6.2 The right to support

While the legal right to claim asylum and have that claim determined by due process is protected within the UK, other rights ordinarily enjoyed by those not subject to immigration control are restricted by statutory provisions. However, it is important to remember that individual human rights are also protected within the broader legal framework, and to recognise the particular significance that human rights challenges have in the context of determining asylum seekers’ rights.

Although human rights law provides a valuable check on the power of the executive in asylum cases, the burden on the individual of having to establish legal rights through case law should not be underestimated. There is also no guarantee that an argument based on this source of law will be successful, even where the obligation to secure a right under the European Convention on Human Rights (ECHR) is absolute. For example, in the case of Gezer v Secretary of State for the Home Department [2004] EWCA Civ 1730, the English Court of Appeal rejected a claim by an asylum seeker and his family that it was a breach of their rights under art 3 ECHR to disperse them to Glasgow, where they had been subjected to racial abuse and harassment, culminating in them being attacked in their flat. It was held that, on the facts, the family had a choice of whether to accept the offer of housing on the estate, even though not doing so would result in the offer of National Asylum Support Service (NASS) support being withdrawn, although Lord Justice Elias did not think there was a real choice (at para 57).

Nevertheless, public authorities have a duty to respect asylum seekers’ rights under the ECHR and to ensure their consideration and compliance in the planning of services. This duty clearly applies to the provision of social work services by local authorities, reinforced by the professional value commitments of social work.