In all procedures for determining a first claim, where asylum seekers are not detained, if they are destitute they are entitled to accommodation and/or a weekly sum of money. While the assessment of their eligibility for support is going on, they may receive support on a temporary basis (s.98 support).1 This can only be received once the claim is registered and is mainly non cash assistance. The application must be made on a prescribed form, and this is the only formal requirement.2 Although there is a policy that a destitute asylum seeker should be seen the same day so that they can register their asylum claim and claim s.98 support, in practice there are obstacles as e.g. a same day appointment may be refused, they may not be believed, or not be told of this possibility and not be aware of it.3 Once the assessment is complete, an asylum seeker who is accepted to be destitute receives what is commonly referred as s.95 support. They are considered destitute if they do not have adequate accommodation or any means of obtaining it, or else they do have adequate accommodation but no means of meeting their other essential needs, or else they will be in this position within 14 calendar days.4 The entitlement to s.95 support continues until 28 calendar days after a form of leave is granted or, if the claim is refused, until 21 calendar days after a non-appealable decision or the expiry of the time allowed to appeal the most recent decision (this is called Appeal Rights Exhausted: ARE).
In practice asylum seekers are required to prove that they are destitute and this is strictly enforced. All assets which are available to them are taken into account, whether in the UK or elsewhere, if they consist of cash, savings, investments, land, cars or other vehicles, and goods held for the purpose of a trade or other business.5 If relevant assets come to light which were not declared, support can be stopped and payments made can be recovered, although it appears that recovery happens infrequently in practice.6 Asylum seekers are expected to use the assets they have before being granted asylum support, but once they are assessed as destitute there is no requirement for contributions from them.
Obstacles to claiming support include that the application form is 33 pages long,7 is in English only and from 1 April 2014 is only available online. A 17 page guidance document gives advice on how to complete it. Telephone advice is also available from the Asylum Help service, part of the charity Migrant Help. The Asylum Help website also has multilingual guides to claiming asylum support, amongst other issues. Any supporting documentation is also handled by Migrant Help; documents can be scanned and communicated to the Home Office via Migrant Help, avoiding the need to submit original documents. Asylum seekers in initial accommodation centres are assisted to make this application and face to face advice is available there.
Where asylum claimants have been in the UK for some time without government assistance, it may be difficult for them, especially without advice, to gather the right evidence for support claims. They may need to get letters from friends/acquaintances they have lost touch with for example, to show what support they have and why this is no longer available to them. Requests for evidence often include items such as friends’ bank statements or payslips, the details of empty bank accounts or evidence of homelessness. These requests delay the support decision which results in prolonged destitution for asylum seekers. If the applicant fails to satisfy the request for further information, the Home Office can decide not to consider the application under s.57 and this decision cannot be appealed.8
The policy of dispersing asylum seekers round the UK and usually away from the south east may also provide a disincentive to claim support. Asylum seekers may decide to live in poor conditions with friends or relatives in London rather than move far away from them and perhaps their legal adviser.
Once an asylum claim is refused and appeal rights exhausted, s.95 support stops, except for families with children. In August 2015 the government launched a consultation proposing to stop the support of families also when claims are refused.9 Before the results of the consultation were announced, a Bill was introduced into Parliament to bring these proposals into law. The Immigration Act 2016[10 outlined the measures, although that part of the Act is yet to be enacted and details will not be known until a month prior to the introduction, expected in March or April 2017. Asylum seekers then become absolutely destitute, with no entitlement to accommodation or money. People in this position may be reliant on friends, who may themselves be in asylum support accommodation which prohibits guests, and who thus risk losing their support by hosting a friend. Many destitute refused asylum seekers rely on charities for food vouchers, food parcels, sometimes accommodation or small amounts of money. One reason that the backlog of unresolved asylum cases has caused such public concern is that refused asylum seekers, who may still be trying to establish their claim, may spend years in destitution. Six or seven years in destitution is common, and there are people who survive this limbo for periods up to 15 years. A study in Manchester found that one in ten refused asylum seekers had been destitute for more than 10 years.11 Many such charities gave evidence to Parliament during the course of the Bill’s passage.12
Support may be available (accommodation and subsistence payments, the level determined by need) from local authorities where the person is destitute and in need of care and attention because of physical or mental ill health, but recognition of this statutory provision is very uneven around the country and some local authorities simply do not assess refused asylum seekers, or delay for lengthy periods, despite the statutory duty to do so.13 Where ill health results from destitution, and not from another condition, local authority support is not available. Thus it does not present any solution for the people whose health is ruined by years in destitution.
A minority of refused asylum seekers qualify for no-choice accommodation and a form of non-cash support from the Home Office called an Azure card (s.4 support) if they meet one of the qualifying conditions set out in the next paragraph.14 The card can only be used at a limited number of designated shops. This card has a weekly value of £35.39 (approximately €42) per person but cannot be used to obtain cash or to pay any living expenses not incurred at the designated shops, e.g. not bus fares. This is so even if the designated shops are miles from their accommodation and they have small children. Users are also prohibited from purchasing petrol, diesel, gift cards, alcohol or cigarettes.
S.4 support is available only if refused asylum seekers can show either that they are not fit to travel, that they have a pending judicial review, that there is no safe and viable route of return, that they are taking all reasonable steps to return to their home country, or that it would be a breach of their human rights not to give this support.15 In practice this latter category is used mostly where the asylum seeker has further representations outstanding. The principle underlying this is that if a person does not meet one of the other conditions, and does not have further representations outstanding, it is not considered a breach of their human rights to leave them destitute, because it is considered that they can return to their home country. The period of s.4 support is tied to meeting the condition. So people may submit further representations; obtain s.4 support, move, and a few weeks later receive a refusal of their further representations and so return to destitution. This process may be repeated.
The absence of a safe and viable route of return is rarely accepted unless there is a Home Office policy of non-return in relation to the country in question. Attempting to prove that they have taken all reasonable steps to return is problematic for those who come from countries with which diplomatic relations are suspended, or whose embassies have complex requirements which are difficult to fulfil, or who belong to a group which is denied documents by their country of origin. There are also practical problems, given that they are destitute, in obtaining the fare to visit their embassy, the resources to send faxes, make phone calls, and so on.
From 1st April 2014 applications for s.4 support for refused asylum seekers must be made through the online and telephone service, except for vulnerable applicants who can have a face to face appointment at the initial accommodation centres or at an outreach centre where these exist.
For all refused asylum seekers who cannot fulfil the conditions for s.4 support, with the exception of families who have retained s.95 support, (see below) there is no support available. If, for whatever reason, they are unable to return to their country of origin, these asylum seekers are left destitute and homeless. The numbers of refused asylum seekers who are absolutely destitute in the UK is unknown. The British Red Cross provides regular updates on the asylum seekers it helps because of destitution.16
There is a provision for support to be refused if asylum has not been claimed as soon as reasonably practicable, unless to do so would breach the person's human rights.17 This is rarely used for claims made soon after arriving in the UK, but may be used where a person claims asylum after a period of residence in the UK. Human rights protection, following the House of Lords case of Limbuela,18 means that a person will not be made street homeless as a result of this provision, but may be denied cash support if they have somewhere to stay.
Quality of decision making on support applications has been a significant obstacle, particularly in relation to the destitution test. A study showed that in 80% of appeals against refusal of s.95 support, and 84% of appeals against refusal of s.4 support, the applicant was found to be destitute after all.19 The Chief Inspector found that decision quality was reasonable, but that there were problems with delay in making decisions. Guidelines were that applications should be decided within 2 days where the person was homeless and otherwise within five days. However, these were not being met in a significant number of cases.20 Between 1 April and 30 September 2016, the Asylum Support Tribunal allowed 55% of the appeal cases it decided where the client was represented by the Asylum Support Appeals Project (85% of cases) and remitted a further 13% back to the Home Office to retake the decision.21
- 1. Section 98, IAA 1999, available at: http://bit.ly/1C2MkVQ.
- 2. Application for asylum support: Form ASF 1, available at: http://bit.ly/1RfS1qt.
- 3. Independent Chief Inspector of Borders and Immigration, An Inspection of Asylum Support, July 2014.
- 4. Section 95, IAA 1999, available at: http://bit.ly/1C2MkVQ.
- 5. Reg.6, Asylum Support Regulations 2000 SI 704, available at: http://bit.ly/1C2R7GQ.
- 6. Reg. 20 as amended, Asylum Support Regulations 2000 SI 704, available at: http://bit.ly/1C2R7GQ.
- 7. Application for asylum support: form ASF1, 11 January 2016, available at: http://bit.ly/1RfS1qt.
- 8. Section 57, NIAA 2002, available at: http://bit.ly/1TAHzxu.
- 9. Schedule 11, Immigration Act 2016, available at: http://bit.ly/1KUtVAq.
- 10. Ibid.
- 11. British Red Cross and Boaz Trust, A Decade of Destitution: Time to Make a Change, 2013.
- 12. See the legislative process at: http://bit.ly/2lPMWQP.
- 13. Section 9, Care Act 2014.
- 14. 2424 households were living on s.4 support at the end of December 2016 Home Office Statistics Q4 2016. The numbers of refused asylum seekers in the UK are unknown, but the proportion on s.4 is small. See the Still Human Still Here submission to Home Affairs Select Committee inquiry on Asylum, 2013.
- 15. Immigration and Asylum (Provision of Accommodation to Failed Asylum Seekers) Regulations 2005.
- 16. More information available at: http://bit.ly/2m7fSTY.
- 17. Nationality, Immigration and Asylum Act 2002 s.55 and Limbuela v Secretary of State for the Home Department  UKHL 66.
- 18. Limbuela  UKHL 66.
- 19. Sophie Wickham and Rossen Roussanov, UKBA decision making audit one year on: still no credibility. Asylum Support Appeals project, 2013, available at: http://bit.ly/1H3h00u.
- 20. Independent Chief Inspector of Borders and Immigration, An Inspection of Asylum Support, July 2014.
- 21. Asylum Support Appeals Project Quarterly monitoring report July-September 2016, available at: http://bit.ly/2lL3E3d.