Nationality, Immigration and Asylum Act 2002 (c. 41)

(The document as of February, 2008)

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(9) An accommodation centre is not a school within the meaning of section 4 of the Education Act 1996 (definition); but--

(a) the School Inspections Act 1996 (c. 57) shall apply to educational facilities provided at an accommodation centre as if the centre were a school (for which purpose a reference to the appropriate authority shall be taken as a reference to the person (or persons) responsible for the provision of education at the accommodation centre),

(b) section 329A of the Education Act 1996 (review or assessment of educational needs at request of responsible body) shall have effect as if--

(i) an accommodation centre were a relevant school for the purposes of that section,

(ii) a child for whom education is provided at an accommodation centre under section 29(1)(f) were a registered pupil at the centre, and

(iii) a reference in section 329A to the responsible body in relation to an accommodation centre were a reference to any person providing education at the centre under section 29(1)(f), and

(c) section 140 of the Learning and Skills Act 2000 (c. 21) (learning difficulties: assessment of post-16 needs) shall have effect as if an accommodation centre were a school.

(10) Subsections (1), (2) and (5) shall not apply in relation to an accommodation centre if education is not provided for children who are residents of the centre under section 29(1)(f).

(11) An expression used in this section and in the Education Act 1996 (c. 56) shall have the same meaning in this section as in that Act.

37 Education: special cases

(1) This section applies to a child if a person who provides education to residents of an accommodation centre recommends in writing to the local education authority for the area in which the centre is that this section should apply to the child on the grounds that his special circumstances call for provision that can only or best be arranged by the authority.

(2) A local education authority may--

(a) arrange for the provision of education for a child to whom this section applies;

(b) disapply a provision of section 36 in respect of a child to whom this section applies.

(3) In determining whether to exercise a power under subsection (2) in respect of a child a local education authority shall have regard to any relevant guidance issued by the Secretary of State.

(4) The governing body of a maintained school shall comply with a requirement of the local education authority to admit to the school a child to whom this section applies.

(5) Subsection (4) shall not apply where compliance with a requirement would prejudice measures taken for the purpose of complying with a duty arising under section 1(6) of the School Standards and Framework Act 1998 (c. 31) (limit on infant class size).

(6) A local education authority may not impose a requirement under subsection (4) in respect of a school unless the authority has consulted the school in accordance with regulations made by the Secretary of State.

(7) In the case of a maintained school for which the local education authority are the admission authority, the authority may not arrange for the admission of a child to whom this section applies unless the authority has notified the school in accordance with regulations made by the Secretary of State.

(8) In this section--

(a) "maintained school" means a maintained school within the meaning of section 20(7) of the School Standards and Framework Act 1998 (definition), and

(b) an expression which is also used in the Education Act 1996 (c. 56) shall have the same meaning as it has in that Act.

38 Local authority

(1) A local authority may in accordance with arrangements made by the Secretary of State--

(a) assist in arranging for the provision of an accommodation centre;

(b) make premises available for an accommodation centre;

(2) In particular, a local authority may--

(a) incur reasonable expenditure;

(b) provide services outside its area;

(d) form a company;

(e) tender for or enter into a contract;

(f) do anything (including anything listed in paragraphs (a) to (e)) for a preparatory purpose.

(3) In this section "local authority" means--

(a) a local authority within the meaning of section 94 of the Immigration and Asylum Act 1999 (c. 33), and

(b) a Northern Ireland authority within the meaning of section 110 of that Act and an Education and Library Board established under Article 3 of the Education and Libraries (Northern Ireland) Order 1986 (S.I. 1986/ 594 (N.I. 3)).

39 "Prescribed": orders and regulations

(1) In this Part "prescribed" means prescribed by the Secretary of State by order or regulations.

(2) An order or regulations under this Part may--

(a) make provision which applies generally or only in specified cases or circumstances (which may be determined wholly or partly by reference to location);

(b) make different provision for different cases or circumstances;

(3) An order or regulations under this Part must be made by statutory instrument.

(4) An order or regulations under any of the following provisions of this Part shall be subject to annulment in pursuance of a resolution of either House of Parliament--

(a) section 17,

(b) section 19,

(d) section 21,

(e) section 26,

(f) section 29,

(g) section 31,

(h) section 32,

(i) section 33,

(j) section 37,

(k) section 40, and

(l) section 41.

(5) An order under section 25 or regulations under section 30 may not be made unless a draft has been laid before and approved by resolution of each House of Parliament.

40 Scotland

(1) The Secretary of State may not make arrangements under section 16 for the provision of premises in Scotland unless he has consulted the Scottish Ministers.

(2) The Secretary of State may by order make provision in relation to the education of residents of accommodation centres in Scotland.

(3) An order under subsection (2) may, in particular--

(a) apply, disapply or modify the effect of an enactment (which may include a provision made by or under an Act of the Scottish Parliament);

(b) make provision having an effect similar to the effect of a provision of section 36 or 37.

41 Northern Ireland

(1) The Secretary of State may not make arrangements under section 16 for the provision of premises in Northern Ireland unless he has consulted the First Minister and the deputy First Minister.

(2) The Secretary of State may by order make provision in relation to the education of residents of accommodation centres in Northern Ireland.

(3) An order under subsection (2) may, in particular--

(a) apply, disapply or modify the effect of an enactment (which may include a provision made by or under Northern Ireland legislation);

(b) make provision having an effect similar to the effect of a provision of section 36 or 37.

42 Wales

The Secretary of State may not make arrangements under section 16 for the provision of premises in Wales unless he has consulted the National Assembly for Wales.

Part 3 Other Support and Assistance

43 Asylum-seeker: form of support

(1) The Secretary of State may make an order restricting the application of section 96(1)(b) of the Immigration and Asylum Act 1999 (c. 33) (support for asylum-seeker: essential living needs)--

(a) in all circumstances, to cases in which support is being provided under section 96(1)(a) (accommodation), or

(b) in specified circumstances only, to cases in which support is being provided under section 96(1)(a).

(2) An order under subsection (1)(b) may, in particular, make provision by reference to--

(a) location;

(b) the date of an application.

(3) An order under subsection (1) may include transitional provision.

(4) An order under subsection (1)--

(a) must be made by statutory instrument, and

(b) may not be made unless a draft has been laid before and approved by resolution of each House of Parliament.

44 Destitute asylum-seeker

(1) Section 94 of the Immigration and Asylum Act 1999 (c. 33) (support for destitute asylum-seeker) shall be amended as follows.

(2) In subsection (1) for the definition of "asylum-seeker" substitute--

" "asylum-seeker" means a person--

(a) who is at least 18 years old,

(b) who is in the United Kingdom,

(d) whose claim has been recorded by the Secretary of State, and

(e) whose claim has not been determined; " .

(3) In subsection (1) for the definition of "dependant" substitute--

" "dependant" in relation to an asylum-seeker or a supported person means a person who--

(a) is in the United Kingdom, and

(b) is within a prescribed class; " .

(4) For subsection (3) substitute--

" (3) A claim for asylum shall be treated as determined for the purposes of subsection (1) at the end of such period as may be prescribed beginning with--

(a) the date on which the Secretary of State notifies the claimant of his decision on the claim, or

(b) if the claimant appeals against the Secretary of State's decision, the date on which the appeal is disposed of.

(3A) A person shall continue to be treated as an asylum-seeker despite paragraph (e) of the definition of "asylum-seeker" in subsection (1) while--

(a) his household includes a dependant child who is under 18, and

(b) he does not have leave to enter or remain in the United Kingdom. "

(5) Omit subsections (5) and (6).

(6) The following shall be substituted for section 95(2) to (8) of the Immigration and Asylum Act 1999 (c. 33) (support for destitute asylum-seeker: interpretation)--

" (2) Where a person has dependants, he and his dependants are destitute for the purpose of this section if they do not have and cannot obtain both--

(a) adequate accommodation, and

(b) food and other essential items.

(3) Where a person does not have dependants, he is destitute for the purpose of this section if he does not have and cannot obtain both--

(a) adequate accommodation, and

(b) food and other essential items.

(4) In determining whether accommodation is adequate for the purposes of subsection (2) or (3) the Secretary of State must have regard to any matter prescribed for the purposes of this subsection.

(5) In determining whether accommodation is adequate for the purposes of subsection (2) or (3) the Secretary of State may not have regard to--

(a) whether a person has an enforceable right to occupy accommodation,

(b) whether a person shares all or part of accommodation,

(d) the location of accommodation, or

(e) any other matter prescribed for the purposes of this subsection.

(6) The Secretary of State may by regulations specify items which are or are not to be treated as essential items for the purposes of subsections (2) and (3).

(7) The Secretary of State may by regulations--

(a) provide that a person is not to be treated as destitute for the purposes of this Part in specified circumstances;

(b) enable or require the Secretary of State in deciding whether a person is destitute to have regard to income which he or a dependant of his might reasonably be expected to have;

(c) enable or require the Secretary of State in deciding whether a person is destitute to have regard to support which is or might reasonably be expected to be available to the person or a dependant of his;

(d) enable or require the Secretary of State in deciding whether a person is destitute to have regard to assets of a prescribed kind which he or a dependant of his has or might reasonably be expected to have;

(e) make provision as to the valuation of assets. "

45 Section 44: supplemental

(1) The following shall be substituted for section 96(1)(b) of the Immigration and Asylum Act 1999 (ways of providing support)--

" (b) by providing the supported person and his dependants (if any) with food and other essential items; " .

(2) In section 97 of the Immigration and Asylum Act 1999 (c. 33) (support: supplemental)--

(a) in subsection (4) for "essential living needs" there shall be substituted "food and other essential items",

(b) in subsection (5) for "essential living needs" there shall be substituted "food and other essential items", and

(3) Paragraphs 2 and 6 of Schedule 8 to the Immigration and Asylum Act 1999 (support: regulations) shall cease to have effect.

(4) In paragraph 3 of Schedule 9 to the Immigration and Asylum Act 1999 (support: interim provision)--

(a) for "Subsections (3) to (8) of section 95" substitute "Subsections (2) to (6) of section 95", and

(b) for "subsections (5) and (7)" substitute "subsections (4) and (5)".

(5) The following shall be substituted for section 21(1B) of the National Assistance Act 1948 (c. 29) (duty of local authority to provide accommodation: exclusion of destitute asylum-seeker: interpretation)--

" (1B) Section 95(2) to (7) of that Act shall apply for the purposes of subsection (1A) above; and for that purpose a reference to the Secretary of State in section 95(4) or (5) shall be treated as a reference to a local authority. "

(6) The following shall be substituted for section 45(4B) of the Health Services and Public Health Act 1968 (c. 46) (local authority promotion of welfare of elderly: exclusion of destitute asylum-seeker: interpretation)--

" (4B) Section 95(2) to (7) of that Act shall apply for the purposes of subsection (4A) above; and for that purpose a reference to the Secretary of State in section 95(4) or (5) shall be treated as a reference to a local authority. "

(7) The following shall be substituted for paragraph 2(2B) of Schedule 8 to the National Health Service Act 1977 (c. 49) (local authority arrangements for prevention and care: exclusion of asylum-seeker: interpretation)--

" (2B) Section 95(2) to (7) of that Act shall apply for the purposes of sub-paragraph (2A) above; and for that purpose a reference to the Secretary of State in section 95(4) or (5) shall be treated as a reference to a local social services authority. "

46 Section 44: supplemental: Scotland and Northern Ireland

(1) The following shall be substituted for section 12(2B) of the Social Work (Scotland) Act 1968 (c. 49)(general social welfare services of local authorities – exclusion of destitute asylum seeker: interpretation)--

" (2B) Section 95(2) to (7) of that Act shall apply for the purposes of subsection (2A) of this section; and for that purpose a reference to the Secretary of State in section 95(4) or (5) shall be treated as a reference to a local authority. "

(2) The following shall be substituted for section 13A(5) of that Act (provision of residential accommodation with nursing – exclusion of destitute asylum seeker: interpretation)--

" (5) Section 95(2) to (7) of that Act shall apply for the purposes of subsection (4) of this section; and for that purpose a reference to the Secretary of State in section 95(4) or (5) shall be treated as a reference to a local authority. "

(3) The following shall be substituted for section 13B(4) of that Act (provision of care and after-care – exclusion of destitute asylum seeker: interpretation)--

" (4) Section 95(2) to (7) of that Act shall apply for the purposes of subsection (3) of this section; and for that purpose a reference to the Secretary of State in section 95(4) or (5) shall be treated as a reference to a local authority. "

(4) The following shall be substituted for section 7(4) of the Mental Health (Scotland) Act 1984 (c. 36)(functions of local authorities – exclusion of destitute asylum seeker: interpretation)--

(5) The following shall be substituted for section 8(5) of that Act (provision of after-care services – exclusion of destitute asylum seeker: interpretation)--

(6) The following shall be substituted for Article 7(3A) of the Health and Personal Social Services (Northern Ireland) Order 1972 (S.I. 1972/1265 (N.I. 14)) (prevention of illness, care and after-care: exclusion of asylum-seeker: interpretation)--

" (3A) Section 95(2) to (7) of that Act shall apply for the purpose of paragraph (3); and for that purpose a reference to the Secretary of State in section 95(4) or (5) shall be treated as a reference to the Department. "

(7) The following shall be substituted for Article 15(7) of that Order (general social welfare: exclusion of destitute asylum-seeker: interpretation)--

" (7) Section 95(2) to (7) of that Act shall apply for the purpose of paragraph (6); and for that purpose a reference to the Secretary of State in section 95(4) or (5) shall be treated as a reference to the Department. "

47 Asylum-seeker: family with children

The following shall be substituted for section 122 of the Immigration and Asylum Act 1999 (c. 33) (destitute asylum-seeker with child: duty to support)--

" 122 Family with children

(1) This section applies where a person ("the asylum-seeker") applies for support under section 95 of this Act or section 17 of the Nationality, Immigration and Asylum Act 2002 (accommodation centres) if--

(a) the Secretary of State thinks that the asylum-seeker is eligible for support under either or both of those sections, and

(b) the asylum-seeker's household includes a dependant child who is under 18.

(2) The Secretary of State must offer the provision of support for the child, as part of the asylum-seeker's household, under one of the sections mentioned in subsection (1).

(3) A local authority (or, in Northern Ireland, an authority) may not provide assistance for a child if--

(a) the Secretary of State is providing support for the child in accordance with an offer under subsection (2),

(b) an offer by the Secretary of State under subsection (2) remains open in respect of the child, or

(c) the Secretary of State has agreed that he would make an offer in respect of the child under subsection (2) if an application were made as described in subsection (1).

(4) In subsection (3) "assistance" means assistance under--

(a) section 17 of the Children Act 1989 (c. 41) (local authority support),

(b) section 22 of the Children (Scotland) Act 1995 (c. 36) (similar provision for Scotland), or

(c) Article 18 of the Children (Northern Ireland) Order 1995 (S.I. 1995/775 (N.I. 2)) (similar provision for Northern Ireland).

(5) The Secretary of State may by order disapply subsection (3) in specified circumstances.

(6) Where subsection (3) ceases to apply to a child because the Secretary of State stops providing support, no local authority may provide assistance for the child except the authority for the area within which the support was provided. "

48 Young asylum-seeker

The following provisions of the Immigration and Asylum Act 1999 (c. 33) shall have effect as if the definition of asylum-seeker in section 94(1) of that Act did not exclude persons who are under 18--

(a) section 110 (local authority expenditure on asylum-seekers), and

(b) section 111 (grants to voluntary organisations).

49 Failed asylum-seeker

(1) The following shall be added at the end of section 4 of the Immigration and Asylum Act 1999 (accommodation for person on temporary admission or release)--

" (2) The Secretary of State may provide, or arrange for the provision of, facilities for the accommodation of a person if--

(a) he was (but is no longer) an asylum-seeker, and

(b) his claim for asylum was rejected.

(3) The Secretary of State may provide, or arrange for the provision of, facilities for the accommodation of a dependant of a person for whom facilities may be provided under subsection (2).

(4) The following expressions have the same meaning in this section as in Part VI of this Act (as defined in section 94)--

(a) asylum-seeker,

(b) claim for asylum, and

(2) The present section 4 of the Immigration and Asylum Act 1999 (c. 33) becomes subsection (1) (and its heading becomes "Accommodation").

50 Conditions of support

(1) The following shall be inserted after section 95(9) of the Immigration and Asylum Act 1999 (support for asylum-seeker: condition)--

" (9A) A condition imposed under subsection (9) may, in particular, relate to--

(a) any matter relating to the use of the support provided, or

(b) compliance with a restriction imposed under paragraph 21 of Schedule 2 to the 1971 Act (temporary admission or release from detention) or paragraph 2 or 5 of Schedule 3 to that Act (restriction pending deportation). "

(2) The following shall be inserted after paragraph 6 of Schedule 9 to that Act (asylum-seeker: interim support)--

" 6A The regulations may, in particular, require support to be provided subject to a condition of compliance with any restriction imposed under paragraph 21 of Schedule 2 to the 1971 Act (temporary admission or release from detention) or paragraph 2 or 5 of Schedule 3 to that Act (restriction pending deportation). "

51 Choice of form of support

(1) The Secretary of State may refuse to provide support for a person under a provision specified in subsection (2) on the grounds that an offer has been made to the person of support under another provision specified in that subsection.

(2) The provisions are--

(a) sections 17 and 24 of this Act,

(b) section 4 of the Immigration and Asylum Act 1999 (accommodation for person temporarily admitted or released from detention), and

(3) In deciding under which of the provisions listed in subsection (2) to offer support to a person the Secretary of State may--

(a) have regard to administrative or other matters which do not concern the person's personal circumstances;

(b) regard one of those matters as conclusive;

(c) apply different criteria to different persons for administrative reasons (which may include the importance of testing the operation of a particular provision).

52 Back-dating of benefit for refugee

In section 123(7) of the Immigration and Asylum Act 1999 (c. 33) (back-dating of benefit for refugee: deduction for support received) after "under this Part" there shall be inserted "or Part 2 of the Nationality, Immigration and Asylum Act 2002 (accommodation centres)".

53 Asylum-seeker: appeal against refusal to support

The following shall be substituted for section 103 of the Immigration and Asylum Act 1999 (asylum support appeal)--

" 103 Appeals: general

(1) This section applies where a person has applied for support under--

(a) section 95,

(b) section 17 of the Nationality, Immigration and Asylum Act 2002, or

(2) The person may appeal to an adjudicator against a decision that the person is not qualified to receive the support for which he has applied.

(3) The person may also appeal to an adjudicator against a decision to stop providing support under a provision mentioned in subsection (1).

(4) But subsection (3) does not apply--

(a) to a decision to stop providing support under one of the provisions mentioned in subsection (1) if it is to be replaced immediately by support under the other provision, or

(b) to a decision taken on the ground that the person is no longer an asylum-seeker or the dependant of an asylum-seeker.

(5) On an appeal under this section an adjudicator may--

(a) require the Secretary of State to reconsider a matter;

(b) substitute his decision for the decision against which the appeal is brought;

(6) An adjudicator must give his reasons in writing.

(7) If an appeal under this section is dismissed the Secretary of State shall not consider any further application by the appellant for support under a provision mentioned in subsection (1)(a) or (b) unless the Secretary of State thinks there has been a material change in circumstances.

(8) An appeal under this section may not be brought or continued by a person who is outside the United Kingdom.

103A Appeals: location of support under section 95

(1) The Secretary of State may by regulations provide for a decision as to where support provided under section 95 is to be provided to be appealable to an adjudicator under this Part.

(2) Regulations under this section may provide for a provision of section 103 to have effect in relation to an appeal under the regulations with specified modifications.

103B Appeals: travelling expenses

The Secretary of State may pay reasonable travelling expenses incurred by an appellant in connection with attendance for the purposes of an appeal under or by virtue of section 103 or 103A. "

54 Withholding and withdrawal of support

Schedule 3 (which makes provision for support to be withheld or withdrawn in certain circumstances) shall have effect.

55 Late claim for asylum: refusal of support

(1) The Secretary of State may not provide or arrange for the provision of support to a person under a provision mentioned in subsection (2) if--

(a) the person makes a claim for asylum which is recorded by the Secretary of State, and

(b) the Secretary of State is not satisfied that the claim was made as soon as reasonably practicable after the person's arrival in the United Kingdom.

(2) The provisions are--

(a) sections 4, 95 and 98 of the Immigration and Asylum Act 1999 (c. 33) (support for asylum-seeker, &c.), and

(b) sections 17 and 24 of this Act (accommodation centre).

(3) An authority may not provide or arrange for the provision of support to a person under a provision mentioned in subsection (4) if--

(a) the person has made a claim for asylum, and

(b) the Secretary of State is not satisfied that the claim was made as soon as reasonably practicable after the person's arrival in the United Kingdom.

(4) The provisions are--

(a) section 29(1)(b) of the Housing (Scotland) Act 1987 (c. 26) (accommodation pending review),

(b) section 188(3) or 204(4) of the Housing Act 1996 (c. 52) (accommodation pending review or appeal), and

(5) This section shall not prevent--

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