The right to have rights: Safeguarding children from destitution

Published 25 June 2015 / By Ben Gidley

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The legal framework that governs how a child in Britain with migrant parents can access welfare rights is incredibly complex: on the one hand, a century of immigration and nationality legislation that has created a seemingly endless proliferation of statuses and entitlements short of those of full citizens; on the other hand, the sedimentation of case law, of European and UK legislation on the rights of children and families, and the heritage of a welfare system based on universal provision.

While public opinion deals in terms such as “illegal migrant” and “bogus asylum seeker”, for service providers working with migrant families, the categories are infinitely more complicated. An alphabet soup of acronyms and initials that specify who has rights to which benefits – NRPF, s17, ARE, ILR, LLR, DVR, and many more – spell out the formula by which a family may claim housing benefit or carers allowance, or not, and under which conditions. Navigating this complexity is left to local authorities, and specifically to the frontline workers (“street level bureaucrats”, as they are called in the research literature) tasked with granting or denying families access to the welfare state.

Researching the right to have rights

Understanding how this works in practice – how different categories of migrant families do or don’t access social rights – has been a key question for researchers at COMPAS for some time now. A series of projects have explored this for different groups. Undocumented Children in the UK, funded by Barrow Cadbury, explored experiences and everyday lives of irregular migrant children in the United Kingdom, including experiences of schooling and pathways to work. Service provision to irregular migrants in Europe, funded by the Open Society Foundations, explored the extent of, and rationales for, entitlements to service provision for migrants with irregular immigration status in EU countries, mapping entitlements to health and education for both children and adults with irregular migration status (see the blogpost by Sarah Spencer and Nicola Delvino on the Italian part of the research). An OSF-funded pilot study explored city-level responses to those without entitlement, focusing on Berlin and Madrid (see Jonathan Price’s blogpost here). Exploring Migration: Research and Drama in Schools used drama and the findings of the ‘Undocumented Migrant Children in the UK’ project to explore how school students understand issues around irregular migrants (see Ida Persson’s blogpost here).

Across all of these projects, the research has shown that the imperative to ration finite welfare resources (with immigration status used a key criterion for inclusion in the space of entitlement) comes up against the negative consequences of exclusion on the lives of those (including children) who are excluded and on the communities of which they are part. The decision about formal criteria for inclusion is typically made at a national level and fueled by politicized national debates; the consequences of exclusion are typically carried at a local level and raise ethical more than political problems for local service providers.

The local state – often at the discretion of street level bureaucrats – finds itself in the position of deciding whether to apply a sticking plaster to injuries created by national law. National law seeks to create a “hostile environment” for irregular migrants; at a local level, “illegal immigrants” turn out to be “neighbours, colleagues, fellow pupils, friends, and family members”, as Jonathan Price puts it.

Safeguarding children from destitution  

Most recently, Sarah Spencer and Jonathan Price have completed a report, funded by the Nuffield Foundation, on local government responses to destitute children and families subject to immigration welfare restrictions. This report was the topic of our June COMPAS Breakfast Briefing, the penultimate in our 2014-5 series.

Photo by Paolo Cardullo, COMPAS Photo Competition 2011

Photo by Paolo Cardullo, COMPAS Photo Competition 2011

This report focused on one instance of the tension between national and local at stake in such issues: those families where the Home Office is making a decision on an immigration case, and so forbids the family from working or receiving benefits, but where the local authority is required to prevent destitution. Nearly 6000 children in England and Wales, many British-born, are in this kind of situation, known as “No Recourse to Public Funds”, living on hand-outs provided by local councils, typically less than £35 per family per week, and sometimes as little as £5.

Local variations, national solutions

Jonathan and Sarah showed that these families are unevenly distributed: 61% are in London. Particular nationalities are heavily represented – in particular Jamaican (especially in London) and Nigerian – but that several other nationalities are present too, including from some parts of Europe (e.g. Czech).

A lot of families are in this situation for relatively short period (about a third for less than six months, but nearly another third for up to a year) but many experience the limbo of NRPF life for much longer time periods (well over a third for 1-3 years and some for even longer). The majority are eventually granted leave to remain, and begin to recreate regular lives. Only a small number are eventually removed or return voluntarily to countries of origin. The outcome, and how long it takes, is out of the hands of local authorities, and usually rests with the Home Office.

Jonathan and Sarah showed that local authority responses vary greatly, with some of the explaining factors being the strength of local advocacy, the presence or absence of dedicated services, and how service providers conceptually frame issues of “deserving” or “undeserving”. The voluntary sector is picking up some of pieces – but its capacity is limited. Both the voluntary sector and local authorities are doing this in a climate of stringent cuts.

Sarah and Jonathan concluded with a series of recommendations and implications for policy and practice. Central to these are ways of making a better relationship between the Home Office and local authorities, as well as speeding up case resolution. But the issue, while open to improvement, will certainly continue as long as these categories of migrant families remain outside the national public entitled to full social rights.

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