Pages 1--60 from DRAFT

Contents
1. Background -p 1 2. How paragraph 7A will work in practice
-Stage 1 -p 2 -Stage 2 -p 4
-Stage 3 (including the interview) -p 4 -Stage 4 (Issuing the certificate) -p 7
3. How will support actually be terminated (Stage 5) -p 9 4. Appeals and further representations -p 9
5. Local authorities -p10 6. What constitutes reasonable steps? -p 12
7. What constitutes a reasonable excuse? -p 13 8. Articles 3 and 8 of the ECHR -p 14
9. Keeping records/ management information -p 19 10. IS action after Stage 3 -p 19

Annex A -Text of section 9 -p 20 Annex B -Text of Schedule 3 -p22
Annex C -Flow chart of the section 9 process -p 29 Annex D -Stage 1 letter -p 30
Annex E -Stage 2 interview letter -p 33 Annex F -Areas of questioning for Stage 3 and interview pro forma -p 36
Annex G -Stage 3 certification warning letter -p 40 Annex H -Stage 4 certification/ termination letter -p 44
Annex I -Stage 4 support continuation letter -p 50 Annex J -Reconsideration letter -p 54

1. Background 1.1 Section 9 of the Asylum and Immigration (Treatment of Claimants, etc.)
Act 2004 inserts a new paragraph 7A to Schedule 3 of the Nationality, Immigration and Asylum Act 2002 and thereby renders ineligible for the types
of support and assistance listed at paragraph 1 to that schedule a person (a failed asylum seeker with family) whom the Secretary of State certifies that in
his opinion has failed, without reasonable excuse, to take reasonable steps either to leave the United Kingdom voluntarily or to place himself in a position
in which he is able to leave the United Kingdom voluntarily. The paragraph applies to those who continue to be classed as asylum seekers, even once

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their claim has failed, for the purposes of asylum support because their household contains a dependent child who is under 18.
1.2 Where the Secretary of State issues a certificate, the family becomes ineligible for support 14 days after its receipt by the asylum seeker.
1.3 The provision is designed to encourage families to leave the UK voluntarily and/ or comply with re-documentation procedures which will enable
them to leave the UK voluntarily.
1.4 The text of section 9 and paragraph 7A is at Annex A. The text of Schedule 3 is at Annex B.

1.5 There is a read-across to section 35 of the 2004 Act which provides that the Secretary of State may require a person to take specified action if he
thinks that that will or may enable a travel document to be obtained, the possession of which will facilitate the person's removal. A person who fails,
without reasonable excuse, to comply with a requirement of the Secretary of State commits an offence and may be liable on conviction to up to two years
imprisonment and/ or a fine.
1.6 Guidance on how section 35 operates can be found in EPU 09/ 04 which is available on Horizon. In family cases, staff are advised to consider which
course of action is most appropriate to secure the family's co-operation: the use of section 9 or section 35. It is assumed that, in most cases, section 9 will
be used before recourse is made to section 35 but this decision must be based on a careful consideration of each individual case.

2. How section 9 and paragraph 7A will work in practice 2.1 A flow chart outlining the steps to be taken is at Annex C.
2.2 The following procedure must be followed in its entirety before a certificate is issued:
2.3 Once the principal applicant's asylum claim has been fully determined (and he/ she has exhausted all appeal rights) , Immigration Service (IS)
Enforcement & Removals will allocate appropriate cases to Local Enforcement Offices (LEOs). Where removal can be effected promptly – for
example, where the family already has appropriate travel documentation – removal action should commence (in the usual way). Where removal cannot
be effected promptly – for example, where the family does not currently have appropriate travel documentation – the LEO should initiate action under
paragraph 7A as follows.
Stage 1
2.4 Before beginning the paragraph 7A process, the following case details must be checked:

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. Has the asylum seeker's claim for asylum been determined? If there are
outstanding representations etc, these must be dealt with, in case removal is not considered appropriate.

. Is the family in possession of travel documents, or removable on an EU or
Chicago Convention letter? If so, removal action should be taken. . Is the family eligible for the Indefinite Leave to Remain (ILR) exercise? If

so, the paragraph 7A process should not be initiated until the ILR issue has been resolved.
. Is the family in receipt of NASS or LA support? If so, the paragraph 7A
process may be appropriate.

2.5 The LEO must send [by Recorded Delivery where possible] a letter to the family at their last known address, copied to the family's legal representative if
they have one (and they are still on the record as acting) and the local authority Social Services Department Director of Children's Services. This
letter should be sent as soon as the LEO has decided to initiate action under paragraph 7A. Alternatively, the letter may be handed to the family during the
course of their usual weekly reporting, and copied to the representative by post. It is important that there is a record that the family have been sent or
handed the letter, and details of the date of posting and address to which the letter was sent should be maintained on file. If it has not already begun,
redocumentation work should commence at this stage, using the IS Documentation Unit (ISDU) in the usual way.

2.6 The letter will inform the family that they must now leave the UK, and explain how they can leave voluntarily. The leaflet "Offering Asylum Seekers
Help and Advice to Return Home [in their own language where possible -see below] on the International Organization for Migration (IOM) Voluntary
Assisted Return and Reintegration Programme (VARRP]) must also be enclosed. The letter will set out that support may be withdrawn if the family
fails, without reasonable excuse, to take reasonable steps to either leave the UK voluntarily or to place themselves in a position in which they can do so.
The [adult] family members would be placed on weekly reporting restrictions, where possible, if they are not already subject to these measures, so that
progress on the case can be checked as the family comes to report. The text of the Stage 1 letter to be used is at Annex D.

2.7 The IOM leaflet "Offering Asylum Seekers Help and Advice to return Home" is available in the following languages:
English Albanian Arabic Chinese French Romanian Russian Pashto
Tamil Turkish Farsi Urdu Spanish Portuguese

It can be down loaded from the IOM website www. iomlondon. org
2.8 The IND leaflet "Important Information" which advises recipients in 20 languages that the accompanying letter is important and suggests that they
have it translated if they do not understand it, should also be sent to the family

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with the Stage 1 letter and the IOM leaflet to ensure as far as possible that the content of the letter and its importance are understood.
Stage 2.
2.9 A period of three weeks should be allowed after sending the Stage 1 letter to allow the family time to take steps to leave the UK etc. Progress
should be monitored as the family reports weekly, and reminders given as to what is expected of them.

2.10 If, after three weeks, it appears the family has failed, without reasonable excuse, to take reasonable steps either to leave the UK voluntarily or to place
themselves in a position in which they can do so, a letter should be sent to or handed to the family during their regular reporting, copied to the legal
representative, inviting them for an interview (example of Stage 2 interview letter attached at Annex E). The interview will take place normally at the
Reporting Centre but may also occur at the family's accommodation at the discretion of the LEO.

2.11 The letter again encloses the leaflet "Offering Asylum Seekers Help and Advice to Return Home" (in the family's own language where possible -see
above) and explains that support may be withdrawn if the family fails, without reasonable excuse, to take reasonable steps either to leave the UK voluntarily
or place themselves in a position in which they can do so. The IND leaflet "Important Information" should again be enclosed with the Stage 2 letter. The
letter should be copied to the family's representative if they have one, and to the local authority Social Services Department Director of Children's Services
as before.
2.12 If it appears that the family is making arrangements to leave the UK e. g. by co-operating fully in the completion of forms for applying for travel
documents, progress should continue to be monitored when they come to report, and the Stage 2 letter should only be sent if it appears that the family
have stopped taking steps to leave the UK.

Stage 3
The interview
2.13 The Immigration Officer (IO) must remind the family that they are not entitled to remain in the UK, that they must leave the UK and that support may
be withdrawn if the family fails, without reasonable excuse, to take reasonable steps eiher to leave the UK voluntarily or place themselves in a position in
which they can do so. The IO should explain clearly that withdrawal of support means the family will not be provided with accommodation or
subsistence support. The text of the warning will be standard and must be read to the family -see Annex F. A full written record of the interview must be
made and the fact that the warning has been given must be recorded.

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2.14 The IO should point out the advantages of the voluntary return programme i. e. that it is more dignified, less traumatic for the children and
there is an option of receiving reintegration assistance.
2.15 The IO should ask what steps the family has taken to leave the UK, following notification that their asylum claim had been unsuccessful, and the
Stage 1 and Stage 2 letters. He/ she should ascertain the reason for any delay in making arrangements to leave the UK, as set out in the section on
'reasonable steps and excuses' below. Where appropriate, the family may be warned that they may be liable to prosecution under section 35 of the 2004
Act if they fail to take a specific action required of them to enable a travel document to be obtained which would facilitate their removal from the UK

2.16 The family should be informed that if they wish to make their own application for travel documents i. e. with no assistance from IND, they are
under no obligation to disclose to the embassy or High Commission details of their immigration history or of any applications to stay in the UK. Written
confirmation of an approach to the embassy or High Commission will be required within the same two week period provided for submission of other
evidence.
2.17 The family should be invited to put forward all details of their personal circumstances which may affect a decision to withdraw support. The family
should be asked to provide details of any medical treatment or counselling that they are undergoing, and, if so, documentary evidence to indicate the
nature of the condition and the likely duration of the treatment or counselling. [See Annex F] This information will be required both to enable a decision to
be made on whether to enforce removal and if so when, and in relation to possible termination of support. The fact that a family member is receiving
medical treatment will not necessarily mean that they will not be required to leave the UK until treatment has been completed. Neither will it mean that the
family is unable to apply for travel documents etc, even if there will be a delay in leaving.

2.18 The IO should assess what other support networks exist for the family e. g. members of the extended family or friends to whom they could turn for
support or accommodation in the UK, and what financial resources they have available to them.

2.19 The information obtained should be incorporated in the written record of the interview. A pro forma giving broad areas of questioning is attached at
Annex F, but the interviewing officer will need to tailor the questions according to the particular circumstances of the family, and the responses to earlier
questions.
2.20 The interview should be on the basis that the family has no claim to stay in the UK and must now leave. It should, as noted above, seek to identify the
steps the family have taken to leave or their reasons for not having done so. It should not be an opportunity for the family to set out reasons why they

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should stay, unless those are reasons why they have not yet left. Nevertheless it is possible that the family will put forward reasons why they
should be permitted to remain in the UK. In such circumstances, full details must be sought, including documentary evidence where appropriate. A period
of two weeks should be given for the submission of any further information or evidence. Any fresh claims or further representations should be addressed in
the normal way before returning to the section 9 process where appropriate.
2.21 Any issues raised at interview must be addressed in detail in the Stage 3 warning letter. A copy of the interview notes must be given to the applicant at
the end of the interview.
2.22 Where, after the interview, or during any stage of monitoring the case after interview, the IO believes the family has failed without reasonable
excuse to take reasonable steps to leave the UK voluntarily or to place themselves in a position in which they can do so, a further letter (Stage 3
warning letter) should be sent to the family (template at Annex G). This should be copied to the legal representative if there is one and to the local
social services authority (Director of Children's Services) for the area in which the family is residing.

2.23 The letter will set out that, on the basis of information supplied so far, the IO considers that the family has failed, without reasonable excuse to take
reasonable steps either to leave the UK voluntarily, or to place themselves in a position in which they can do so. The letter will add that failure to take these
steps, without reasonable excuse may lead to withdrawal of support and make clear that the family will have 7 days to submit any evidence that they are now
taking steps to leave, or reasons why they are unable to take such steps. The IOM leaflet "Offering Asylum Seekers Help and Advice to Return Home" (in
the family's own language where possible -see above) should again be enclosed, together with the IND leaflet "Important Information" to encourage
the family to have the letter translated if they do not understand it.
2.24 Where no information is received within the 7 days or if any new information does not provide a reason to change the decision, the IO should
certify (i. e. record the decision on the case papers, and provide the required wording) that the family has failed, without reasonable excuse, to take
reasonable steps to either leave the UK voluntarily or to place themselves in a position in which they are able to do so.

2.25 Generally speaking, if the family has travel documents but has not left the UK (and has no reasonable excuse) certification will be on the
basis that they have failed to take reasonable steps to leave the UK voluntarily. If the family is not in possession of travel documents (and
has no reasonable excuse for failing to obtain them or assist with steps to obtain them on their behalf) certification will be on the basis that they
have failed to place themselves in a position in which they can leave the UK voluntarily.

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2.26 The case papers should then be passed to the [Paragraph 7A Team] in the National Asylum Support Service (NASS), including copies of all letters
sent to the family and the written record of the interview. The certificate must not be sent to the family at this stage. The text of the certificate and some
suggested wording for reasons for it are at Annex G, but it will still be necessary for caseworkers to set out the reasons for that decision, and reflect
properly the family's circumstances and any actions which it would have been reasonable for them to have taken.

2.27 It is important that the person who gathers the information/ interviews the family is the same person who issues the certificate.
2.28 If the family contacts IS after the case has been passed to NASS (but before NASS has sent the certificate), and IS is satisfied that the family is now
taking reasonable steps to leave the UK etc, IS will notify NASS accordingly. The case should be returned to IS (without the certificate being sent) and IS
will continue action on the case.
Monitoring
2.29 Where the family is taking reasonable steps to leave voluntarily or placing itself in a position in which it can do so (or has a reasonable excuse
for not doing so), no certificate will be issued (and support will, therefore, continue). It is essential that cases are monitored closely. For example, it will
not be sufficient for the family to have applied for documentation, but then fail to attend any subsequent interviews or appointments which are required as
part of the re-documentation process. Equally, if, after claiming to have approached their embassy or High Commission, the person claims that they
were asked questions which they did not wish to answer e. g. about their asylum claim, evidence must be sought, and where appropriate, further
enquiries should be made by IS. LEOs must follow up cases [weekly], to coincide with reporting arrangements.

Stage 4.
2.30 On receipt of the case papers, the [Para 7A Team] in NASS will consider whether support is necessary to avoid a breach of a person's rights under the
ECHR. This consideration will be based on the information about the family's circumstances provided at the interview and any other information submitted
by the family. NASS may decide that it cannot make a decision without further information and may need to make further enquiries with the family or arrange
to visit it. Further information about the application of the ECHR to paragraph 7A is at Section 7 below. In all cases where IS has prepared a certificate, and
before the ECHR assessment is made, the caseworker should inform the local authority that NASS is considering whether support is necessary to avoid a
breach of the ECHR, and ascertain, as far as possible, what support they can provide within the framework of the legislation. NASS should include this in
their consideration of the ECHR issues.

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2.31 Where NASS concludes that support is not necessary to avoid a breach of a person's rights under the ECHR, a final check (by telephone) should be
made with IS to see whether the family has begun to co-operate with arrangements for their removal. If IS are satisfied that they have, the papers
should be passed back to IS for action. If the family have not begun to co-operate, a further letter should be sent to the family, copied to the legal
representatives and the local authority Director of Children's Services, incorporating the certification paragraph and the reasons for it. The letter will
explain the basis for NASS' decision that it does not believe that support is necessary to avoid a breach of a person's Convention rights and will advise
the family of its right of appeal to the Asylum Support Adjudicator (ASA).
2.32 If the family is in receipt of asylum support from a local authority under the Interim Provisions there is no right of appeal to the ASA. In such cases,
the certification process is the same, in that NASS will issue the certificate, but it will be for the local authority to determine whether, notwithstanding the
family's ineligibility for support, it must still provide support to avoid a breach of a person's Convention rights. The local authority's decision on interim
support would be subject to JR, as would the IS decision to certify.
2.33 The letter must make clear that support will cease 14 days after receipt of the certificate by the asylum seeker. The relevant appeal forms must be
included with the letter, and the IOM leaflet "Offering Asylum Seekers Help and Advice to Return Home" (in the family's own language where possible -
see above) should again be included, together with the "Important Information" leaflet.

2. 34 If, after the certificate has been sent to the family by NASS, it contacts either IS or NASS to make it known that it is now taking steps to leave the UK,
support may not be reinstated unless it is necessary to do so to avoid a breach of a person's rights under the ECHR. Cases must be kept under
active review by NASS and IS after the issue of the certificate, as, if it is accepted that Article 8 is engaged, but that a breach was originally justified,
the balance of circumstances in the case may have changed if the family has begun to take steps to leave etc.

2.35 Where NASS decides that support must continue to avoid a breach of a person's rights under the ECHR, a letter should be sent to the family and
copied to the legal representatives and the local social services authority explaining this and the basis on or extent to which support will continue i. e.
NASS could decide to end or continue only a part of the asylum support e. g. the accommodation and/ or the subsistence. Any reduction in the level or
nature of support will attract a right of appeal in NASS supported cases.
2.36 An example of the letter is at Annex I. This letter will include the certificate but will set out that, in the particular circumstances of the case,
support will continue. Such cases must be carefully monitored (by IS for removal purposes, including the possibility of section 35 action if appropriate,
and by NASS for support purposes).

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2.37 Any request for a reconsideration of the Stage 4 decision should be resolved using the template at Annex J, copying the decision to the legal
representatives And the local authority social services department.
3. How will support actually be terminated (Stage 5)?
3.1 NASS will respond to the appeal to the ASA in the normal way, and will terminate support and arrange eviction where appropriate, in accordance with
standing instructions. NASS must inform the local authority of the outcome of the appeal. The local authority will need to make a thorough assessment of
the needs of each of the children concerned and decide what support they can provide within the framework of the legislation, taking into account each
child's human rights considerations.. As part of the termination process, the voluntary sector would be informed via their 'one stop' services.

4. Appeals and further representations
4.1 Where a supported person appeals to the ASA under section 103 of the 1999 Act, the Asylum Support Adjudicator can:
(i) annul a certificate; (ii) require the Secretary of State to reconsider the matters certified;
(iii) require the Secretary of State to reconsider the matter; (iv) substitute his decision for the decision appealed against; or
(v) dismiss the appeal.
4.2 NASS [Para 7A Team] will need to consider the precise terms of the determination before deciding on further action. If the appeal is allowed, it
may be necessary to reconsider certain issues before making a fresh decision, or reinstate support if the certificate is annulled. The Local Authority
should be informed immediately if an appeal is allowed in order to ensure that they do not provide support in cases where NASS support is to continue.

4.3 Removal should not be delayed pending an appeal to the ASA, because any appeal relates solely to the issue of certification and
support, and will not normally cover issues relating to the asylum claim or removability.

4.4 Where a (previously) NASS supported family makes further representations about the withdrawal of support, or re-applies for section 95
support, NASS (with assistance from IS as necessary) will consider these requests within 24 hours, faxing any necessary papers to IS if the request
from the family relates to an immigration decision rather than being one relating solely to support. If IS have been consulted on such cases, IS will
provide (by return fax) appropriate wording and reasons for NASS to use in the decision letter. All matters raised must be taken into account and included
in the decision letter. The primary reason for refusal would be that they are not eligible for support because the Secretary of State has issued a certificate
under paragraph 7A of Schedule 3. However, NASS will still need to consider whether, notwithstanding that, support is necessary, and if so to what
extent, to avoid a breach of a person's rights under the ECHR. Families

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previously supported by local authorities under the Interim Provisions who make representations about the LA's decision to withdraw that support should
be referred to the LA, and NASS should take no other action in replying to such representations.

4.5 The only grounds on which support should be reinstated after a certificate has been issued are when the information and evidence
provided indicate that support is necessary to avoid a breach of a person's ECHR rights (see section on Articles 3 and 8 of the ECHR).
Cases must be kept under active review by NASS in case, due to a change in circumstances, the balancing exercise required for the ECHR consideration
produces a different conclusion on whether any breach of Article 8 continues to be justified, or Article 3 is engaged when it was not previously.

4.6 A decision that a person does not qualify for asylum support (under section 95 IAA) will attract a right of appeal to the Asylum Support Adjudicator.
4.7 The template at Annex J may be used for replying to representations, individualised as necessary and enclosing the appropriate appeal forms.
4.8 If it becomes clear that the certificate has been issued on a misconceived or mistaken basis e. g. that the IO thought that the applicant had not attended
an interview when he had, the decision should be withdrawn and remade.
5. Local authorities
5.1 The Immigration Service must copy all letters to local authorities Social Services Departments at each stage of the process. Subject to any data
protections issues, local authorities should check their records and supply the NASS [para 7A team] with information on any family members if they are
known to the local authority, and the information will have a bearing on the case when NASS make the decision on whether support should be withdrawn.
NASS will not normally delay making their decision pending the arrival of any information from the local authority, as details sufficient to make an informed
decision on the ECHR aspects should have been obtained at the Stage 3 interview, or subsequently if NASS considered that relevant information was
missing. However, if the caseworker is in any doubt, he/ she should contact the Social Services Department as necessary.

5.2 If and when the Immigration Service decides to forward the case on to NASS to consider the human rights issues, a separate assessment should be
made for each family member, including the children concerned. In making its decision NASS must take account of the provision which the local authority
will be able to provide legally within the scope of Schedule 3 of the Nationality, Immigration and Asylum Act 2002. Unless they have established that there is
an independent source of support, the only option available within restrictions of Schedule 3 is likely to be to accommodate the child separately from adult
family members under section 20 of the Children Act, 1989. What view the local authority may take as whether this constitutes an ECHR breach is not
relevant to NASS' decision.

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5.3 If NASS' decision is that support should be withdrawn, the local authority will then need to make its own assessment as to how to exercise its powers.
Under the terms of Schedule 3, it cannot use its power under section 17 to provide assistance to adult members of the child's family except in so far as it
is necessary to prevent a breach of the child's ECHR rights. The local authority will have make its own assessment and will not necessarily reach
the same conclusion as NASS.
5.4 Any decisions made should be based on the facts as they relate to each individual case. The local authority should consider the following when
making decisions:
(1) Following a full assessment of the child's needs, the local authority should decide whether they can provide Section 20 or Section 17 support to the
child only; or (2) Whether it is necessary to provide support for any other member of
the child's family under section 17 in order to prevent a breach of the child's human rights

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6. What will normally constitute reasonable steps?
6.1 The following are guidelines for what may constitute "reasonable steps" either for a family to leave the UK voluntarily, or to place themselves in a
position in which they can do so. The list is not intended to be exhaustive.
. Requesting IND to approach the authorities of their own country or any
other country where they will be admissible to obtain travel documents on their behalf.

. Providing correct and complete information to IND and/ or the relevant
Embassy or High Commission to enable IND or the Embassy or High Commission to obtain travel documentation on the family's behalf.

. Attending appointments/ interviews with IND and/ or the relevant Embassy
or High Commission to obtain travel documentation or otherwise to pursue departure from the UK.

Approaching the authorities of their own country, or any other country where they will be admissible, to obtain travel documents i. e. with no assistance from
IND. The family should provide evidence that this has been done. This may be through a copy of a letter from the family to the Embassy or High
Commission, or from the Embassy or High Commission to the family, and/ or details of a contact in the Embassy or High Commission to confirm the actions
that have been taken. Applying for voluntary return. The family may have evidence that an
application to the International Organization for Migration (IOM) (or other group) has been made, or alternatively, this information can be found on CID,
as the IOM forward this information to IS. Where the family has yet to apply but has indicated that it has contacted the IOM about the possibilities, the
family should be given [1 week] in which to apply, and IS should allow a further week for the confirmation from IOM before further action is taken.
. Purchasing one way tickets for the family or requesting IS to obtain these
at public expense

6.2 It is important to note that taking reasonable steps is a fluid or ongoing process. The family must be able to demonstrate that it is continuing to take
such steps as are necessary. For example, it will not be acceptable for the family to attend one appointment with an Embassy or High Commission, but
then to fail to attend any further appointments that are needed. Similarly, it will not be acceptable to rely indefinitely on an application to the IOM if the
family fails to respond to any requests for information made by the IOM, decides against voluntary departure as a result of discussion with the IOM and
its associated NGOs, or the IOM application lapses for any other reason. IS must monitor progress of cases closely, and must record case details in
accordance with standing instructions to ensure that families do not prolong their support when there is no intention of leaving under the VARRP.

6.3 Although it is desirable for IND to be informed by a person that he/ she is leaving the United Kingdom voluntarily, there is no obligation on that person to
do so. However documentary evidence will be required and support will be timed to end on the planned departure date should IND be aware of one.

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All evidence of the above MUST be recorded in the main applicant's "person notes" field on CID AND minuted on the paper file whenever evidence is
received. This is to facilitate full and careful consideration of the facts regarding the withdrawal of support. See the 'Keeping records/ management
information' section.

7. What will normally constitute a reasonable excuse?
7.1 The following are guidelines for what may constitute a "reasonable excuse", either for failing to take steps to leave the UK voluntarily, or to place
themselves in a position in which they are able to do so. Again, the list is not intended to be exhaustive. All excuses put forward must be considered
carefully.
. To need emergency medical care so as to be:
(a) unable to attend an appointment or interview (b) unable to provide information

and the individual can substantiate such a claim
A medical certificate MUST be provided in these circumstances within a week of the interview, clearly setting out the nature of the complaint,
and its likely duration. An adult family member claiming that they are/ were unable to inform IND of these circumstances or to attend an
appointment in the main applicant's place needs to be able to show exceptional circumstances as satisfactory evidence of this. This could
be that illness or injury incapacitated them AND they were unable to make contact with IND AND no other person was able to make contact
on their behalf.
To be unable to travel to an interview at an embassy or consulate due to problems with transport (e. g. a rail strike) and can substantiate such a claim.
Evidence must be provided within a week. . In most cases, a reasonable excuse of this nature may explain why a
family is temporarily unable to take reasonable steps. It is important for the immigration officer to monitor the position through the weekly reporting
arrangements.

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8. Application of Articles 3 and 8 of the ECHR to Para 7A
8.1 Although paragraph 7A adds 'failed asylum seeker with family ' to the categories of person who are ineligible for the types of support listed in
paragraph 1 of Schedule 3 to the 2002 Act, paragraph 3 provides that paragraph 1 does not prevent the exercise of a power or the performance of a
duty if, and to the extent that, its exercise or performance is necessary for the purpose of avoiding a breach of a person's rights under the European
Convention on Human Rights (ECHR or Convention Rights).
8.2 Consequently, ECHR aspects must be taken into account in all cases considered by NASS for termination of support under the paragraph 7A
process. The issue is not whether a person's Convention rights will be breached if they return to their country of origin, but whether continued
support is necessary to avoid a breach of a person's Convention rights. If a family wishes to assert that they cannot return or be required to return to their
country of origin (and that therefore support must continue), a decision must be made as to whether that will be treated as a fresh claim or further
representations, which must then be considered in accordance with standing instructions.

8.3 Caseworkers should be aware that Articles 8 and 3 may be the most relevant, and must undertake a careful evaluation of the case, drawing on
information gained during the Stage 3 interview, together with any other information on the applicant's file. It may be necessary for the family to be re-interviewed
if there is insufficient information on which to make a sound decision. Decision letters should reflect this careful evaluation, showing that
all relevant factors have been considered for each member of the family. The Article 8 balance should be undertaken and documented in the decision letter
even in cases where NASS considers that Article 8 is not engaged.
8.4 The duty under paragraph 3 is a continuing one so if, for example, a family which has refused to date to take steps to comply with re-documentation
starts to do so, any interference or continued interference may no longer be justified. That is because the balance may have changed (i. e. if
there was an interference it may no longer necessarily be a proportionate one).

Process
8.5 Immediately on receipt of the certificate from IS NASS must consider whether continued support is necessary to avoid a breach of a person's
Convention Rights. In particular caseworkers need to consider first whether Article 8 (or Article 3) is engaged and, if so, whether withdrawal of support
would result in an unjustified interference with a person's Article 8 rights (and/ or a breach of Article 3). The decision letter must set out in full the
decision reached, and in particular with regard to Article 8, the balance that has been carried out. Article 8 is a qualified right and so an interference with
it may be justified if it is necessary in pursuit of a legitimate aim and proportionate to that aim. Even in those cases where caseworkers do not

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believe that Article 8 is engaged it is advisable to deal with the balance in case it were. This is considered more fully below.
8.6 Caseworkers will not only be required to make a human rights assessment when IS issues its certificate, but also whenever an applicant
and/ or one of his dependants claims that support must be resumed so as to avoid a breach of Convention Rights and/ or makes a fresh application for
support.
8.7 Article 8
(1) Everyone has the right to respect for his private and family life, his home and his correspondence.

(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and
is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the
prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

8.8 Article 8 is most likely to be relevant in these circumstances because there will, by necessity, be children involved. Article 8 protects the right to
respect for private and family life, although it is important to note that it does not guarantee a right to a home; nor does it impose a positive obligation to
provide financial assistance to support a person's family life or to ensure that individuals may enjoy a family life to the full or in any particular manner.
However, if the withdrawal of support means that the family can no longer enjoy a family life together, such that any children in the family may need to
be looked after by a local authority then, in circumstances in which Article 8 is engaged, that will be an interference and caseworkers will need determine
whether it is a justified one [see further below].
8.9 The certificate from IS will have been issued on one of two bases: (i) that the [family] has failed without reasonable excuse to take
reasonable steps to leave the UK voluntarily; or (ii) that the [family] has failed without reasonable excuse to take
reasonable steps to place itself in a position in which it can leave the UK voluntarily (respectively described below as the first and
second heads).
8.10 When making your decision under Article 8 it is important that caseworkers are aware of the basis on which the certificate has been or was
issued and, importantly, IS' reasons for issuing it and the family's behaviour and response thus far.

8.11 Essentially caseworkers must decide the following:
(i) is Article 8 engaged

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(ii) if so, will the withdrawal of support constitute an interference with it; and
(iii) if so, can that interference be justified
8.12 Any interference must also be in accordance with the law, but this will be the case as Schedule 3 requires the withdrawal of support to those who fall
within the various classes of ineligible person.
Is Article 8 engaged?
8.13 In cases where a family is free to return home, and is genuinely able to do so, it is unlikely that Article 8 will be engaged. This is because any
interference with Article 8 will be as a result of the family's failure to leave the UK rather than the decision to withdraw support. 1 This is most likely to be the
case for those who are issued with certificates on the first head above, but may also be the case for those for whom a certificate is issued under the
second head. In the case of the latter, any interference results from the family's failure to take steps, for example, to comply with redocumentation, not
from the decision to withdraw support (although note the position above regarding the continuing duty under paragraph 3 if an applicant does start co-
operating/ complying).
8.14 For certificates issued under the first head, the first issue that caseworkers need to consider, therefore, is whether the family can return,
albeit to date it has failed to do so. This must be a genuine choice in the sense that caseworkers must consider any impediments to return, particularly
temporary ones, such as a temporary illness or condition which prevents travel, which have arisen since the certificate was passed to NASS (or since it
was served depending on when the assessment is being carried out).
8.15 If the certificate has been issued under the second head, caseworkers will also need to consider any indications the family gives of its intended future
behaviour, and its behaviour hitherto may be relevant to this. If an undocumented family has indicated hitherto that it will not co-operate with re-documentation
and it will not do so in the future, Article 8 is unlikely to be engaged on the basis given above. Even if it were, the interference resulting
from the withdrawal of support may be justified on the basis that it is necessary in pursuit of a legitimate aim (effective immigration control being
necessary for the economic wellbeing of the country) and proportionate to that aim.

Will the withdrawal of support constitute an interference and if so, can that be justified (the Article 8 balance)
8.16 In all cases, even in those when you do not believe that Article 8 rights are engaged, you should carry out an Article 8 balance. The following may
be relevant (under both heads depending on the facts) as to whether there is an interference (but all cases must be considered on their own facts):

1 R( K) -v-LB Lambeth -'A state owes no duty under the Convention [whether under Article 3 or 8] to provide support to foreign
nationals who are permitted to enter its territory but who are in a position freely to return home'

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(i) whether the family can return home [see above] (ii) the number and ages of any children
(iii) any physical or mental impairment of any member of the family (iii) whether there any elderly members of the family
(iv) whether there are one or two parents (v) the length of time it will take for a travel document to be issued (if one
has been applied for) or other arrangements to be made for return
8.17 If there is an interference caseworkers need to decide whether it is both necessary and proportionate to the legitimate aim. Relevant factors to
consider here are:
(i) the need to maintain the integrity of the immigration and asylum system;
(ii) the consequences of the parents' refusal to take steps 2 (i. e. removal may be postponed indefinitely);
(iii) the cost of providing support, perhaps indefinitely; (iv) the social consequences for those concerned, and for the wider
community, of having a group of people with no settled status; (v) the impact on social cohesion of families with no right to remain staying
in the country at public expense and not taking reasonable steps to leave;
(vi) the fact that the family have been told in detail the likely consequences of a refusal to return/ to co-operate with documentation.

8.18 The balance carried out and decision reached should be explained in the decision letter.
8.19 It may be that a child's rights will be interfered with in cases where it is their parent who has not co-operated and in such cases caseworkers will
need to consider very carefully those rights and likely consequences of the withdrawal of support. If, for example, the child will need to be looked after by
the local authority if support is withdrawn, caseworkers must consider whether that interference (i. e. the separation from its parents) will be justified.

8.20 In all cases where you are considering the withdrawal of support caseworkers should liaise with the local [social services] authority to consider
what its actions might be if support is withdrawn from the family. At the very least, the local authority should be informed that this is a possibility -if it is not
aware already.
8.21 It is important that all decisions are properly made and reasoned. If caseworkers are in doubt about any information that the family has given or
need further information, further enquiries of the family should be made, either via IS or by NASS. A further interview may be necessary. If the NASS
caseworker has not been present at any of the earlier interviews, he/ she

2 This could either be steps to return home, or steps to acquire documents.

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should not make decisions based on the family's credibility. This may only be done if the caseworker has had a chance to assess its credibility for
him/ herself, and put to it any adverse conclusions that are likely to be drawn so that it may have an opportunity to rebut them.

Article 3
No one shall be subjected to [torture or to] inhuman or degrading treatment or punishment

8.22 It must be remembered that Article 3 rights are absolute (i. e. a breach can never be justified in the way that an interference with Article 8 might be).
8.23 The cases below have both concerned whether support is necessary to avoid a breach of Article 3 when a decision is made under
s55( 1) Nationality, Immigration and Asylum Act 2002 that a claim for asylum was not made as soon as reasonably practicable after arrival in
the UK. The asylum seekers in those circumstances are denied access to work and also by definition have outstanding claims and cannot
therefore be lawfully removed.
8. 24 In Q v SSHD 2003 the Court of Appeal held that the regime imposed on asylum seekers whereby they cannot work but cannot lawfully be removed
amounts to treatment for the purposes of Article 3.
8. 25 In Limbuela and ors v SSHD 2004 the Court of Appeal held by majority that a decision which compels a person to sleep on the streets or elsewhere in
the open without basic shelter and without any funds is normally inhuman and degrading.
It is not enough for a person to assert that he has no money and [will have to] sleep rough, he must also adduce evidence to show that other support is not
available or he must be someone who is particularly vulnerable. Article 3 may be engaged by a particular vulnerability in the individual or external
circumstances which make it impossible for him to find food and other basic amenities (and in this regard night time shelter will be a basic amenity
particularly in winter and bad weather).
What does this mean in relation to those certified under [paragraph 7A][ section 9]

8.26 In most cases, it is unlikely that the withdrawal of support, without more, will amount to treatment for the purposes of Article 3 or that if it did, it would
result in a different response to that which would be required under Article 8 in any event (bearing in mind always however that Article 8 is a qualified right
whereas Article 3 is an absolute one). This is because, as above, the family is either free to return home but has failed to do so, or it has failed, for example,
to comply with re-documentation, and if suffering results it is caused by this and not the withdrawal of support per se.

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8.27 The continued denial of support in circumstances in which a family has applied to leave the UK voluntarily, has applied for travel documents, or
started co-operating with attempts to obtain travel documents on its behalf could amount to treatment however, as the family, for the moment at least is
not able to leave the United Kingdom. In these circumstances you will need to consider whether any other means of support are available to the family: it
might, for example, be staying with and being looked after by friends or relatives, in which case support is not necessary to avoid a breach of Article 3
(although it may be under Article 8 if the family has been separated -see above).

9. Keeping records/ management information
9.1 Detailed records of all dates and events in the process must be kept on the dedicated section 9 database, so that the Implementation Team can
evaluate the effectiveness of the process. Many of the required fields already appear on existing systems, but must be completed on both the section 9
database and on existing systems in the usual way.

10. IS action after Stage 3 10.1 The case will be referred to NASS for a decision on whether support
should be terminated once IS has completed Stage 3, but IS will be required to continue action on the case in accordance with standing instructions on
contact management, absconding, updating CID etc. IS should also continue to monitor any arrangements which the family has begun to make for
departure, and inform NASS accordingly, in case NASS are required to make a fresh decision on whether support is necessary to avoid a breach of a
person's ECHR rights given any change in the family's circumstances.

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Annex A
Section 9 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004

9 Failed asylum seekers: withdrawal of support
(1) In Schedule 3 to the Nationality, Immigration and Asylum Act 2002 (withholding and withdrawal of support) after paragraph 7 insert-

"Fifth class of ineligible person: failed asylum-seeker with family
7A (1) Paragraph 1 applies to a person if-(a) he-

(i) is treated as an asylum-seeker for the purposes of Part VI of the Immigration and
Asylum Act 1999 (c. 33)( support) by virtue only of section 94( 3A) (failed asylum-seeker
with dependent child), or (ii) is treated as an asylum-seeker for the
purposes of Part 2 of this Act by virtue only of section 18( 2),
(b) the Secretary of State has certified that in his opinion the person has failed without reasonable excuse to take
reasonable steps-(i) to leave the United Kingdom voluntarily, or
(ii) to place himself in a position in which he is able to leave the United Kingdom
voluntarily, (c) the person has received a copy of the Secretary of
State's certificate, and (d) the period of 14 days, beginning with the date on which
the person receives a copy of the certificate, has elapsed.
(2) Paragraph 1 also applies to a dependant of a person to whom that paragraph applies by virtue of sub-paragraph (1).

(3) For the purpose of sub-paragraph (1)( d) if the Secretary of State sends a copy of a certificate by first class post to a
person's last known address, the person shall be treated as receiving the copy on the second day after the day on which it
was posted.
(4) The Secretary of State may by regulations vary the period specified in sub-paragraph (1)( d)."

(2) In paragraph 14( 1) and (2) of Schedule 3 to the Nationality, Immigration and Asylum Act 2002 (c. 41) (local authority to notify Secretary of State)
for "paragraph 6 or 7" substitute "paragraph 6,7 or 7A".

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(3) No appeal may be brought under section 103 of the Immigration and Asylum Act 1999 (c. 33) (asylum support appeal) against a decision-
(a) that by virtue of a provision of Schedule 3 to the Nationality, Immigration and Asylum Act 2002 other than paragraph 7A a