Equality and Human Rights Commission

The primary purpose of this guide is to support commissioners and providers of social care services to work effectively with refugees and asylum seekers. It offers a concise digest of information about asylum seekers and refugees in the UK and the plethora of relevant legislation, policy and guidance. It summarises, and provides links to, international human rights treaties and domestic legislation and guidance covering human rights and equality; the assessment of, and access to, social care and services to children and families, as well as mental health legislation. It identifies five principal areas in which practice can be improved, and cross-references each of these with other relevant guidance and literature, and with 12 organisational examples in England. It also includes guidance specific to Wales.

Social care providers must:

• Treat asylum seekers and refugees as individuals with the same rights as UK nationals to have their needs identified and appropriately responded to, rather than viewing them solely through the lens of status and eligibility.
• Respect the diverse cultural identities and experiences of asylum seekers and refugees and not treat them as a homogenous group.
• Make decisions that are timely and transparent and involve asylum seekers or refugees, or their advocates, as fully as possible.

The primary purpose of this guide is to support commissioners and providers of social care services to work effectively with refugees and asylum seekers. It will be useful to:

• organisations that have relatively little experience of commissioning and providing social care services for asylum seekers and refugees
• asylum seeker and refugee organisations and charities that provide social care
• organisations with a responsibility for meeting the broader health, social care and housing needs of asylum seekers and refugees.

The guide provides a glossary of terms commonly used in the refugee and asylum field, including selected legal judgments. It offers a concise digest of information about asylum seekers and refugees in the UK and the plethora of relevant legislation, policy and guidance. It summarises, and provides links to, international human rights treaties and domestic legislation and guidance covering human rights and equality; the assessment of, and access to, social care and services to children and families, as well as mental health legislation. It includes links to guidance specific to Wales.

The guide summarises the most common primary health and social care needs of:

• unaccompanied asylum-seeking children
• refugee or asylum-seeking children in families (including those with caring responsibilities)
• refugee or asylum-seeking adults.

It emphasises that many are entirely unclear about how to access services and their entitlement. Further guidance includes a visual diagram of the key points in the asylum seeking process that provide an opportunity for identifying and responding to social care needs.

It identifies five principal areas in which practice can be improved, and cross-references each of these with other relevant guidance and literature, and with 12 organisational examples in England.

It notes that legislation and policy changes frequently and details may quickly become out of date; however, the general principles and approaches are enduring.

A right-based approach to asylum seekers and refugees

The central message of this guide is that social care services should 'use a rights-based approach, considering the person as an individual and assessing their need thoroughly, rather than viewing them solely through the lens of status and eligibility'. Adopting a rights-based approach implies that 'statutory authorities have a responsibility and duty in relation to the social care needs of asylum seekers and refugees'.

The guide offers a range of principles to drive good practice in social care for asylum seekers and refugees. These are consistent with values and principles underpinning good practice in social care more broadly. They are:

• a 'humane, person-centred' approach that sees asylum seekers and refugees as individuals with the same rights as UK nationals to have their needs identified and appropriately responded to
• respect for cultural identity and experiences of migration and recognition that asylum seekers and refugees are not a homogenous group
• non-discrimination and equality
• decision-making that is timely and transparent and involves people, or their advocates, as fully as possible
• promotion of social inclusion and independence
• a 'holistic' approach that promotes collaboration across organisational boundaries at both strategic and operational levels.

Some of these principles are expressly human rights-based and all are consistent with human rights. For example, it is a consistent feature of human rights-based practice that people are treated on a case-by-case basis and are not subject to 'blanket' policies which do not permit discretion or allow individual circumstances to be considered.

Further, the Human Rights Act contains specific protections against discrimination - that is, difference in treatment that has no reasonable or objective justification.

The HRA also guarantees the right to a fair hearing. In the context of asylum seekers and refugees, this means avoiding unnecessary delays in decisions about the provision of social care and making a demonstrable commitment to involving asylum seekers and refugees and their advocates. The guide notes that social care providers should establish a transparent process with regards to assessment, eligibility criteria, involvement of advocates and processes for appeal.

The guide emphasises that some groups may be less visible to social services, for example:

• older refugees
• asylum seeking children and young people in families
• asylum seekers with disabilities
• women who are victims of domestic violence.

This is one reason, the guide notes, why it is important to develop specialist expertise and capacity within the social care workforce and to support and build relationships with refugee and community organisations, involving refugees and asylum seekers in the design and delivery of services.

The guide also recommends that social care services should provide access to culturally sensitive advocacy and interpreting services. Further, equalities monitoring systems need to include refugees and asylum seekers.

The human rights of people with no recourse to public funds

In relation to eligibility, the guide explains that if asylum seekers are not eligible for social care services they should be assessed under the Human Rights Act to establish whether failing to provide appropriate services would be a breach of their human rights. For refused asylum seekers, it refers the reader to detailed practice guidance on assessing and supporting children, families and adults produced by the No Recourse to Public Funds (NPRF) Network.

The guide does not state which specific rights are likely to be engaged in these circumstances, and nor does it point to relevant case law. (The two principal rights at stake are the prohibition of torture or inhuman or degrading treatment or punishment and the right to respect for private and family life). The guide does not, then, provide a complete guide to human rights in this area; rather, it gives the reader the tools to 'dig deeper' on specific areas of law, policy and practice.

Related equality messages (if applicable)

The guide offers a range of principles to drive good practice in social care for asylum seekers and refugees. These are consistent with values and principles underpinning good practice in social care more broadly. One of these is the principle of non-discrimination and equality. It explains that the Human Rights Act contains specific protections against discrimination - that is, difference in treatment that has no reasonable or objective justification.

The guide summarises, and provides links to, international human rights treaties and domestic legislation and guidance covering equality, as well as human rights.

Date of review

February 2011

• No Recourse to Public Funds network
  http://www.islington.gov.uk/community/equalitydiversity/refugees_migrants/nrpf/default.asp
   
• Equality and Human Rights Commission, Human rights at home: Guidance for social housing providers

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