meant that homelessnesswas inevitable because the individual was no longerentitled to access public support. As a result,accessing accommodation and benefits hadbecome a new and challenging part of the workloadfor many mental health social workers:

“Accommodation is probably a big issue if they areadmitted to acute admissions. Sometimes they lose,you know, a lot of the them are in casual work andthen they don’t have security of going back to thatand, therefore, that does affect – if they don’t sustain

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the 12 months’ employment and we would have anumber then who aren’t eligible for Housing Benefitand a lot of our accommodation is supported housing,which relies on Housing Benefit eligibility to claim.”(Trust interviewee)

In this type of scenario, the investigators found thatthe level of response from the Trusts varied. Whilein some instances, individuals were provided withhospital care and help with accommodation andaftercare support, in other cases, intervention wasmore limited. From review of case files andinterviews, the investigators were unable todiscover any clear reasons for this difference inapproach. Indeed, during interview, Trust staffdisputed among themselves the extent to whichthey could provide accommodation and financialsupport. The following dialogue is representative ofthis:

Interviewee 1: “I think we could possibly state itagain. We provide the health careand the social care type service; it isa needs based service. Someonewith a mental health problem willnot be turned away because theyare a foreign national. They willreceive the services that we offer toour residents, as well as…”

Interviewee 2: “But to be fair, mental healthservices, for example, do notprovide housing, do not providebenefits assistance; it provides...”

Interviewee 1: “It will provide that in the context ofa mental health issue, if necessary,if it is assessed as being necessarybut it’s not if you have got a mentalhealth problem; then we will helpyou with your housing.”

However, there was no guidance for Trusts onwhen accommodation might be provided as part ofa mental health issue, or when mental illness isviewed solely as a mental health problem. During

one interview with a female non-UK national, it wasrevealed that, although she was currentlyaccommodated in hospital for mental healthreasons, support on discharge was doubtful. Thefollowing summary presents her situation.

Case study: mental ill-healthJane is a non-EEA national who came toNorthern Ireland in mid-2005. She camehere to work and stayed initially with afriend. Jane later found accommodation tiedto her employment. However, in 2008, aftera period of illness, Jane became seriouslyunwell: “Well before, different voices talk tome and when I am here [in Northern Ireland]different voices come to talk to me”. With thehelp of a voluntary organisation, Jane triedto access a GP but was unable to do so. Hermental health deteriorated to such an extentthat the voluntary organisation felt therewas no option other than to appeal to theDirector of the Health and Social ServicesTrust for help. By the time Jane wasassessed, she was so ill she was detainedunder mental health legislation and admittedto hospital.

While talking with the investigators, Janerevealed: “I still live in hospital” and expectedto be there for “maybe one week more”.When asked if she would get help withfinding accommodation, Jane replied: “Idon’t know, I don’t know can I go to ask for aplace for accommodation or not, I neverknow”. Jane has been very happy with hertreatment in hospital: “The doctor look afterme so good I don’t need anything”. But whenasked if anyone has talked to her about whatshe will do on discharge, Jane explained:“No. No social worker, only doctor, no socialworker, only nursing aid and doctor visit”.

Jane stated that she will most likely seekhelp from friends and acquaintances and

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that she hoped for a job arranged through afriend, and that “the boss will give me a roomfor living”. In truth, however, she was reallyworried: “I have no job, no accommodation,no food”.

Towards the end of the interview, Janerevealed that she borrowed a large sum ofmoney from the people who promised tobring her to Northern Ireland.

Jane desperately wants to remain here butbecause of the debt, she stated:

“I am lost. As long as I pay back the debtsfrom home I will feel better. I still have oneyear and six months – that is enough [topay the debt]”.

Jane hoped that she can remain well, butonce she leaves hospital she is uncertain:“Now I feel much better but it is really, really aworry”.

In this type of case, in order to fulfil the right tohealth, Jane ought to have a period of care ondischarge from hospital. As indicated, she willseek work. However, returning to work withoutaftercare will risk relapse and further deteriorationof her mental health. This was confirmed during apre-discharge case conference, regarding a non-UKnational ineligible for homelessness support wherehealth care professionals recognised theimportance of aftercare support for persons withmental ill-health. The case related to a patient whohad been detained under mental health legislation.The patient lost entitlement to housing and welfarebenefits because the Worker RegistrationCertificate had lapsed. While health care staffoffered medical assistance, there were concernsthat, on discharge, the patient would not receive

help with accommodation and subsistence. As onemedical professional stated: “We can build atherapeutic relationship but this is much harder whenyou’re not sure what phone box they’re sleeping in”.In this instance, Trust staff indicated that theywould put forward a request for up to six weekspost-discharge support. However, at the time ofthe case conference, support from the Trust wasnot guaranteed.

In several instances, the investigators wereinformed that a lack of homelessness assistancehad resulted in mental ill-health to an extentrequiring detention under mental health legislation.This led the investigators to question if, potentially,lack of assistance could lead to otherwiseavoidable detention, or even delayed discharge,under mental health legislation.

Arrangements for non-UK nationals to leave

As already explained, Trust assistance under the1972 Order may be provided if necessary to avoidbreach of the individual’s rights under the ECHR or,in the case of those subject to immigration control,if they are ‘destitute plus’.153 However, for EEAnationals, people with refugee status in anotherEEA state, or those “unlawfully in the UK”, theWithholding and Withdrawal of Support (TravelAssistance and Temporary Accommodation)Regulations 2002 provides that Trusts may makearrangements to enable such a person to leave theUK. The explanatory note states that theRegulations “empower local authorities to makearrangements for travel and temporaryaccommodation in respect of certain categories ofpersons who are ineligible for certain benefits byvirtue of paragraph 1 of Schedule 3 to theNationality, Immigration and Asylum Act 2002.”154 Iftravel arrangements are made, accommodationpending travel can be provided as follows:155

153 Paragraph 3 to Schedule 3 of the Nationality, Immigration and Asylum Act 2002; Article 7 and Article 15 of the 1972 Order as amended by Section 121 of the Immigrationand Asylum Act 1999.

154 In Northern Ireland, “local authority” means Health and Social Services Trusts, the Boards, the Department of Health, Social Services and Public Safety, or the NorthernIreland Housing Executive (See: Para 17 of Schedule 3 to the Nationality, Immigration, and Asylum Act 2002).

155 Note that, if applicable, travel arrangements for refused asylum seekers are made through the UK Border Agency and not Social Services Trusts (see: Chapter 7 for moredetail in relation to failed asylum seekers).

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• for EEA nationals or those with refugeestatus in another EEA state:arrangements for accommodation pendingtravel can be made if the individualconcerned has with them a dependent child.

• for those “unlawfully in the UnitedKingdom”: arrangements foraccommodation pending travel can be madeif the individual has not failed to co-operatewith removal directions and if they have withthem a dependent child.

When making travel and accommodationarrangements, the legislation states that this mustbe done at the lowest practicable cost, and:

[…] may not include cash payments […] and must bemade in such a way as to prevent the obtaining ofservices or benefits other than those specified in thearrangements.

Although Trust interviewees were unaware of theexistence of this legislation, in a number of cases,because of the lack of public assistance, theyreported offering help to individuals to enable themto return to their country of origin, for example:

“In mental health, we have discussed cases. Someweren’t eligible to access housing accommodationand, some, we have looked to pay for convalescentcare by booking someone into a B and B and givingthem accommodation for a number of weeks post-discharge, or discussing with them do they want to goback to their home country and actually facilitating airfares.” (Trust interviewee)

This type of assistance, often termed ‘repatriation’by interviewees, ranged from one-off payments tocover the cost of flights, to more intensiveassistance, such as facilitating links withdestination hospitals to ensure a co-ordinatedapproach on return. The process of return to theindividual’s home country also took place for peoplewith physical disability. This occurred in one casewhere the person concerned had an accidental

injury resulting in long-term disability, as outlinedbelow:

“A scenario is - I had a young fellow, a 21-year-old,had only been here three weeks; he was from, I thinkit is [A8 State]; I will have to check up. But anyway,he had been here three weeks, hadn’t signed up tothe work, done anything like that, just worked, hada car accident, spinal injuries […] and I had beenliaising with the social workers because we weretalking about he might have to go into some type ofcare and he would have no benefits. We wouldmaybe have to pick up the tab for that, so I wasthinking that [he] might have to go into some type ofnursing care and he wouldn’t be able to pay ourminimum contribution; he wouldn’t be able to pay anyand that was fairly…. We were unsure of what wasgoing to happen and I know [voluntary organisation]and all were involved in that. Now the end result ofhim was his father came home, came over here andactually did that young fella’s job for a while and thenhe went home. But I don’t know what would havehappened if he didn’t choose to go home; I am unsureabout that.” (Trust interviewee)

Although the investigators uncovered variousexamples of Trusts returning people to the countryof origin, they did not appear to follow any guidanceor clear decision-making processes, on when orhow this should occur. In some instances, socialwork staff developed links with hospitals in thecountry of origin; in other cases, as in the caseexample above, no such links were made.Although not forcing return in the same way asdeportation, given the lack of options for support inNorthern Ireland, ‘repatriation’ in these particularcircumstances is not entirely voluntary. In thiscontext, it is important that Trusts take into accountall the circumstances of the case and are reassuredthat, by returning to the country of origin, theindividual is not subject to treatment or lack oftreatment in a way risking potential violation oftheir human rights. In addition, before offeringtravel, Trusts should also assess the implications

The Commission has a number of concernsregarding current arrangements for travel andaccommodation:

1. The legislation regarding travelarrangements for non-UK nationals is ofserious concern. It fails to acknowledgeadequately the fact that return may notalways be an appropriate option. Asdemonstrated by this investigation, it isunsatisfactory to arrange for an individual toleave the UK if they are ill or disabled and noother arrangements have been maderegarding their care in the destinationcountry.

2. Where travel may be appropriate, thelegislation permits accommodation pendingtravel in unduly limited circumstances, thatis, only if the individual concerned has withthem dependent children. In addition, itprevents assistance in cash which, asalready highlighted in this report, isunsatisfactory, particularly if individuals mustrely on voucher support alone.157

3. While the legislation is unsatisfactory, Trustshave not issued any guidance to socialworkers to ensure direction or consistency intheir decision-making on this issue.

4. Consequently, the day-to-day approach ofsocial workers, while appropriate in terms ofthe instruction that they may receive frommanagers, risks being inconsistent. Inaddition, the response may even beinappropriate or unsuited to the individual’sneeds. As illustrated above, seriously ill ordisabled individuals have been returned tothe country of origin without anyarrangements as to their reception or care inthe home country.

for the individual’s right to private and family life(Article 8 of the ECHR) if the individual has family oran established way of life in Northern Ireland.156

Finally, voluntary organisations communicated tothe investigators that they had offered return tohome countries because there had been either noresponse, or limited help, from governmentagencies. Voluntary organisations stated that aftertrying without success to make a referral to mentalhealth services, the only option was to considerflights home:

“[A8 national] male with manic depression - He ranout of medication and the GP would not register himas he was seen as a tourist. The mental health teamwould not take a referral unless it came from a GP. Inthe end, the Embassy agreed to pay his flight home.”(Voluntary organisation interviewee)

However, voluntary organisation intervieweesexpressed concern about the eventual outcome forsuch individuals, which in most cases remainedunknown. As one interviewee explained:

“He was a vulnerable adult with alcohol dependency.The Housing Executive signposted to [us]. He decidedto return home. [We] tried to arrange support onreturn to [an A8 state] but were unable to do so.We’re not aware of outcome.” (Voluntary organisationinterviewee)


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156 It is not in all cases that return to country of origin will engage Convention rights and much depends on the circumstances of the case. However, see: R v Secretary ofState for the Home Department, ex parte Razgar [2004] UKHL 27. The House of Lords held by a majority of three to two that, taking into account the circumstances of thecase, to force return of the claimant to Germany under the Dublin 2 Convention could result in breach of his rights to private life under Article 8 of the ECHR. See also: D vUK (1997) Application No 146/1996/767/964, where return to St Kitts was held to be a breach of Article 3 of the ECHR. The applicant was in the final stages of AIDS andhad no prospect of treatment or family support in St Kitts.

157 See, in particular: Chapter 4 for a discussion regarding concerns about the use of vouchers for assistance.

established that incitement to, and acts of, racialdiscrimination, including acts of violence, must beprohibited and adequately addressed through thecriminal law.158 Therefore, investigation andprosecution of the perpetrators of racist acts formsa crucial part of the state’s duties toward victims ofsuch acts. Article 26 of the International Covenanton Civil and Political Rights (ICCPR) asserts thateveryone is equal before the law and entitled toequal protection by the law, without discrimination.However, the state has a much wider duty topromote and protect the human rights of victims ofracism which includes, but also extends beyond,criminal investigation.159 Therefore, victims ofracial incidents are entitled to basic human rightsprotection, including the right to life (Article 6 ofthe ICCPR), the right to be free from inhuman anddegrading treatment (Article 7) and the right toprivate and family life (Article 17). Potentially, eachof these rights may entitle the victim of a racialattack to services beyond the criminal justicesystem, such as health care, social assistance andhelp with re-housing.

Also relevant is the Durban Declaration andProgramme of Action Against Racism, RacialDiscrimination, Xenophobia and Related Intolerance(the Durban Declaration). This sets out specificactions for states parties to combat racism. TheCommission notes that despite the Government’scommitment to do so, it has so far failed toproduce a National Action Plan to combat racism,as agreed following the signing of the DurbanDeclaration in 2001. According to Part II of theDurban Declaration, states are urged:

[…] to establish and implement without delaynational policies and action plans to combat racism,racial discrimination, xenophobia and relatedintolerance, including their gender-basedmanifestations.

IntroductionIt became apparent, during the investigation, that anumber of non-UK nationals had become homeless,or were threatened with homelessness, as a resultof racial attacks. In this circumstance, entitlementto homelessness assistance from the NorthernIreland Housing Executive (NIHE) depended oneligibility as a person from abroad. However, evenif eligible, the level of response from the NIHE alsodepended on whether the incident in question wasclassed as “intimidation”. During the fieldwork, theinvestigation sought to establish thedecision-making process and the day-to-dayresponse, where racial intimidation forms the basisfor a homelessness claim. This chapter focuses onthe findings in relation to applicants claiminghomelessness on grounds of racial intimidation.

Human rights instrumentsInternational level

In signing up to the Universal Declaration of HumanRights (UDHR), the UK has asserted itscommitment to the principle that “everyone has theright to life, liberty and security of person” (Article3). International human rights standards, inparticular, the International Convention on theElimination of All Forms of Racial Discrimination(ICERD), expand upon the meaning of the right tosecurity of person and spell out its importance inrelation to states’ obligations in combating racialdiscrimination. Article 5 of ICERD provides thatstates parties must guarantee everyone freedomfrom racial discrimination in the enjoyment of “theright to security of person and protection by theState against violence or bodily harm, whetherinflicted by government officials or by any individualgroup or institution”.

States’ obligations in addressing racialdiscrimination include positive duties requiring anappropriate response when racist incidents occur.International human rights standards have long


10Racial intimidation“It needs to be bricks through windows – an attack on property or person. You’re supposed totake the rest of it on the chin.” (Voluntary organisation interviewee)

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158 See, for example: Article 4 of ICERD and the Durban Declaration and Programme of Action Against Racism, Racial Discrimination, Xenophobia and Related Intolerance (theDurban Declaration), Part II, para 84.

159 See, generally: ICERD and the Durban Declaration.

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The Commission suggests that, had such a planbeen enacted, many of the issues identified in thischapter might have been addressed.160 It shouldbe noted that the Durban Declaration was subjectto review at an international conference in April2009, with the aim of re-evaluating the goals set in2001. In its outcome document, the DurbanReview Conference reiterated its criticism oflegislation and policy motivated by racism:

[The Durban Review Conference] condemnslegislation, policies and practices based on racism,racial discrimination, xenophobia and relatedintolerance which are incompatible with democracy,transparent and accountable governance.

Finally, in terms of international human rightsinstruments, all state agencies involved inresponding to racial incidents are required to havedue regard to their own conduct and, in particular,to Article 2 of the ICERD, which states:

Each State Party undertakes to engage in no act orpractice of racial discrimination against persons,groups of persons or institutions and to ensure that allpublic authorities and public institutions, national andlocal, shall act in conformity with this obligation.

Regional level

European Community (EC) law is relevant forEuropean Union (EU) nationals travelling to NorthernIreland in exercise of their ‘free movement’rights.161 The following overview of EC law, as itrelates to racial discrimination, isnot exhaustive but intended to highlight some of themain provisions. Article 12 of the EC Treatyprohibits discrimination on grounds of nationalityand Article 13 provides for non-discrimination ongrounds of sex, racial or ethnic origin, religion orbelief, disability, age or sexual orientation. Together,Articles 12 and 13 provide a mandate to the EUCouncil of Ministers to combat discrimination. As aresult, Council Directive 2000/43/EC, of 29 June

2000, was enacted under Article 13. This isparticularly relevant for the Government’s responseto racial intimidation in terms of social assistanceand homelessness provision. It provides for theprinciple of equal treatment between individualsirrespective of racial or ethnic origin and prohibitsdiscrimination in the areas of inter alia socialprotection and social security, and social benefits.

In addition to the Council of Ministers, there is alsothe European Commission against Racism andIntolerance, which:

[...] is entrusted with the task of combating racism,racial discrimination, xenophobia, antisemitism andintolerance in greater Europe from the perspective ofthe protection of human rights, in the light of theEuropean Convention on Human Rights, its additionalprotocols and related case-law. (Article 1, ECRstatute)

Through its examination of state parties’ reports,the Commission makes recommendations to stateson how to better combat, and respond to, racism.

Domestic level

On a domestic level, the relevant law can be foundin the Human Rights Act 1998 and the rightscontained within the European Convention on HumanRights (ECHR). In terms of racial incidents,numerous human rights provisions are significant,including Article 2 (right to life), Article 3 (freedomfrom torture, inhuman and degrading treatment),Article 6 (right to a fair hearing in determination ofcivil rights) and Article 8 (right to private and familylife). Article 14 is also important as it prohibitsdiscrimination in the enjoyment of Conventionrights.

State responsibility in relation to Convention rightsexists even if a violation occurs due to the actionsof a private individual. In relation to Article 3 of theECHR, the European Court of Human Rights hasstated:

160 The Commission acknowledges OFMdFM’s Race Equality Strategy. However, it is of the opinion that this Strategy is not a satisfactory response to the commitments madein Durban in 2001. The Commission also notes that no action has been taken, by the Government, in relation to this Strategy for a number of years.

161 Free movement of persons is provided for under Article 39 of the EC Treaty.

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The obligation imposed on High Contracting Partiesunder Article 1 of the Convention to secure toeveryone within their jurisdiction the rights andfreedoms defined in the Convention, taken togetherwith Article 3, requires States to take measuresdesigned to ensure that individuals within theirjurisdiction are not subjected to torture or inhuman ordegrading treatment, including such ill-treatmentadministered by private individuals […] Stateresponsibility may therefore be engaged where theframework of law fails to provide adequate protection[] or where the authorities fail to take reasonablesteps to avoid a risk of ill-treatment about which theyknew or ought to have known.162

In the context of racial attacks, state agencies aretherefore required to take appropriate steps toensure the individual’s protection. Where domesticlegislation prohibits such an approach, the statemay be liable under the Convention.

Local legislative and policy contextThe ordinary criminal law in Northern Irelandprovides general protection to the public fromviolence and intimidation. Specific protection onthe grounds of race can be found in the RaceRelations (Northern Ireland) Order 1997, whichprohibits discrimination on grounds of colour, race,nationality or ethnic or national origin.163 Inaddition, the Criminal Justice (No 2) (NorthernIreland) Order 2004 provides for aggravatedsentencing in relation to ‘hate crimes’. Thesesentencing provisions apply to indictable offencesthat are motivated by hate which is based on thevictim’s race, religion, sexual orientation, ordisability.164 However, beyond the criminal law,other agencies, such as the Northern IrelandHousing Executive (NIHE), have a role incontributing to the prevention of, and response to,‘hate crime’. In relation to racially motivated

attacks, the NIHE’s Race Relations Policy cites‘Racial harassment and intimidation’ as a mainpolicy theme. Through its policy, the NIHEundertakes to carry out a number of actions,including maintaining an interagency protocol forthe provision of services to victims and developingprocedures for NIHE staff to deal effectively withracial incidents.165

For the NIHE, the day-to-day approach tohomelessness claims based on intimidation isprovided for in the statutory Housing SelectionScheme developed by the Northern IrelandExecutive and approved by the Department forSocial Development (DSD). Therefore, underArticle 22 of the Housing (Northern Ireland) Order1981, the NIHE must submit to the DSD a schemefor determining how it will allocate tenancies tosuccessful applicants for its accommodation. Thisscheme is known as the ‘Housing SelectionScheme’ (HSS). The most recent revision of theScheme was made available in July 2007.

Similar schemes are operated by local councils inEngland and Wales, although the precise details ofeach may differ. In Northern Ireland, allocation ofhousing is on a points based system. The numberof points awarded to an applicant determines her orhis place on the social housing waiting list and thespeed with which they are allocatedaccommodation. The scheme is applicable to ‘fullduty applicants’ (FDA), that is, applicants found tobe homeless within the meaning of Article 10 of theHousing (Northern Ireland) Order 1988. In general,applicants with FDA status are awarded 70 pointsand placed at the fore of the waiting list. However,the HSS also provides for ‘intimidation points’amounting to a maximum and exceptional award of200 points. Rule 23 of the HSS Rules sets out thecircumstances in which an applicant is entitled tointimidation points:

162 Mahmut Kaya v Turkey (Application no 22535/93) 28 March 2000, para 115.

163 The Race Relations (Northern Ireland) Order 1997 was amended by the RaceRelations Order (Amendment) Regulations (Northern Ireland) 2003 toimplement requirements of the EU Race Directive 2003/43/EC. Theseamendments give people greater protection from unlawful racialdiscrimination and harassment on the grounds of race, ethnic or nationalorigins.

164 Article 2 of the Criminal Justice (No 2) (Northern Ireland) Order 2004.

165 Northern Ireland Housing Executive (2006) Race Relations Policy, p 21.

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(1) The Applicant’s home has been destroyed orseriously damaged (by explosion, fire or othermeans) as a result of a terrorist, racial orsectarian attack, or because of an attackmotivated by hostility because of anindividual’s disability or sexual orientation or asa result of an attack by a person who fallswithin the scope of the Housing Executive’sstatutory powers to address neighbour hoodnuisance or other similar forms of anti-socialbehaviour.

(2) The Applicant cannot reasonably be expectedto live, or to resume living in his/ her home,because, if he or she were to do so, therewould, in the opinion of the Designated Officer,be a serious and imminent risk that theApplicant, or one or more of the Applicant’shousehold, would be killed or seriously injuredas a result of terrorist, racial or sectarianattack, or an attack which is motivated byhostility because of an individual’s disability orsexual orientation or as a result of an attack bya person who falls within the scope of theHousing Executive’s statutory powers toaddress neighbourhood nuisance or othersimilar forms of anti-social behaviour.

In terms of the NIHE approach to homeless claimsbased on actual, or fear of, racial attack, Rule 23establishes that where the individual’s home isdestroyed or seriously damaged as a result of aracial attack, or where they are at risk of death orserious injury due to racial attack, then, if eligible,she or he is entitled to the full award of 200intimidation points. Consequently, thecategorisation of an attack and/or property damageas racially motivated may be important forestablishing intimidation points. However,following an amendment to Rule 23, the applicantmay also be awarded 200 points if the intimidationis without a particular motive but perpetrated bysomeone who falls within the NIHE duty to addressneighbourhood nuisance or anti-social behaviour.

This means that, potentially, an individual canestablish homelessness on grounds of intimidationdue to neighbourhood nuisance or anti-socialbehaviour.

Findings‘Ineligible’ victims

Despite the serious nature of intimidation and thepotential risk to life, eligibility rules in relation toindividuals from abroad continue to apply.Therefore, ‘ineligible’ non-UK nationals will bedenied homelessness assistance even if theyestablish that they have been subject to, or are atfurther risk of, serious injury due to racial attack:

“If someone reports an incident to the NIHE, they areadvised to report to the police. But they have to beeligible to be considered for homelessness in the firstplace. If they have no recourse then they aren’teligible.” (NIHE interviewee)

During the investigation, interviewees from thegovernment agencies and the voluntary sectorstated that racial attacks had formed the basis for asignificant number of homeless applications madeby non-UK nationals. In general, when presentedwith such a homeless claim, the investigation foundthat NIHE staff endeavoured to respond as bestthey could within the confines of the homelessnesslegislation. Indeed, the investigation uncoveredexamples of individual staff undertakingconsiderable responsibility to ensure some level ofsupport for the applicant. Nevertheless,interviewees expressed frustration where eligibilityrules prevented them from providing directassistance:

“…it does frustrate one sometimes. […] and I willalways remember, the chief inspector rang and said…‘look, petrol bomb through the window, we wouldneed to get her out’ and we came in to help her andshe had no access to public funds and she wasn’teligible and one felt very frustrated that one wasn’table to provide, you know, temporary accommodationor that. Now it ended up, I think we referred her

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through [voluntary organisation] and they were ablethrough someone like [a charitable organisation] toput her up. But if one believes through human rights,the right to a home in those type of circumstancesshould be there… We hadn’t the authority to provideit, so it can been frustrating in that rare case thatcomes along […] That is a personal view.”(NIHE interviewee)

On consideration of the NIHE case files, theinvestigators found there were 12 applicants (17.9per cent overall) making a homelessness claim ongrounds of racially motivated intimidation. Oneapplicant was refused outright due to the ‘norecourse to public funds’ rule and, while five wererefused on the NIHE decision that “you haveaccommodation and it is reasonable for you tooccupy”, at least one of these applicants wouldhave had to satisfy the Worker RegistrationScheme (WRS) before establishing entitlement toassistance. The following case study is anoverview of an ineligible homelessness applicationon grounds of racial intimidation.

Case study: victim of racial attackJoe is a non-EEA national who arrived inNorthern Ireland in mid-2005. He had beenin full-time employment since that date.After more than a year living in Belfast, Joe’shome was attacked repeatedly over a periodof two nights. Joe reported this to thePolice Service of Northern Ireland (PSNI) andpresented to the NIHE for help. Joe believedthat the attacks were racially motivated.

On further inquiry, the NIHE received a reportfrom the PSNI. This categorised the attacksas racial intimidation. However, in theinterim, Joe provided his passport to theNIHE, which stated ‘no recourse to publicfunds’. Consequently, a final decision letterwas issued to Joe explaining that he wasnot eligible for help under the homelessnesslegislation. The case was closed.

In addition to examples from the NIHE case files,the investigators were provided with numerouscase studies by voluntary organisations, outliningthe types of circumstances in which they hadadvised and/or supported homeless non-UKnationals. Out of these, 18 case examples relatedto some form of racial intimidation. In one case,despite considerable efforts by the PSNI and thevoluntary organisation concerned, funds for onlytwo nights’ accommodation could be found. As aresult, it was reported that the family felt they hadno option but to leave Northern Ireland and returnto the country of origin. A further example wasconveyed to the investigators by two voluntaryorganisations. In this case, the family arrived inNorthern Ireland from one of the A8 states.Although the male member of the family had beenworking, he did not have 12 months’ registeredwork, as required by the WRS. The adult membersof the family were physically attacked in theirhome.

Case study: victims of racial attackThere was a family with twins in and aroundseven months old. They were attending toget help with a compensation claimfollowing a racial incident.

At the initial meetings they stated thateverything was ok and going well. Twoweeks later during a meeting regardingcompensation, the key worker asked again ifeverything was ok. At this point, the familyhappened to say ‘yes but we are leaving andretuning home next week’. They had beenattacked in their home and gone to hostelaccommodation but quickly lost this andwere placed in another hostel. In addition,the male family member had lost his job.The Trust said it would support the family forseven days, or so, but then they must eitherpay or go home. They decided to go homewithout seeking further help.

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The Commission notes that, in this case, the statehas a heightened duty of protection because of thepresence of children. In particular, the Commissionrefers to Article 6 of the United Nations’ Conventionon the Rights of the Child (CRC) which states thatevery child has the inherent right to life, and toArticle 2 which prohibits discrimination on groundsof race or national origin in the enjoyment of thisright. In this respect, the Commission suggeststhat the limited response from the state, asillustrated in the case study, may be open tochallenge under human rights legislation.

The lack of options for individuals facing potentiallylife-threatening intimidation causes seriousconcern. This is particularly worrying in all cases,but even more so where the case involves children.If a homelessness claim is successful on grounds ofintimidation but refused due to ineligibility, thereshould be some level of homelessness assistanceand welfare support available. As one intervieweeexplained, while individual staff members arewilling to help, the absence of guidance permittingstaff to provide assistance is worrying:

“And then the local neighbours attacked it [home] andshe had to leave that […] And, meanwhile, we weretrying to get her into private rental and tried to sortthat out and I think she then went into private rental,in the end. At no time, did we say, ‘go on to thestreet’ but, again, I felt there should be some sort ofclear demarcation here or some clear guidelines, wellwhere you go with that case there. I felt I should beable to phone some sort of agency who could give mehelp and assistance, who I could direct to thatparticular group in Belfast and say, ‘look, this is thecircumstances, we need help here, this person needssomewhere to stay and needs money to do it’; there isnobody.” (NIHE interviewee)

The fact that ‘there is nobody’ to assist when an‘ineligible’ non-UK national applicant hasexperienced a serious racial attack is an affront tobasic human rights and ought to be addressed.

Attacks on ‘rough sleepers’

Through the investigation, it became apparent thatwhile individuals had been subject to racialintimidation in their homes, racial attacks had alsooccurred on the street. One voluntary organisationinterviewee explained that all ‘rough sleepers’ areat risk of physical assault, but this is particularly sofor homeless non-UK nationals. Those whoexperience racial violence on the street are notentitled to intimidation points for the purposes oftheir homelessness claim:

“In order to be placed on the waiting list, an addressis needed. Therefore, those with NFA [No FixedAbode] can’t get on. We can’t accept applicationsfrom rough sleepers, although a hostel or B and Bcould be used as an address. We can’t assess pointswithout an address.” (NIHE interviewee)

Nevertheless, intimidation is a reality for migrantswho are forced to live on the streets. As oneinterviewee from the NIHE explained: “There ispeople had their own throats slit, it is dangerous atnight”. Although the intimidation is not aimed atremoving the individual from a particular address, itis intended to intimidate migrants from roughsleeping in areas used by other homeless personswho feel that it is ‘their’ space. Given the risksinvolved, it is essential that the victims of theseattacks are able to access homelessnessassistance.

Attitude of staff towards claims of racialattacks

The definition of a racial incident has been madeclear in the Macpherson report following the inquiryinto the circumstances surrounding the murder ofStephen Lawrence.166 Therefore, a racial incidentis any incident perceived to be racial by the victimor by any other person. As indicated by the NIHEduring interview, it adopts this definition for thepurposes of its homelessness inquiries. Indeed, forthe most part, the investigators found that staff

166 Macpherson, Sir W (1999) The Stephen Lawrence Inquiry, Cm 4262-I.

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were extremely helpful and willing to assist thoseclaiming homelessness on the grounds that theyhad been subject to, or were at risk of, racialattack. Often, staff would make extensive effortsto find alternative accommodation. As thefollowing interview extract demonstrates:

“Well, basically, you sort of know yourself if somebodyis from a foreign country and, say it is intimidation,they are saying they are being harassed because theyare from [abroad] or whatever. Automatically, that isa red flag [..]. You know automatically to advisepeople, ‘look, if you are being intimidated, you are notunder any obligation to stay here. We can alwaysoffer you temporary accommodation’. You wouldknow sort of instinctively if, say, those sort ofscenarios.” (NIHE interviewee)

While most staff recognised the potential forserious danger to the applicant, others were moresceptical about the basis for intimidation claims. Inparticular, in a small minority of interviews, therewas a tendency to doubt the racial nature of anattack. This is in spite of the fact that theMcPherson report clearly states that a racialincident is based on the victim’s perception of theincident as being motivated by race. This reflectedan element of denial about the racial motivation forincidents reported by non-UK nationals:

“You know, it is a fine line sometimes and,unfortunately, maybe you know, certainly the policerecordings of things, this is being treated as a hatecrime… I don’t want to get too political, but youknow, simply because it was that person from abroad[…] I mean, if I get burgled in [a named area] and thepolice will do everything they can! ...if a foreignperson gets burgled in [same named area], sure thatis a hate crime […] It is because of that newlegislation, I think they are more likely to label it likethat.” (NIHE interviewee)

Recognition of the racial context of a particular actis an essential part of ensuring the human rights ofthe victim. In addition, the denial of racism canlead to serious misjudgement as to the risksassociated with the acts alleged. As Kelly states:

[…] disbelief leads to denial - the refusal toacknowledge that people of minority communities arebeing picked out commonly, persistently, evensystematically, for harassment. The disbelief alsoleads to ignorance about the connections betweeneveryday harassment and attacks that sometimesresult in murder.167

It is notable that one of the causal factors for theserious deficiencies in the police investigationregarding the murder of Stephen Lawrence was the“substantial number of officers of junior rank [who]would not accept that the murder of StephenLawrence was simply and solely ‘raciallymotivated’”.168 The Macpherson report andrecommendations relate primarily to the policeinvestigation and prosecution of racially motivatedcrime, but there are of course lessons to be learnedfor other public sector bodies. As the report states,the “[…] conclusions as to Police Services shouldnot lead to complacency in other institutions andorganisations”.169

The Commission stresses that, in most instances,the attitude of the NIHE staff toward racial incidentswas appropriate and vigilant. However, it isimportant to highlight inconsistencies in approach.In practice, the denial of the racial element of anattack may mean that the victim does not establishintimidation points under the Housing SelectionScheme.170 Instead, she or he may be awarded‘priority need’ as a person who has been subject toviolence and is at further risk.171 However, in thistype of instance, while the victim may receive ‘fullduty status’ she or he does not benefit from thesame level of response as those who establish

167 Kelly E (2000) ‘Racism, police and courts in Scotland’, Scottish Affairs, No30, winter 2000, pp 141-159.

168 Macpherson report, para 6.21.

169 Above, para 46.27.

170 Although it should be noted that, depending on the circumstances, thevictim may receive intimidation points if the intimidation falls under theHousing Executive’s powers to address statutory nuisance.

171 Article 5(1)(e) of the Housing (Northern Ireland) Order 1988.

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intimidation points and receive the higher award of200 points on the Housing Selection Scheme.

Racial intimidation versus neighbourhoodharassment

Property related crime is often viewed as a lessserious form of offending behaviour. However, asthis investigation shows, property related incidentscan be perceived as a serious form of racialintimidation. In addition, research shows that whileracial violence occurs in various guises, all forms ofracial attacks are serious:

Racial violence is not only manifested as brutal violentacts against the individual, but emerges in the form ofeveryday occurrences, which have the potential forviolence, and which have a steady and negativeimpact on vulnerable individuals and communities.172

Based on review of case files and interviews withstaff, the investigation uncovered a difference inpractice in terms of whether a racial incident wasclassed as intimidation, as opposed to a lessserious form of attack, known as ‘neighbourhoodharassment’. As one interviewee explained,categorisation of the incident as neighbourhoodharassment rather than intimidation may mean thatthe applicant is not awarded intimidation points andperhaps not even ‘full duty status’:

“We can’t give intimidation points unless it’sconfirmed by the police or a solicitor. No intimidationpoints, no homeless as neighbourhood harassment isnot a priority need.” (NIHE interviewee)

Based on review of case files, the investigatorsfound that racial incidents classed as ‘intimidation’in one office might be deemed ‘neighbourhoodharassment’ in another. The Commissionappreciates that the question of whether anincident amounts to intimidation or should, moreappropriately, be deemed harassment, will notalways be clear-cut. As senior staff explained,establishing that an incident amounts tointimidation depends on “the level of danger, threat

and risk of injury”. However, one voluntaryorganisation explained this in a rather differentmanner:

“It needs to be bricks through windows – an attack onproperty or person. You’re supposed to take the restof it on the chin. But there is always a history thatgoes with this, for example, six or seven racialincidents, car damaged, et cetera. It is often seen asanti-social behaviour […].” (Voluntary organisationinterviewee)

Based on case file review, the investigators found adifference in approach depending on the districtoffice in which the homelessness claim wasreceived. Although demonstrated in a fewinstances only, if this were to be repeated it wouldbe of serious concern. The Commission cannotoffer an explanation for the difference and, ratherthan speculate, will demonstrate this apparentinconsistency through the following case studies.

Case studies: intimidation –unsuccessful applicationsExample 1

Female applicant with one child. Theapplicant presented as homeless on thegrounds of racial intimidation: the carwindows were smashed while the car wasparked at the house; perpetrator wasphysically aggressive to applicant; applicantleft the property over the weekend for fearof further intimidation and presented to NIHEfor help with temporary accommodation.

Outcome: NIHE decided that the applicantwas not homeless or threatened withhomelessness because the applicant alreadyhad accommodation and it was reasonableto expect them to continue to occupy it.However, three days after the applicant’sfirst contact with NIHE, PSNI recommendedthat the applicant was provided withtemporary accommodation.

172 Bowling B and Phillips C (2002) in Goodey J (2007) ‘Racist violence in Europe: challenges for official data collection’, Ethnic and Racial Studies, 30(4) July 2007, p 571.

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Following this, temporary accommodationwas provided.

Example 2

Single male applicant. The applicantpresented as homeless on grounds of racialintimidation: the front and back windows ofhis property were smashed; this wasreported to and recorded by the PSNI. Asupporting letter was sent to the NIHE fromthe PSNI. This detailed the current incidentand two previous attacks, one of whichresulted in scarring to the applicant’s face.

Outcome: The NIHE decided that theapplicant was not homeless or threatenedwith homelessness, on the basis that theapplicant already had accommodation and itwas reasonable for him to continue tooccupy it.

Example 3

Male applicant with family (wife pregnantand two children). The applicant presentedas homeless because he had beenthreatened with a knife and his wife hadreceived verbal abuse. There was asupporting letter from the PSNI and a letterfrom the Health and Social Care Trust.

Outcome: The NIHE refused the applicationon the grounds that the applicant hadaccommodation and it was reasonable forhim to occupy it. It was indicated that whilethere was antisocial behaviour in the area,there was not enough evidence to establisha threat against the family.

By contrast, claims of racial attacks were morereadily accepted as intimidation in other offices, asthe following examples show.

Case studies: intimidation – successfulapplicationsExample 1

Male applicant with family (wife pregnantand two children). Applicant claimedhomelessness because his car had beensubject to three separate attacks and on thelast occasion it was burnt out. This wasconfirmed by a voluntary organisation andthe applicant reported the incident to thePSNI.

Outcome: Temporary accommodation wasprovided; homelessness applicationsuccessful due to intimidation.

Example 2

Female applicant with one child. Theapplicant presented as homeless due to athreat from the local community, which wasfollowed by men calling to the house and abroken window. The applicant’s claim wassupported by a letter from a voluntaryorganisation and from the PSNI.

Outcome: Temporary accommodationoffered. The homelessness application wassuccessful on grounds of intimidation.

Example 3

Male applicant with family (wife and twochildren). The applicant presented ashomeless due to overcrowding and racialintimidation. There had been racial graffiti atthe house. There was a supporting letterfrom the PSNI and a health visitor.

Outcome: Homelessness application wassuccessful on grounds of intimidation.

It is important to recognise that housing officersoften adopt a prompt response to homelessnessclaims involving racial attack. However, theexamples provide strong evidence that this was notalways the case. The Commission believes that

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greater levels of training and awareness-raising arerequired to ensure a consistent approach across allNIHE district offices, in response to claims of racialintimidation.

The Commission notes that the NIHE has immenseexperience in dealing with homelessness claims ongrounds of intimidation due to the particularcircumstances of Northern Ireland. As onemanager explained:

“The policy is borne out of the unique situation in NIand was originally confined to serious risks to do withparamilitaries and the situation prevailing to thecircumstances of Northern Ireland […] Over theyears, this evolved and widened out to the extentwhere now the range of causes of intimidation aremuch wider.” (NIHE interviewee)

This bestows upon the NIHE a level of experiencethat is perhaps unique among housing providers inthe UK. It is, however, important to ensure that‘traditional’ forms of intimidation are not prioritisedor automatically accepted as serious, while other‘newer’ forms of intimidation, such as racialattacks, require greater levels of evidence or moreserious threats.

In contrast to the case examples provided above,the following case study illustrates the willingnessof the NIHE staff to recognise the dangers ofintimidation where the reason is suspected to besectarianism.

Case study: sectarian intimidationDuring interview, an NIHE intervieweerecalled a homelessness claim by anon-UK national, based on intimidation. The NIHE believed that the threats wereaimed at the victim due to a perceptionregarding her religion:

Q: “And in that instance then, was thereany physical or criminal damage?”

A: “There was no physical attacks or nocriminal damage, verbal abuse or… Ithink she was going out in the street,she was being shouted at. Now, theproblem is that if it gets out, ifsomething is going on and people know,it gets around or a Saturday night; therewas too much drink in, you wouldn’tknow what would happen in some ofthese locations.”

Q: “So, you didn’t need any policeevidence in order to be able to moveher?”

A: “Well, possibly we asked for it. I haveto say our office is quite good, if that isthe right way to put it. If there is abenefit of doubt, we tend to go with theapplicant. We will look at the file to seewhether the police came in. I think itwas something, the police had saidverbally that they were able to confirmthat there was something going on andwe gave the benefit of the doubt, whichwe would normally do and, again, notjust for foreign nationals […] You don’talways wait for the confirmationbecause it takes sometimes ages andages, you know.”

Q: “And that woman would have gotintimidation points then?”

A: “She would have got the full lot.”

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The incidents discussed in this example, namelyverbal threats, were accepted as intimidation.Based on case files, the investigators found thatsimilar and, indeed, greater levels of threat werenot always accepted as amounting to intimidationwhere the motivation alleged was one of race. TheCommission urges the NIHE to build upon itslearning in identifying the risks associated withintimidation, and to apply this experience to allapplications regardless of the perceived motive forintimidation.

The role of racial motivation

As explained by a senior staff member, whendetermining a claim based on intimidation, “Thereare two things: the first is the level of danger, threatand risk of injury and the second is the source orcause of the intimidation”. However, it was furtherexplained that the motivation for intimidation is onlya secondary matter. The primary basis for a claimbased on intimidation is the seriousness of theincident and, provided the risk of intimidation isconfirmed, the applicant’s claim for intimidationshould be accepted regardless of motivation.Nevertheless, in interviews, it was not always clearthat this approach was understood by staff. In asmall number of instances, racial motivation wasinterpreted as the determining factor, as thefollowing interviewee explained:

“There was an incident a couple of months ago.Someone’s car was set on fire – it was a foreignnational but PSNI couldn’t say if it was racial.” (NIHEinterviewee)

In another instance, the interviewee felt that racialmotivation was necessary, and also whether or notan attack had been racial could only be confirmedby the police:

“If there is any violence at all, we ask for PSNIreports. [...] If no PSNI confirmation, we normallyneed an independent body, for example, Women’sAid, but if it’s racial we need a police report.” (NIHEinterviewee)

However, this is in contrast to the HousingExecutive’s policy. Therefore, as discussed above,if considering racial motivation, the NIHE acceptsand endorses the definition of racial incident asrecommended by the Macpherson report. Duringinterviews, the Commission’s investigators askedsenior staff how the NIHE decides if an incident hasbeen racially motivated. The following responsewas provided:

“If the person perceives it as racial, we accept that –it is the same for homophobia and all other grounds.The issue or causation is not the main consideration, itis the level of risk. We had a local case of a foreignnational in flats and the kids in the area weredamaging all cars in the street – he perceived this asracial and we accepted it.” (NIHE interviewee)

The Commission recognises that all statutoryagencies have a role to play in tackling racism.However, with regard to the issue of homelessness,the NIHE’s input is critically important. Theinvestigation shows that while the NIHE adopts theMacpherson definition of a racial incident, thisdefinition is not adopted universally by all staff, oracross all district offices. The Commissionunderstands that the NIHE may require contactwith the PSNI to establish whether, or the extent towhich, an attack has taken place. However,contrary to the views expressed by a minority ofstaff, the NIHE should not require PSNI verificationto determine that an attack has been racial. Inaddition, staff should be clear that the main basisfor awarding intimidation points is the seriousnessof the threat and/or attack and, while motivation isrelevant, it is only a secondary factor.

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Conclusions and recommendations11


IntroductionAs revealed in the preceding chapters of thisreport, the Commission had access to a largeamount of material during this investigation. Thisenabled the consideration of various forms ofevidence which expose the serious human rightsconcerns for homeless non-UK nationals who are atrisk of destitution, but excluded from accessingpublic funds. Many of the report’s findings arerelated to legislative exclusions, which preventnon-UK nationals from receiving homelessnessassistance and welfare benefits. Consequently, theCommission makes several recommendationsaimed at the urgent amendment of primarylegislation. As much of this legislation relates toimmigration, it is an ‘excepted’ matter (notdevolved to the Northern Ireland Executive) and,therefore, requires UK-wide amendments.However, this should not detract from the fact thatthe local Executive has a role to play in bringingabout this legislative change. Pending these widerlegislative amendments, the Commission is of theview that other aspects of the recommendationscan be locally administrated. In the interim period,the Commission recommends that the threegovernment agencies, forming the focus of thisinvestigation, make changes to the way in whichthey work to ensure better protection of the rightsof homeless non-UK nationals.

The Commission’s recommendations are organisedunder three main headings:

1. Legislative amendments

2. Government agency practices, and

3. Specific areas of concern

• exploitation and UK immigration rules

• asylum seekers and refugees

• domestic violence

• ill-health and disability, and

• racial intimidation

The Commission acknowledges that, as with therealisation of many human rights, a number ofthese recommendations may have costimplications. However, it is likely that access tohomelessness assistance will prove more costeffective because, at present, the way in which thesystem operates is often counterproductive. Inmany cases, access to homelessness assistancewould prevent the need to rely on othergovernment agencies, such as Health and SocialCare Trusts and/or voluntary organisations foremergency intervention and support. In addition,exclusion from homelessness services can result in,or exacerbate, illness which, in the end, requireslong-term, intensive care and assistance. Theinvestigation has provided various examples ofindividuals who would have required only limited,short-term homelessness assistance instead ofneeding longer-term support. Moreover, theCommission is of the view that there is limitedrationale for prohibiting any individual fromexercising the right to work. In particular, theinvestigation finds that prohibiting work for asylumseekers, and refused asylum seekers, leads to asituation of destitution and, ultimately, reliance onpublic funds, which is necessary to avoid a breachof the European Convention on Human Rights (ECHR).All of this suggests that access to the basic meansof shelter and subsistence would producelong-term benefits that far outweigh the immediatemonetary costs.

In the current context, the Commission reminds theGovernment of the Committee on Economic, Socialand Cultural Rights’ General Comment 4, on theright to adequate housing. It states: “theobligations under the Covenant continue to applyand are perhaps more pertinent during times ofeconomic contraction.”173 This is particularly so forthose living in unfavourable conditions, whichshould include destitute persons whether they haveUK nationality or a right of residence.

173 General Comment No 4, para 11.

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Finally, at the time of writing this report, theGovernment was examined by the United Nations’Committee on Economic Social and Cultural Rights.A number of the concluding observations arerelevant to the findings in this report including theCommittee’s recommendation that the Government“take into consideration the Homelessness ScotlandAct 2003 as best practice, especially its provisionrelating to the right to housing as an enforceableright”.174 The background to the Act comes fromthe Homelessness Taskforce, which recommendedthe following:

[…] over time, the rights possessed by thoseassessed as being in priority need under the 1987 Actshould be extended to all those assessed as homelessand that therefore the priority need distinction shouldbe eliminated. This will however need to be managedand phased so that accommodation and services aremade available to those who do not currently comewithin the definition of priority need and so that thosewho are in the greatest need are notdisadvantaged.175

The Act requires local housing authorities inScotland to progressively realise the right tohousing for all persons assessed as homelessthrough abolition of the ‘priority need’ test by 2012.This means that, from such day as the ScottishMinisters appoint, the local authority shall securethat permanent accommodation becomes availablefor those who are found homeless or threatenedwith homelessness whether or not they havepriority need. Since progressive realisation is a keyconcept in economic and social rights, theCommission welcomes the Committee’srecommendation and urges that the UKgovernment consider a framework for responding tohomelessness similar to that in the Homelessness(Scotland) Act 2003.

Legislative amendmentsAt present, the legislation governing access tohomelessness services for non-UK nationals isunduly restrictive. The findings from thisinvestigation confirm that it is disproportionatelyweighted towards the Government’s aims ofregulating migration, paying little regard to theconsequences for individual rights. As a result, thelegislation excludes homeless and potentiallydestitute persons from homelessness assistanceand welfare benefits, and permits statutory supportin very limited circumstances only if necessary toavoid a breach of ECHR rights. This represents anegative approach to human rights, taking heedonly when it is likely that basic rights are at seriousrisk of being, or have already been, violated.Instead, the UK should adopt a more positiveapproach in line with international human rightsstandards, encouraging state agencies to promoterights by ensuring access to homelessness servicesin a way that ensures destitution does not arise inthe first place. Therefore, legislation should beamended to reflect the Government’s commitmentsunder domestic and international human rightsinstruments. In light of this, the Commission makesthe following recommendation:

1. Regardless of nationality or immigrationstatus, the Government should ensure thateveryone within the territory of the UK hasaccess to an adequate standard of livingsufficient for that person and her or hisdependents. Public authorities must takeall appropriate measures, includinglegislative measures, to the maximum oftheir available resources, with a view toachieving progressively the full realisationof this right. No one shall be allowed to fallinto destitution.

174 Concluding Observations of the Committee on Economic, Social and CulturalRights (2009) The United Kingdom of Great Britain and Northern Ireland, theCrown Dependencies and the Overseas Dependent Territories, 22 May 2009,para 29.

175 The Homelessness Taskforce (2002) Helping Homeless People: An ActionPlan for Prevention and Effective Response, Scottish Executive, para 27.Available: http://www.scotland.gov.uk/library3/society/htff.pdf [17 July2009].

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The Commission is of the opinion that everyone hasthe right to adequate accommodation appropriateto their needs. In particular, the Commission makesthe following recommendations:

2. The Government should ensure thateveryone has access to appropriateemergency accommodation.

3. For the purposes of ensuringRecommendations 1 and 2, theGovernment should discontinue thetransitional arrangements relating to thenew A8 and A2 accession states, (theWorker Registration Scheme and WorkerAuthorisation arrangements) (see Chapter6).

4. In light of this report and the conclusionsarrived at by the European Committee ofSocial Rights, the Government shouldreview the current habitual residence test(see Chapter 5).

5. For the purposes of ensuringRecommendations 1 and 2, theGovernment should amend homelessnesslegislation so that those who are sleepingon the street, without any other means toaccess welfare benefits oraccommodation, are given ‘priority need’(within the meaning of the Housing(Northern Ireland) Order 1988) (see Chapter3).

6. Pending Recommendations 1 and 2, theGovernment should allow people who aresubject to immigration control to accesssocial assistance if it is likely that they willbecome destitute. They should not have toshow that they are ‘destitute plus’ (ascurrently required by Section 121 of theImmigration and Asylum Act 1999) (seeChapter 4).

7. Pending Recommendations 1 and 2, theGovernment should review Section 4 of theAsylum and Immigration Act 1999 to ensurethat refused asylum seekers are providedwith greater levels of access toaccommodation and financial support.

8. Pending Recommendations 1 and 2, theGovernment should amend homelessnesslegislation to ensure that family members,who are at present ‘ineligible’ non-UKnationals, can make a homelessnessapplication in their own names rather thanthe current practice, which requires theapplication to be submitted by the ‘eligible’partner (see Chapter 3).

9. Pending Recommendations 1 and 2, theGovernment should develop a fund that canbe accessed by relevant voluntaryorganisations which accommodate orotherwise support individuals who have no,or limited access to, public funds.

The Commission strongly believes that everyonehas a right to social security. In particular, theCommission makes the followingrecommendations:

10. Pending Recommendations 1 and 2, theGovernment should revise the eligibilitycriteria for a Crisis Loan payment in orderto provide assistance for non-UK nationalsfacing destitution (see Chapter 5).

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11. Pending Recommendations 1 and 2, theGovernment should amend the legislationpermitting travel arrangements for non-UKnationals to leave the UK. The legislationshould require ‘local authorities’ to considerthe implications of the travel arrangementsfor the individual’s rights, namely, her or hisrights under Article 8 (right to private andfamily life) and Article 3 (freedom frominhuman and degrading treatment) of theECHR. In addition, the legislation shouldallow accommodation pending travel for alldestitute persons whether or not they havewith them a dependent child. In order toensure the dignity of the individual, cashassistance should not be prohibited (seeChapter 9).

12. The Northern Ireland Assembly shouldensure implementation of clause 5 of theHousing (Amendment) Bill which providesfor a statutory right of review and appeal ofhomelessness decisions (see Chapter 3).

Government agency practicesMany of the investigation findings relating to theNorthern Ireland Housing Executive (NIHE), theTrusts, and the Social Security Agency (SSA) stemfrom the restrictions contained within domesticlegislation and, therefore, will not be adequatelyaddressed without the legislative amendments ascontained in Recommendations 1 to 12. However,even without legislative amendment, theCommission is of the view that there are alterationsthat each agency should make to ensure betterprotection of non-UK nationals’ rights. In thissection, the Commission outlinesrecommendations, some of which apply equally toall three government agencies and others that arespecific to each.

The Northern Ireland Housing Executive, theTrusts and the Social Security Agency

In order to ensure that, as the Human Rights Act1998 requires, the actions of the three relevantagencies are human rights compliant, theCommission makes the following recommendation:

13. All relevant staff across the three agenciesshould receive at least a basic level ofhuman rights training. This training shouldtake account of the Government’sobligations under domestic andinternational human rights instruments. Inparticular, human rights training shouldcover the applicability of human rightsstandards to homeless non-UK nationalswho are at risk of destitution (see Chapters3 to 5).

The Commission is strongly committed to theprinciple of non-discrimination, enshrined ininternational and domestic law, and makes thefollowing recommendations:

14. All relevant government agency staffshould receive anti-racism training that isevaluated and updated, and compliant withthe Macpherson report (see Chapters 3 to5).

15. All government agency staff, includingTrust staff, should be familiar with when,and how, to refer a homeless non-UKnational, who is excluded from accessinghomelessness assistance and welfarebenefits, to the relevant Health and SocialCare Trust for an assessment of her or hisentitlement to assistance (see Chapters 3to 5).

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The Commission believes that everyone has theright to access essential public services in alanguage and a medium that they understand. TheCommission makes the following recommendation:

16. Each of the three government agenciesshould use appropriately experienced andaccredited interpreters. Specially trainedinterpreters should be used in difficultcases, for instance, where the applicanthas complex needs. Unless it is anemergency, face-to-face interpretingservices should be offered. Governmentagencies should end the practice of usingchildren to interpret. In addition, thepractice of asking friends and familymembers to interpret without first offeringan interpreting service should end.Government agencies should make timeallowances where there are languagebarriers; in particular, consideration shouldbe given to providing extra time formeetings and/or interviews (see Chapters3 to 5).

International standards acknowledge the need forreasonableness. The Commission thereforerecognises that it is not possible to translate allcommunication letters between governmentagencies and non-UK nationals. However, theCommission makes the followingrecommendations:

17. The government agencies should includewithin each letter a standard statement,translated into several languages,explaining the purposes and urgency of theletter and how to contact the governmentagency for further information, explanationor a review of any decisions. In addition,government agencies should assess theextent to which certain letters, or partsthereof, can be standardised and thereforetranslated in advance (see Chapters 3 to5).

18. The government agencies should develop,agree and effectively disseminate reliableinteragency protocols. The protocolsshould identify any potential gaps in serviceprovision and ensure that, in allcircumstances, there is a referral route sothat a homeless non-UK national, who isexcluded from homelessness assistanceand welfare benefits, can be assessed toestablish if they are entitled to any otherform of support. Appropriate andformalised, referral arrangements should beincluded. In addition, the interagencyprotocols should outline the approach to beadopted for daytime and ‘after hours’services. Following on from this, thegovernment agencies should produce aninteragency guide for their staff, outliningoptions for assistance and referrals forhomeless non-UK nationals (see Chapters3 to 5).

As the report has shown, voluntary sectororganisations provide an invaluable source ofsupport for homeless non-UK nationals that shouldbe appropriately acknowledged and enabled tocontinue. However, the Commission makes thefollowing recommendation:

19. In responding to homeless non-UKnationals, government agencies shouldcontinue to engage with the voluntarysector. Where there is a statutory duty toassist, government agencies should notsignpost to voluntary organisations foraccommodation services without ensuringthat the organisation is provided withappropriate financial support.

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The Northern Ireland Housing Executive

The Commission makes the followingrecommendations (see Chapter 3):

20. Inquiries in relation to eligibility ought to beevidenced in writing in the specific sectionof the homelessness application form.Findings relating to ‘priority need’ shouldalways be recorded even if it is determinedthat the applicant is ineligible forhomelessness assistance.

21. The NIHE should develop human rightscompliant guidance, outlining thecircumstances in which havingaccommodation abroad can result in afinding that homelessness has beenintentional.

The Trusts

The Commission makes the followingrecommendations (see Chapter 4):

22. The Department for Health, Social Servicesand Public Safety should develop guidance,setting out the Trusts’ responsibilities tohomeless and potentially destitute non-UKnationals. The guidance should cover theTrusts’ responsibilities to children, familieswith children, and single adults.

23. At present, when Trusts decide to provideassistance to a homeless non-UK nationalunder the 1972 Order or under the Children(Northern Ireland) Order 1995, the amountdoes not appear to be based on a clearassessment of need. While it may not bepossible to set out minimum amounts, theTrust should develop guidance to ensurethat payments to families are based on aproper account of potential costs, forexample, accommodation, food, clothingand travel.

As well as the right to private and family life, theCommission is committed to the principle that inadoption, or any other child placement proceedings,the best interests of the child shall be theparamount consideration. Therefore, theCommission makes the following recommendation:

24. Children should not be removed from theirfamily, or threatened with removal, on thesole basis that those with parentalresponsibility are ineligible forhomelessness assistance and welfarebenefits.

In recognition of the right of every person to humandignity, the Commission makes the followingrecommendation:

25. The use of voucher support as the solemeans of support should end as soon as isfeasibly possible.

The Social Security Agency

The Commission notes that decision-makerscurrently receive written guidance on benefitlegislation and application. However, in order tobetter equip front line staff in their role as first pointof contact, the Commission makes the followingrecommendations (see Chapter 5):

26. All SSA staff should be issued with, andregularly trained, on an easy to read basicguide to the benefit legislation as it appliesto non-UK national applicants. In particular,SSA staff should receive guidance onreferral of applicants to the Social Fund andrecording thereof.

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27. Pending review of the habitual residencetest, in order to be able to demonstratethat the test has been applied consistently,SSA staff responsible for evidencegathering should be provided with astandard form to ensure that, in all cases,the same information is requested. Allcase files should contain an accuraterecord of how the decision on the habitualresidence test was arrived at.

Specific areas of concern (Chapters 6 to 10)

The investigation has provided detailed findings inrelation to the following specific areas of concern:exploitation, asylum seekers and refugees,domestic violence, ill-health and disability, andracial intimidation. As with the recommendationsfor each of the government agencies, many of thefindings regarding these specific areas of concernwill not be addressed without the legislativeamendments as contained in Recommendations1 to 12. Nevertheless, in the meantime, theCommission considers that there are a number ofmeasures that ought to be taken, which canimprove the Government’s response to non-UKnationals who experience homelessness related toone or more of the following:

Exploitation

The Commission reiterates its belief that everyperson has a right to access social security and tobe free from all forms of exploitation. Therefore,the Commission makes the followingrecommendations to the Government (seeChapter 6):

28. Pending discontinuation of the WorkerRegistration Scheme, there should beaccess to homelessness assistance andwelfare benefits for those who haveworked but who, for whatever reason, havenot registered on the scheme. In addition,registration of a change of employmentshould not be a requirement of the WRS.

29. Until the WRS is discontinued, the feeshould be abolished.

30. To ensure that workers can assert theirrights, Worker Registration should notlapse if the individual is claiming unfairdismissal on loss of employment.

31. Where an individual is out of work due towork related injury, WRS status should notimpact on her or his entitlement tohomelessness assistance and welfarebenefits.

The Commission asserts that everyone has the rightto be protected from sexual exploitation and sexualand other forms of trafficking. It is stronglycommitted to the rights of all victims to appropriatematerial, medical, psychological and socialassistance. Therefore, the Commission makes thefollowing recommendation to the Government:

32. There should be homelessness assistanceand welfare benefits for non-UK nationalswho have been brought to the UK as aresult of trafficking. The Governmentshould consider how support can beprovided even where victims do not wishto report their experiences to the‘Competent Authority’. In addition, theCommission urges the Government to viewits commitments under the EuropeanConvention on Human Rights as minimumobligations and to build upon theassistance that it provides to victims. Inparticular, the Government should ensurethat the reflection period for victims oftrafficking, which is currently 45 days, isextended in line with international bestpractice.

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Asylum seekers and refugees

The Commission holds firm the belief that everyonehas the right to work, and makes the followingrecommendation to the Government (seeChapter 7):

33. All asylum seekers should be allowed towork pending the outcome of theirapplication or, in the case of failed asylumseekers, until such time as they can beremoved from the UK. Where possible,other individuals subject to immigrationcontrol should be allowed to work.

The Commission is committed to the principle thatevery child who is temporarily, or permanently,deprived of her or his family environment has theright to special protection and assistance for aslong as they need it. In particular, the Commissionmakes the following recommendation to therelevant agencies:

34. Where a doubt arises in relation to the ageof a child, agencies should provide fullsupport, including accommodation andsubsistence, until it is established that theindividual is not a minor.

The Commission is deeply concerned about thepractice of accommodating children inunsupervised private accommodation, for example,bed and breakfasts. In order to ensure the right ofevery child to be protected from all forms ofviolence, maltreatment, neglect, exploitation andharassment, the Commission makes the followingrecommendation to the Trusts:

35. The practice of accommodating minors inunsupervised and un-vetted privateaccommodation should end without delay.

Domestic violence

The Commission embraces the principle thateveryone has the right to be free from all forms ofviolence and harassment including, but not limitedto, domestic violence. In order to comply with thisright and to ensure the care and protection ofvictims, the Commission makes the followingrecommendations (see Chapter 8):

36. The Government should provide all victimsof domestic violence with appropriatematerial, medical, psychological and socialassistance and, in particular, advice onbenefit and accommodation options,irrespective of their entitlement to publicfunds. Victims of domestic violence shouldbe entitled to Social Fund assistance.

37. The Government should extend thedomestic violence rule to include all non-EUnationals who have entered the UK subjectto a visa stating that they have no recourseto public funds. In addition, the applicationfee under the domestic violence rule shouldbe abolished and legal aid provided to allvictims.

38. Trusts should devise, disseminate, andimplement human rights compliantguidance on their duty to support allnon-UK national victims of domesticviolence who are ineligible forhomelessness assistance and welfarebenefits.

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Ill-health and disability

The Commission is dedicated to the fact thateveryone has the right to the highest attainablestandard of physical and mental health and believesthat everyone should be provided with support priorto, and after, discharge from alternative care, toassist towards independent living. The Commissionfurther believes that public authorities should takeall appropriate measures to promote the rights ofolder persons and those who are disabled to lead alife of independence. In this regard, theCommission makes the following recommendations(see Chapter 9):

39. The NIHE should ensure that individualspresenting as homeless, with seriousphysical ill-health, can be considered for‘priority need’ (within the meaning of theHousing (Northern Ireland) Order 1988).

40. The NIHE should ensure that staff canidentify alcohol and substance misuse as apotential indicator of mental ill-health or asan ‘other special reason’ for ‘priority need’.

41. The Government should ensure access toaccommodation and welfare benefits toallow appropriate aftercare for non-UKnationals who are ineligible for homelessassistance and welfare benefits where theyare ill or have been recently disabled.

42. Pending amendment of the legislation (asper Recommendation 11), Trusts shouldissue guidance on travel arrangements, andaccommodation pending travel, for ill ordisabled non-UK nationals to ensure thatthe arrangements are implementedaccording to a clear decision-makingprocess and one that is compatible withinternational human rights standards.

Racial intimidation

The Commission is committed to the fundamentalprinciples of equality and non-discrimination andholds firm the belief that everyone has the right tobe free from all forms of violence and harassment.Therefore, the Commission makes the followingrecommendation (see Chapter 10):

43. The Government should ensure that allvictims of intimidation have access toappropriate support including, whererelevant, homelessness assistance.

44. The NIHE should develop specific trainingfor housing officers, outlining how torespond to homelessness applicationsmade on grounds of racial intimidation. Forall district offices, training should ensurethat there is a consistent approach by staffwhen determining whether an attack hastaken place and how to assess whether anincident should be categorised asintimidation as opposed to neighbourhoodharassment. In addition, the trainingshould be Macpherson compliant so thatall staff are aware of the Macphersondefinition of a racial incident, which is anyincident perceived by the victim, or anyother person, as racist.

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References


Articles

Bowling B and Phillips C (2002) in Goodey J (2007) ‘Racist violence in Europe: challenges for official datacollection’, Ethnic and Racial Studies, 30(4) July 2007

Cholewinski R (1998) ‘Enforced destitution of asylum seekers in the United Kingdom: the denial of fundamentalhuman rights’, International Journal of Refugee Law, 10(3) 1998

Chrisafis A (2005) ‘Migrants’ grim deal thrown into tragic relief: Ukranian woman’s double amputation offersnew evidence of social problem in Northern Ireland’ The Guardian, 13 January 2005

Kelly E (2000) ‘Racism, police and courts in Scotland’ Scottish Affairs, No 30, winter 2000

Lundy S (1993) ‘Abuse that dare not speak its name: assisting victims of lesbian and gay domestic violence inMassachusetts’ New England Law Review, 28 273, winter 1993

O’Cinneide C (2008) ‘A modest proposal: destitution, state responsibility and the European Convention onHuman Rights’ European Human Rights Law Review, 5, 2008

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Reports

Asylum Support Appeals Project (2007) Failing the Failed: How NASS Decision Making is Letting Down DestituteRejected Asylum Seekers ASAP, Croydon

Concordia (2006) Migrant Workers in Northern Ireland Concordia Partnership for Progress, Dungannon

Dowling S, Moreton K and Wright L (2007) Trafficking for the Purposes of Labour Exploitation: A Literature ReviewHome Office, London

European Federation of National Organisations Working with the Homeless (2005) FEANTSA Policy Statement:How Health Professionals can Work Towards Meeting the Health Needs of Homeless People FEANTSA, Brussels

Hague G, Thiara R, Magowan P and Mullender A (2008) Making the Links: Disabled Women and DomesticViolence Final Report Women’s Aid Federation of England, Bristol

Holder D (2007) Issues Facing Migrant Workers in Northern Ireland: A Research Compendium of Animate andPartner Research 2004-7 ANIMATE, Dungannon and South Tyrone

House of Commons Committee of Public Accounts (2006) Returning failed asylum applicants, Thirty-fourth Reportof Session 2005-06 HC 620 2005-06, TSO Ltd, London

House of Lords, House of Commons Joint Committee on Human Rights (2007) The Treatment of AsylumSeekers, Volume I, Report and Formal Minutes Tenth Report of Session 2006-07 HL 81-I/HC 60-I TSO Ltd, London

House of Lords, House of Commons Joint Committee on Human Rights (2008) Monitoring the Government’sResponse to Human Rights Judgments: Annual Report 2008, Thirty-first Report of Session 2007-08, HL 173/HC1078 TSO Ltd, London

Independent Asylum Commission (2008) Deserving Dignity: How to Improve the Way We Treat People ReceivingSanctuary, Third Report of Conclusions and Recommendations, IAC, London

Mama A (1996) The Hidden Struggle: Statutory and Voluntary Sector Responses to Violence against Black Womenin the Home (2nd ed) Whiting and Birch Ltd, London

Northern Ireland Housing Executive (2007) Black and Minority Ethnic and Migrant Worker Mapping Update NIHE,Belfast

Office of the United Nations High Commissioner for Human Rights (2006) The Rights of Non-citizens UnitedNations, New York

Prior J (2006) Destitute and Desperate: A Report on the Numbers of ‘Failed’ Asylum Seekers in Newcastle uponTyne and the Services Available to Them Open Door (North East), Newcastle upon Tyne

Southhall Black Sisters and the Women’s Resource Centre (2006) How Can I Support Her? Domestic Violence,Immigration and Women with No Recourse to Public Funds, Southhall Black Sisters and Women’s ResourceCentre, London

Wright NMJ and Tompkins CNE (2005) How Can Health Care Systems Effectively Deal with the Major Health CareNeeds of Homeless People? World Health Organisation Regional Office for Europe, Copenhagen

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Cases

Adan v Newham London Borough Council [2002] EWCA Civ 1916

Albert and Le Compte v Belgium (1983) 5 EHRR 533

Begum (Nipa) v Tower Hamlets London Borough Council [2000] 1 WLR 306

Begum (Runa) v Tower Hamlets London Borough Council [2002] EWCA Civ 239

Begum (FC) (Appellant) v London Borough of Tower Hamlets [2003] UKHL 5

Chapman v UK (2001) 18 January 2001

Commission v EU Parliament and Council (Case C - 2999/05) 18 October 2007

Connors v UK (2004) (Application no. 66746/01) 27 May 2004

Feldbrugge v Netherlands (1986) 8 EHRR 425

Gaygusuz v Austria (1997) 23 EHRR 364

Mahmut Kaya v Turkey (Application No 22535/93) 28 March 2000

Maslov v Austria (2008) (Application No 1638/03) 23 June 2008

O’Rourke v UK (2001) (Application No 39022/97) unreported, 26 June 2001

Osman v UK (1998) Case No 87/1997/871/1083, 5 November 1998

Powell v UK (2000) 30 EHRR CD363

Pretty v UK (2002) 35 EHRR 1

R (on the application of Bernard) v Enfield LBC [2002] EWHC 2282 (Admin)

R (Gabaj) v First Secretary of State (28 March 2006, unreported)

R (Morris) v Westminster City Council [2005] EWCA Civ 1184

R v Secretary of State for the Home Department (Appellant) ex parte Adam; R v Secretary of State for the HomeDepartment (Appellant) ex parte Limbuela; R v Secretary of State for the Home Department (Appellant) ex parteTesema (Conjoined Appeals) [2005] UKHL 66

R (RJM) v Secretary of State for Work and Pensions [2008] UKHL 63

Raninen v Finland (1997) (Application Number 20972/92) 16 December 1997

Salesi v Italy (1993) 26 EHRR 189

Secretary of State for Work and Pensions v Bhakta [2006] EWCA Civ 65

Stec v UK (2005) 41 EHRR SE295

Zalewska (AP) (Appellant) v Department for Social Development (Respondents) (Northern Ireland) [2008] UKHL 67

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Appendix 1: Methodology


The investigation aimed to establish the law andpolicy relating to homeless non-UK nationals and toassess the day-to-day approach of the threegovernment agencies, the Housing Executive, theSocial Security Agency, and the Health and SocialCare Trusts. However, in conducting theinvestigation, it was not the intention to obtain arepresentative, quantitative account of governmentagency practices in relation to non-UK nationalsacross Northern Ireland. Rather, the investigationconsidered the approach of each agency based onthree geographical locations using, for the mostpart, case file review and semi-structuredinterviews with staff. The methodology is thereforepurposive and largely qualitative. For the mostpart, the experiences and views of governmentagency staff, voluntary sector organisations andnon-UK nationals have been used to inform thefindings of the report.

The government agenciesDocumentary analysis

The Commission issued the terms of reference tothe three government agencies on 30 May 2008,and requested an initial meeting with each agencyto discuss the requirements of the investigation.In the course of these meetings, each agency wasasked to provide various information includingguidance and case file access. The investigatorsalso requested agency staff for interview. Theinvestigators subsequently reviewed and analysedguidance, forms and correspondence from thethree agencies. In the case of the Social SecurityAgency, the investigators were also granted accessto the agency’s intranet facility.

Case files

The investigators were provided with access tocase files by each of the government agencies. Forthe NIHE and the SSA, information obtained fromcase files was entered into an SPSS database foranalysis. The following is an overview of the casefiles reviewed within each agency.


Case files were reviewed by the investigators ifdistrict managers indicated during initial intervieweither that the office received regular applicationsfrom non-UK nationals or that the applicationsreceived, although small, were of direct relevanceto the subject of the investigation. As a result,case files were reviewed from each of the districtoffices except Belfast West, where a smallernumber of four applications had been received fromnon-UK nationals over the year preceding theperiod of the investigation. In Belfast West, staffindicated that, for the most part, applications fromnon-UK nationals related to the social housingwaiting list and were not homelessness claims.

As NIHE district offices do not record applicants bynationality, it was agreed that each district officewould review case file records and identify a list offiles by name. The investigators then reviewed thefiles to determine if the applicant was a non-UKnational. NIHE staff and the investigatorsrecognised that this was a crude method but,nevertheless, the only way to extracthomelessness claims made by non-UK nationalswho might potentially have no, or limited, access topublic funds. Depending on the number ofapplicants identified, the investigators reviewed allfiles provided by the district office or, if this was notmanageable, an appropriately sized sample. A totalof 132 case files were reviewed. In order tounderstand the processes involved in arriving at afinal decision and for comparison, the investigatorsasked for case files made up of both negative andpositive outcomes. Table 1 provides a breakdownof the case files reviewed by district according tothe type of application (a homelessness applicationor application to be placed on the waiting list forsocial housing).

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Table 1 NIHE Case files reviewed by district and type ofapplication

Table 1 shows that, by far, the majority of case filesreviewed was in the HSU in Belfast and this wasfollowed by Dungannon and Belfast North. This isreflective of the caseload for non-UK nationalsacross the district offices considered.

The Trusts

The investigation focused on the delivery ofservices by the three Health and Social Care Trustsresponsible for the areas covered by theinvestigation. The following groups made up themain focus of the investigation:

1. Children’s services (Dungannon, Cookstown,Belfast West, Belfast South & East, BelfastNorth)

2. Emergency Duty Teams

3. Adult services (Dungannon, Cookstown,Belfast)

For the purposes of the investigation, case fileaccess was provided with client consent. As withthe other agencies in this investigation, the Trustsdo not record client information by nationality. Inpractice, case file access was arranged via

individual social workers who identified activecases on their workload. Provided that clientconsent was obtained, the investigators wereprovided with onsite access to the file. In total, theinvestigators reviewed 10 case files. The Trusts’case files differ significantly from the types ofinformation held by the NIHE and the SSA. It wastherefore not appropriate to use an SPSS database,but rather to make a detailed qualitative note of theinformation within each file.

In terms of the case files reviewed, nine related tothe Belfast Trust and one from the Northern Trust(Cookstown). Despite repeated telephonerequests, access to relevant case files from theSouthern Trust (Dungannon) was not provided intime. This was despite the investigators extendingthe fieldwork period for the investigationspecifically to accommodate the Trust.


The investigators had contact with relevant officeswithin the three geographical locations covered bythe investigation: Belfast, Cookstown, andDungannon. Case files were reviewed by theinvestigators if district or office managers indicatedduring initial interview either that the officereceived regular applications from non-UK nationalsor that the applications received, although small,were of direct relevance to the subject of theinvestigation. As a result, case files were reviewedfrom each of the offices listed below. Theinvestigators requested a sample of positive andnegative sample of case files relating to IncomeSupport and Jobseeker’s Allowance. In addition,the investigators had access to a small number ofSocial Fund applications.

Social security offices do not record applicants bynationality and, as with the NIHE, it was agreedthat each office would review case file records andidentify a list of files by name. Again, depending onthe number of applicants identified, theinvestigators reviewed all provided by the office or,

District OfficeNumber ofcase filesreviewed

Number ofhomelessapplications

Number ofapplicationsfor HSS only

HSU 46 46 0

Belfast East 10 10 0

Belfast North 18 16 2

Belfast South 15 10 5

Belfast West 0 0 0

Shankill 9 1 8

Dungannon 27 27 0

Cookstown 2 2 0

Total 127 112 15

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if this was not manageable, an appropriately sizedsample. In total, 124 case files were reviewed plusnine Social Fund case files. Table 2 provides abreakdown of the case files reviewed by districtoffices according to the type of application.Table 2 SSA Case files reviewed by district offices and

type of application

Interviews

The interviews with each of the governmentagencies followed a semi-structured interviewschedule exploring:

• the numbers of non-UK nationals presentingfor homelessness support

• the circumstances leading applicants torequest homelessness support

• referral options

• work with other agencies

• the working approach in individual cases(including decision-making processes andfollow-up)

• training in relation to eligibility and claims bynon-UK nationals

• communication (interpreting and translation)

• human rights training and any human rightsconcerns, and

• suggestions and recommendations for thefuture.

In addition to semi-structured interviews, theinvestigators also met with senior management andDepartment representatives at various stagesthroughout the investigation.


In terms of the NIHE, the investigators conducted atotal of 25 interviews with management level andfront line staff in each of the district offices coveredby the investigation. Many of the interviewsinvolved multiple participants. In total, 43 staffmembers were interviewed. The breakdown ofinterviews completed by area is as follows:Table 3 NIHE interviews by district

*indicates multiple participants in at least one of the interviewsnoted

Office IncomeSupport JSA Social Fund

ShaftesburySquare 12 25 0

Falls Road 3 3 0

Holywood Road 4 5 4

Shankill Road 1 4 0

Dungannon 11 18 0

Cookstown 23 15 0

CorporationStreet 0 0 5

Totals 54 70 9

NIHE / District Office Number of interviews

HSU 5*

Belfast East 3

Belfast North 3*

Belfast South 4*

Belfast West 1*

Shankill 1*

Dungannon 6*

Cookstown 2*

Total 25

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The Trusts

The investigators conducted a total of 14interviews with management level and frontlineTrust staff in each of the areas covered by theinvestigation. The majority of interviews involvedmultiple participants; the total number of Trustinterviewees was 38. At no stage did theinvestigators find a person with overallresponsibility for adult services within each Trust.Although the investigators were provided with keycontacts within each Trust, most contacts relatedto children’s services. The investigators undertooka considerable amount of work within each Trustarea to track down persons responsible for thedelivery of services to adults and to co-ordinate aninterview. Interviews with those responsible foradult services generally involved a representativefrom mental health services, disability (includinglearning disability) and sensory impairment, olderpersons and, in some instances, the EmergencyDuty Team (EDT). Table 4 outlines the interviews byarea.Table 4 Trusts interviews by area



Finally, the investigators conducted a total of25 interviews with management level and frontlinestaff within the relevant SSA offices across each ofthe three areas covered by the investigation.Again, in many instances, the interviews involvedmultiple participants. The total number ofinterviewees was 35. Table 5 shows thebreakdown of interviews by area.Table 5 SSA interviews by area


Area Number ofinterviews

Belfast West Children’s Services 2

Belfast South & East Children’s Services 1*

Belfast North & West Children’s Services 3*

Belfast Adolescent Team 1*

Belfast ‘Adult Services’ 1*

Belfast EDT 1*

Cookstown Children’s Services 1*

Cookstown ‘Adult Services’ 1*

Dungannon Children’s Services 2*

Dungannon ‘Adult Services’ 1*

Total 14

Office Number ofinterviews

Shaftesbury Square 8*

Falls Road 1*

Holywood Road 7*

Shankill Road 1*

Dungannon 2*

Cookstown 5*

Decision Making Services 1*

Total 25

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ObservationsNorthern Ireland Housing Executive

In two instances, the investigators observed housevisits during which applicants completed a housingform with NIHE visiting staff.

The Trusts

In one instance, the investigators observed a caseconference for a non-UK national due to bedischarged from long-term hospital care. Towardsthe end of the fieldwork period, the investigatorswere also invited to observe a workshop organisedby the Department focusing on social care issuesand non-UK nationals.


The investigators were walked through each stageof the benefit application process from a customertelephoning for information through to decisionmaking. This included observing face-to-faceinterviews for National Insurance and/or benefitapplications across the offices. The investigatorsalso observed a number of SSA interviews toassess entitlement by non-UK nationals for IncomeSupport, Jobseeker’s Allowance, and NationalInsurance numbers.

NGO fieldworkThe investigators contacted a range ofnon-governmental organisations throughout thecourse of the investigation. Initial meetings wereheld with several key stakeholders in the scopingstages of the investigation. Telephone surveyswere conducted with all hostel accommodationproviders in Belfast, Cookstown and Dungannonand follow-up interviews were carried out withthose who had experience of accommodatingnon-UK nationals. The investigators similarlycontacted a wide range of voluntary andcommunity based organisations to establishwhether they had any experience of dealing withhomeless non-UK nationals, and subsequentlyconducted over thirty interviews with voluntarysector staff and other relevant individuals. Theinvestigators were also provided with records andcase studies from several voluntary organisations.As the next section will outline, voluntaryorganisations also facilitated meetings between theinvestigators and homeless individuals.

Interviews with homeless peopleAs part of the investigation, a leaflet was producedinviting non-UK nationals, who had experiencedhomelessness, to take part in an interview. Theleaflet was translated into several languages and,with agreement, distributed to a number ofvoluntary organisations providing accommodationand/or advice to non-UK nationals. As a result,14 individuals took part in interviews for theinvestigation.

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Appendix 2: Glossary


Asylum seeker: Defined as someone who has made a formal claim for asylum within the UK and whoseclaim is being processed.

A8 nationals: Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia, Slovenia.

A2 nationals: Romania and Bulgaria.

Destitution: The Oxford English Dictionary defines destitution as “the state of being extremely poor andlacking the means to provide for oneself”. The legislation specifically defines destitution as the inability toaccess accommodation and meet essential living expenses for the next 14 days (Section 95(3) Immigrationand Asylum Act 1999).

Discretionary leave: A grant of limited leave applied for one of a defined number of reasons. Discretionaryleave can last for three years; it can then be extended or permission can be sought to settle permanently.Alongside humanitarian protection, it replaced exceptional leave to remain in April 2003.

EEA nationals: Austria, Belgium, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany,Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Slovakia,Slovenia, Spain, Sweden, UK.

Exceptional leave to remain: A discretionary status now replaced by humanitarian protection anddiscretionary leave. It was granted for various reasons, mostly on compassionate or humanitarian grounds.

Habitual Residence Test: This is a test to establish whether a welfare benefits, or homelessness, applicantwho has recently returned to the UK after living abroad, or is a new arrival in the UK, has a ‘centre of interest’in the common travel area (which consists of the UK, Republic of Ireland, Channel Islands and the Isle of Man).No person will be treated as habitually resident unless he or she has a right to reside in the UK, the ChannelIslands, the Isle of Man, or the Republic of Ireland. People who do have a right to reside will still have to showthat they are habitually resident.

Humanitarian protection: A grant of limited leave to stay in the UK for someone who has been refusedasylum but who can “demonstrate they have protection needs”, such as risk of the death penalty, unlawfulkilling and torture or inhuman or degrading treatment or punishment.

Indefinite leave to remain: Technical term for the permission an asylum seeker, or other non-EEA national,needs to be given to settle in the UK permanently.

International Organisation for Migration (IOM): An independent non-governmental organisation thatoperates around the world to facilitate migration including return. The Government grants them 100 per centof funds required to administer the VARRP programme from the European Refugee Fund.

158


Overstayer: A person who stays in the UK for longer than the period of time they have been granted.

Public funds: For the purposes of Section 115 of the Immigration and Asylum Act 1999, public funds are:income based Jobseeker’s Allowance, Attendance Allowance, Severe Disablement Allowance, Invalid CareAllowance, Disability Living Allowance, Income Support, Working Families’ Tax Credit, Disabled Person’s TaxCredit, a Social Fund Payment, Child Benefit, Housing Benefit, Council Tax Benefit.

Refugee: The term ‘refugee’ is used in this report to describe a person in the UK who has been given apositive decision on their asylum claim and has been granted a type of ‘leave to remain’.

United Kingdom Border Agency (UKBA): The department of the Home Office responsible for overseeingthe granting of asylum decisions and visa applications.

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Appendix 3: List of organisations

The authors wish to acknowledge the fact that all relevant hostel accommodation providers participated in atelephone survey during the scoping phase of the investigation.

In addition, staff from the following organisations based in Belfast, Cookstown and Dungannon contributedthroughout the course of the fieldwork.

• An Munia Tober

• Belfast City Council

• British Red Cross (Northern Ireland)

• Bryson One Stop Service for Asylum Seekers

• Chinese Welfare Association

• Citizen’s Advice Bureau

• Cookstown Migrant Workers Project

• Council for the Homeless Northern Ireland

• Crossfire Trust

• Dungannon and South Tyrone Borough Council

• Embrace (NI)

• EXTERN

• Home Plus

• Housing Rights Service

• Law Centre (NI)

• Morning Star

• Multicultural Resource Centre

• Multi Disciplinary Homeless Support Team

• Northern Ireland Council for Ethnic Minorities

• Northern Ireland Council for Refugee and Asylum Seekers

• Northern Ireland Women’s Aid Federation

• Peripatetic nurse – homelessness

• Polish Welfare Association

• Queens Quarter Housing

• Refugee Action Group

• Salvation Army

• Simon Community

• Starting Point

• Society of St Vincent de Paul

• South Tyrone Empowerment Project

• The Welcome Centre

Northern Ireland Human Rights CommissionTemple Court

39 North Street

Belfast BT1 1NA

Tel: (028) 9024 3987

Fax: (028) 9024 7844

Textphone: (028) 9024 9066

SMS Text: 07786 202075

Email: [email protected]

Website: www.nihrc.org

A summary of this document can be made available in

languages other than English, in Braille, in audio format or in

large print by request to the Commission’s offices. It is also

available on the Commission’s website at www.nihrc.org

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No Home from Home - Statewatch · September 2009 ISBN 1 903681 80 4 Foreword No Home from Home is a response to the Commission’s concern about the vulnerability of certain categories