Written evidence submitted by Sheona York, Solicitor and Reader in Law, Kent Law Clinic, University of Kent (AAC0038)

2 February 2025

My organisation

The Kent Law Clinic is a team of academics in Kent Law School who are also practising solicitors. We provide legal advice, assistance and representation to Kent residents on legal issues including immigration, welfare benefits, housing, and family law. The cases are placed with students who work on them [under strict supervision] for formal academic assessment as part of their law degrees. Over 30 years Clinic solicitors have acted in reported legal cases, winning important rights for clients. We also carry out local workshops and training in our legal specialisms, to local authority staff, local refugee and migrant support agencies, and other relevant local charities.

My personal background[1]

I have worked on immigration, asylum, housing and asylum support cases for over 40 years, at Hammersmith Law Centre, Immigration Advisory Service and Kent Law Clinic. In the 2000’s I represented ILPA on the National Asylum Support Forum. In relation to this Inquiry, My casework experience in Kent has been with ‘failed asylum seekers’ fresh claims, family reunion and family life claims, citizenship applications. I also publish academic papers based on these casework experiences.

My submissions

There are plenty of government reports since the beginning of privatisation and outsourcing, making it clear that:

1. Governments not very good at designing a system of provision of public services which can efficiently produce the desired outcomes – whoever is charged with implementing and running it
2. Government are not very good at negotiating or managing big commercial contracts
3. Concentration on cost leads inexorably to poor standards, not just of the service itself, but of the record-keeping, etc which would assist recipients to ensure their legal rights to access the service
4. Successively outsourcing the same service leads over time to a concentration of the market – government as monopsony, the outsourcing providers as quasi-monopoly providers – little chance of ‘improving’ service provision without changing the service model
5. In turn, contractors turn into entities whose entire business is bidding for contracts, which, in order for the entity to remain afloat, must front-load their costs, or return to the government and force a renegotiation of the contract[2]
6. Such arrangements have led, legally, to situations replicated in many outsourcing contexts, from prisons, detention centres, electronic tagging, assessments of work capability, etc, where the contracts are between the government and an outsourcing entity, with the applicants (prisoners, detainees, benefit applicants, asylum-seekers) merely the ‘fodder’ for the contracts, with little or no attention given to the rights and entitlements of those people, which form the legal basis of the service being provided.

The main point of my submissions is that outsourcing provision of public services ‘legally distances’ migrants from their entitlements and their legal remedies. I have written about this in my book [December 2022][3] and also in my article The Nationality and Borders Act, The Illegal Migration Act and the Rwanda policy – an obdurate response to the consequences of austerity.[4] In section 6 of this article I discuss the impact of wider housing shortages, especially austerity-driven shortages of social housing and lower-rent private housing, in rendering asylum-seekers ‘hypervisible’. In particular, I show the impact that contracting outsourcing providers such as Serco, Mears and Clearsprings Readyhomes are having on local housing availability; how profits are being extracted by middlemen,[5] and how, even then, the previous government felt obliged to seek out wartime-style or novelty solutions such as old barracks and barges. You will find evidence of all of this in published reports of the National Audit Office, the Public Accounts Committee[6] and in newspaper financial reports, as I have cited in my publications.

My own conclusions about asylum support are:

• Without changing Home Office asylum procedures or the conditions on which asylum-seekers remain in the UK, the problem of housing asylum-seekers cannot be solved, whether practically or politically, without providing significantly more social housing and low-rent housing

• The practical problems could be ameliorated somewhat by
• Improving Home Office decision-making NOT by restricting access to asylum, etc, but
• adopting a shared burden of proof,
• properly fast-tracking people from war zones and failed states
• not refusing people on the basis of small inconsistencies, etc, and properly reviewing decisions as soon as appeals are lodged, thus reducing the numbers of appeals and therefore the length of time people remain in asylum accommodation

• AND/OR giving the right to work, in any job, after 6 months (maybe even 3 months if the person has useful qualifications) of waiting for a decision – potentially solving 3 problems at once
• A spur to the HO to speed up decision-making and get it right first time
• A reduction in the cost of supporting the asylum-seekers themselves
• Useful jobs finally being filled without further immigration whether legal or ‘spontaneous’ (With such labour shortages and with many businesses demanding overseas workers to fill them, it seems pointless to worry about ‘pull factors’, at the same time as bemoaning that ‘asylum-seekers won’t ever leave’).

The Migrant Help contract as an example of the problems of outsourcing asylum support and accommodation

In these submissions I concentrate on the failings of Migrant Help, who are part of the architecture of providing for asylum-seekers. First, the contract let to Migrant Help (the Advice, Issue Reporting and Eligibility (AIRE) contract misstates the law on who is eligible for asylum-support. This has led to a whole category of vulnerable people being excluded from accessing any part of the process of applying for asylum-support and accommodation without access to legal representation and formal, realistic threat of emergency judicial review and injunction. Secondly, [as evidenced in recent reports[7]] the liaison and coordination between Migrant Help, the Home Office and the outsourcing companies actually providing the accommodation does not work, slowing down or preventing applicants accessing the support and accommodation they need, and legally distancing them from any formal remedies.

My submissions are based on the account of a particular client’s case, which I am anonymising here. But the issues raised clearly relate to more than one applicant. This particular case is the subject of a complaint against the Home Office [made 2023, not responded to] and Migrant Help [inadequately responded to] and the Parliamentary and Health Service Ombudsman [no response].

Brief facts

My client PQ, who had entered the UK as a student, suffered from sickle cell anaemia. Very soon after she arrived, she faced a family tragedy, which led to personal stress exacerbating her sickle cell condition. Rapidly her condition deteriorated so she could not study or work, and she was frequently in hospital for emergency treatment as well as moving on to a programme of regular whole blood transfusions. She became dependent on friends, and then, when they could no longer support her, faced destitution.

I advised and assisted her with a formal application to the Home Office for leave to remain on the basis that return home would lead to a breach of art 3 ECHR, viz, that in her home country she would not be able to access the  complex treatment she needed, without which she would face a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy. [AM (Zimbabwe].[8] (The Home Office refused her application, but her appeal was allowed).

She had applied to Kent Social Services for an adult social care assessment. They determined that she was ‘not in need of care and attention’ but provided accommodation and subsistence for her while an application was made for asylum support. That was in March 2023.

Briskly, it took 3 months and a threat to the Home Office of a High Court injunction before it was agreed she was eligible for support – and yet a further week before it was provided – since although the Home Office has provided a decision letter in response to my threat of judicial review, that decision had not been made available to Migrant Help – neatly illustrating the lack of effective liaison and cooperation between the Home Office and Migrant Help.

Meanwhile, Kent County Council nobly continued to accommodate and support PQ while this legal battle was thrashed out.

The legal problem

Why was PQ not straightforwardly accepted as being entitled to asylum support?

Section 95 Immigration and Asylum Act 1999 states

(1)The Secretary of State may provide, or arrange for the provision of, support for—

(a)asylum-seekers, or

(b)dependants of asylum-seekers,

who appear to the Secretary of State to be destitute or to be likely to become destitute within such period as may be prescribed.

Section 94 Immigration and Asylum Act 1999 sets out who counts as ‘an asylum-seeker’ for the purposes of s95:

(1)In this Part—

    “asylum-seeker” means a person who is not under 18 and has made a claim for asylum which has been recorded by the Secretary of State but which has not been determined;

   “claim for asylum” means a claim that it would be contrary to the United Kingdom’s obligations under the Refugee Convention, or under Article 3 of the Human Rights Convention, for the claimant to be removed from, or required to leave, the United Kingdom;

Whereas the AIRE contract’s definition of eligibility, not reached until s3 of the Statement of requirements (Sch 2 of the AIRE contract), unlawfully and incorrectly states:

3. Eligibility

3.2.1

Only Service Users who have made an asylum claim are eligible to apply for Sec􀆟on 95 support.

In other words, while the law gives entitlement to people whose claim is based on particular Convention rights, the AIRE contract rests on what procedures a person has followed.

Now, most people making an application for asylum support are those who have just entered the UK and taken to an emergency centre, from where, after brief processing, may contact Migrant Help direct and then be provided with their ‘no choice’ accommodation. But many people who claim asylum are already in the UK, and may download and complete a lengthy form and post it to a PO box address, or simply telephone Migrant Help’s 24/7 telephone number for advice about how to apply.

But the above misstatement of entitlement inexorably led to basing the entire telephone gatekeeping process, and every other consequent part of the Migrant Help process, on a request for particular types of reference numbers which only asylum claimants would have, instead of just requesting an applicant’s UAN (a reference number provided in response to any online application to the Home Office) and checking with the Home Office to see if the holder had made a claim which satisfied s94 IAA 1999.

Further, the misstatement of law itself led to or at least contributed to a number of specific shortcomings in the way Migrant Help operates, including those answering the telephone, and those managing those people, being completely unable, unwilling and even argumentative in the face of attempts to explain to them that my client was indeed eligible for asylum support, giving unhelpful and useless suggestions such as to ‘use the chat box’ to make a formal complaint – which itself could not be used for the same reasons that the contract itself failed. Finally, my complaint rested on basic performance failures including the time taken to answer the phone [generally 1 – 1.5 hours, not 3 minutes]; the universal rather shirty assertion by those answering the phone ‘had no legal training’;   that ‘all decisions are taken by the Home Office’; while the contract insists that the individuals providing the service are trained in the law relating to asylum support – which must include a proper understanding of those who are entitled to receive it.

There is no email address. The street address produced no response whatever. Even PQ telephoning herself, absolutely desperate, could get nowhere. Only a threat of judicial review of the Home Office eventually solved PQ’s problem, and still then, Migrant Help could not get access to that Home Office decision, and continued to insist that she was not eligible.

I made formal complaints to the Home Office and to Migrant Help (and, on receiving no reply, applied to the Parliamentary and Health Service Ombudsman). But, nearly 2 years later, even after admitting that PQ herself was entitled to support, neither the Home Office nor Migrant Help have dealt with the wider more strategic aspects of the complaint, such as accepting that the contract misstates the law, and thus so does every aspect of their communicating and decision-making about this applicant, and any other applicant basing a claim for support on risk of art 3 harm. Even the Ombudsman service has not evinced any interest in what must count as a significant failure of public administration.

This is a truly acute example of legal distancing – where an outsourcing contract itself, and all the scripts and procedures based on it, explicitly denies a particular cohort of applicants from accessing their rights and entitlements.

My formal complaint to the Home Office and to Migrant Help provided a detailed analysis of the published contract and set out an exhaustive list of the different ways that the AIRE contract functions to keep out those who have not ‘made an asylum claim’, but who nevertheless are ‘asylum-seekers’ for the purposes of support.

The inability of Migrant Help and Clearsprings to deal with PQ’s practical problems

By the time PQ was provided with asylum support, she was very sick indeed, requiring regular hospital attendances for blood transfusions, as well as other appointments for investigations of other medical problems caused and exacerbated by sickle cell.

On her being accepted for asylum support (and being provided with reference numbers that Migrant Help could recognise) I made strong representations that she should be accommodated somewhere near the hospitals providing her with her complex care.

Despite that, she was rehoused on the no-choice basis to a town over 70 miles from those hospitals. She promptly suffered a sickle cell ‘crisis’ and had to be taken by emergency ambulance to a local hospital, herself having to explain that she needed oxygen, what painkillers to provide, which doctors to contact, etc.

The accommodation itself was unsuitable, with an upstairs bathroom that she could not always access. Nevertheless, for a short few months, once the new hospital obtained her medical records, she was provided with appropriate treatment, received support from local organisations supporting asylum-seekers, and began to settle down and await a decision on her application.

Then, out of the blue, late in the evening, she was told to pack and be ready the following morning, as she was to be returned to the city she had come from, ‘as Migrant Help had received medical representations that she needed to be near XYZ hospitals for her treatment’. [These were the medical representations that I had made several months earlier]. She declined to travel, and her support organisation reassured her that this could be sorted out, on the basis that she had recovered from the original move, and was comfortable with her new medical support team, etc. But no, this was no-choice accommodation, and she had to move.

She was moved to a new place in the previous city, 2 hours’ journey by taxi to her previous hospitals, and so was allocated yet a third set of hospitals, and again suffered a sharp crisis, and had to be treated by people who again did not have access to her medical records. In fact that third set of hospitals did not have the specialised equipment she needed to carry out her transfusions, because of medical deterioration, and so she had to travel 2 hours each way by taxi, at public expense, to the first hospital, and so her medical care was split. The new accommodation still did not provide her with access to a downstairs toilet.

The Committee will of course know that this is not just an individual saga, but represents the chaos which results where an outsourced organisation does not provide a simple way of receiving and acting on crucial and urgent information from those in s95 support.

I draw your attention to the following recent case in which a mandatory order was made against the Home Office, ordering the provision of suitable accommodation to an asylum-seeker with a severely disabled child: AYW & Anor, R (On the Application Of) v Secretary of State for the Home Department [2024] EWHC 3291 (Admin) (18 December 2024). The facts of the case clearly show the inadequacy of the terms of the accommodation contracts, in that, as in PQ’s case, no or no adequate attention was paid to the person’s individual requirements, and/or no or little attempt was made to satisfy them.

As I stated in my own conclusions at the beginning of these submissions, I do not think that contracts like the ones made with Clearsprings, etc, can be relied upon in a context of national shortage of social and low-cost housing, to provide adequate accommodation to an unknown number of people some of whom will require specialist provision. The organisations historically charged with this function have been local authorities – which probably could discharge these functions again, if funded sufficiently and given sufficient powers to build, let and manage enough accommodation (including for families already on their own housing waiting lists!) without profits being extracted for private gain, by entities who see asylum-seekers as an income stream. [9],[10],[11]

The Independent Chief Inspector of Immigration and Borders (ICIBI) stated in his 2024 report on asylum contingency accommodation:

5.28 The Home Office recognises that increasing the capacity of regular DA [dispersal accommodation SY] to meet demand is not feasible “as housing suitable for DA is in short supply, there is evidence of cross-government competition for the same housing stock, and securing this housing for DA is unhelpful for local authorities, some of whom have long waiting lists for social/affordable housing”. One senior manager suggested that the “strategic direction needs to be not the private rental sector; we need to be adding to the market rather than taking from it as the sector is so overheated.”