Author
In all procedures for determining a first claim, asylum seekers who can show that otherwise they would be destitute, are entitled to accommodation and/or a weekly sum of money.[1] This is usually applied for when a person has their screening interview, and granted shortly after. It is also available to people who are in the inadmissibility process.
Most asylum seekers are provided with initial accommodation, and then further accommodation. This may be at a considerable distance from where they made their initial claim.
Following a tender process new contracts to provide accommodation were announced in January 2019.[2] One of the previous providers did not receive a contract this time. In March 2019 the government responded to the Parliamentary Committee’s report about this process and its recommendations for smooth transition.[3] The transition was heavily criticised as it resulted in delays in people being provided with housing and financial support, and the service provided under the new contracts continue to receive attention including in a joint report in July 2020.[4]
The accommodation and support contracts were also investigated by the National Audit Office which has a responsibility to audit the use of public funds.[5] Its report, in July 2020, was then, as a matter of protocol, discussed by the parliamentary committee the Public Accounts Committee.[6] The theme of all the criticism is that the contractors are not meeting the needs of people in the asylum system. By the time of the Public Accounts Committee inquiry the focus had moved to the increased use of ‘contingency accommodation’; the use of which increased from the beginning of the Covid-19 pandemic although had begun before that time. The Home Affairs Select Committee conducted an inquiry specifically into the use of contingency institutional accommodation with a focus on the response the pandemic.[7] Its key recommendation to the Home Office was to work on a strategy to end the use of this type of accommodation. The government’s response largely repeated its position in the support and advice provided.[8] However it did publish a new safeguarding framework, signed by all the accommodation providers, in May 2022.[9] It also began a (non-public) consultation exercise with local authorities[10] and published a grant funding agreement, with the aim of increasing the provision across the country.[11]
The assessment of destitution
In practice asylum seekers are required to prove that they are destitute[12] 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.[13] 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.[14] 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.
In order to assess destitution, the Home Office will consider whether the person is able to meet their essential living needs (if they are asking for financial support only) or whether they are able to secure adequate accommodation and also meet their essential living needs (if they are asking for accommodation).[15] They are considered destitute if they meet this test at the time of applying or else they will be in this position within 14 calendar days.[16]
At the point at which an asylum support application is made, the applicant completes the form ASF1; they can get help from the voluntary sector to do this. Applicants have to state that they understand the following as part of the form:
“Failure to disclose all necessary information or to provide false information regarding myself or any of my dependants may lead to information being passed to the police or other agencies for investigation. Note that failure to supply the required information may result in your application for support being refused.”
Specific questions are asked about financial resources available to the applicant on this form.
Quality of decision making on support applications has been a significant obstacle, particularly in relation to the destitution test. Between 1 April 2020 and 31 March 2021 the Asylum Support Tribunal allowed 66% of the appeal cases where the client was represented by lawyers from the Asylum Support Appeals Project (ASAP) and remitted a further 2% back to the Home Office to retake the decision.[17]
Emergency support: Section 98 Support
During the assessment of a person’s eligibility for Section 95 support (the main form of support), asylum seekers may receive support on a temporary basis (“Section 98 support”).[18] This is mainly non-cash assistance. People seeking to claim section 98 support will usually request this at their screening interview where they are asked about their accommodation,[19] but outside of this should contact Migrant Help to help them apply. The Home Office will make the decision based on whether it appears that the person ‘may’ be destitute. This is a lower test than for full support provided under section 95.
There was previously a policy that a destitute asylum seeker should have their screening interview the same day they first contact the Home Office so that they can register their asylum claim and claim Section 98 support at that interview. However due to delays in screening interviews taking place provision was made for people to access asylum support before they had formally registered their claim at the screening interview.[20] Support is granted first on an emergency basis, pending a decision on whether to grant full support, which must be applied for.[21] There is no maximum amount of time a person can be in receipt of this support, although after delays had reached several months, a recent case indicated that a decision on section 95 support should be taken within 10 days.[22]
Home Office guidance provides that asylum seekers may stay in initial accommodation for a short time after their initial support under Section 98 has ended.[23] Where further support has been refused this can be up to 7 days. If support under Section 95 is granted then the person will start receiving that and will be moved to their new accommodation if applicable. Where leave has been granted people can stay in initial accommodation for up to 28 days and where leave has been refused this is 21 days. If there are children, support can continue.[24]
Section 95 Support
Once the destitution assessment is complete, an asylum seeker who is accepted to be destitute receives what is commonly referred as Section 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.[25] The entitlement to Section 95 support covers the asylum procedure and 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). Support is provided using a card (ASPEN) which works on the visa platform; it can be used as a debit card or to withdraw cash from an ATM (cash is available for s95 beneficiaries only).
Once an asylum claim is refused and appeal rights exhausted, Section 95 support stops, except for families with children.[26] 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 (mainly through voluntary hosting schemes) or small amounts of money.
Obstacles to claiming support include that the application form is 33 pages long,[27] is in English only and is only available online. A 17-page guidance document gives advice on how to complete it. Telephone advice is also available from the charity Migrant Help under a government contract. The Migrant 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. However, since the increased use of contingency accommodation as mentioned in in the section on Criteria and Restrictions to Access Reception Conditions, face-to-face advice is not available to many and Migrant Help has acknowledged that here are shortcomings in its ability to respond to all queries.[28]
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. Information on Migrant Help’s website informs applicants that all information and supporting documents must be provided before the application is submitted to the Home Office. If applicants do not have this information they will experience a delay in their application for support being processed.[29]
The policy of dispersing asylum seekers round the UK[30] as discussed in Freedom of movement, and usually away from south east England may also provide a disincentive to ask for accommodation from the Home Office. Where a person has family and friends with whom they can live they can still claim cash support. There are reports that some asylum seekers take only cash support and continue to ‘sofa-hop’ i.e. move from one person to another, staying on floors and in shelters, because they do not want to leave London. The Home Office may consider a request to be accommodated in London or south east England if the applicant is in receipt of therapeutic services from the Helen Bamber Foundation or the NGO Freedom from Torture.
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.[31] Recent litigation may have resolved this matter, confirming that local authorities have a duty to provide asylum accommodation where a person has accommodation related care needs.[32]
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. Revised guidance was published in 2018 reflecting the provisions in the Care Act (applying to England) and similar provisions in devolved administrations and the relationship between local authority duties and Home Office asylum support provision.[33]
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.[34] 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,[35] 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.
The levels of asylum support are reviewed on an annual basis. At the beginning of the national lockdown in March 2020 and subsequent to the government’s announcement that recipients of the main welfare benefit would receive an increased level of support during the pandemic, NGOs wrote to the Immigration Minister to ask for a similar measure to be taken with regard to asylum support. Instead, the usual review was undertaken; the rate increased to £39.63. In January 2024 the rate was raised to £49.18 (€ 57).[36] Following litigation,[37] the rates for pregnant women and children under 4 were increased and they receive an additional weekly amount of £5.25 (€ 6.12) and babies under one year receive an additional weekly payment of £9.50 (€ 11.07). These rates also apply to those on section 4 support.
Those asylum seekers supported in full board accommodation under section 95 and section 4 receive £8.86 (€ 10.32) in cash per week to allow them to pay for essential toiletries and travel.[38] The levels of support are regularly criticised by NGOs following research with their beneficiaries.[39]
Additional support: Section 96(2) Support
There is also provision for additional support to be provided on an exceptional basis where deemed necessary by the Home Office to ensure that applicants and/or their dependants in particular circumstances would have their needs met. In 2017 the Home Office published guidance on how to make applications under Section 96(2) Immigration and Asylum Act 1999.[40] Examples of such circumstances given in the guidance include a person whose medical needs result in higher costs or has their belongings destroyed in a fire.
Section 4 Support for rejected asylum seekers
A minority of refused asylum seekers qualify for no-choice accommodation and a form of non-cash support from the Home Office (“Section 4 support”) if they meet one of the qualifying conditions set out in the next paragraph.[41] During 2017 the delivery of Section 4 support changed to the ASPEN card; whilst cash may not be withdrawn recipients of Section 4 support may now use the card as a debit card at any retailer accepting Visa. In 2020 the rate was made equivalent to that received by people on section 95 support. In January 2024 the rate was raised to £49.18 (€ 57).[42] Pregnant women and children under 4 receive an additional weekly amount of £5.25 (€ 6.12) and babies under one year receive an additional weekly payment of £9.50 (€ 11.07). Those in full board accommodation receive £8.86 (€ 10.32) in cash per week to allow them to pay for essential toiletries and travel.[43]
Section 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.[44] 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 Section 4 support is tied to meeting the condition. So people may submit further representations; obtain Section 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.
Applications for Section 4 support for refused asylum seekers must be made through the online and telephone service,[45] 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 Section 4 support, with the exception of families who have retained Section 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.
[1] Section 95 Immigration and Asylum Act 1995, available at: https://bit.ly/3uFkzu7.
[2] Home Office, ‘New asylum accommodation contracts awarded’, 8 January 2019, available at: https://bit.ly/2SUJgdM.
[3] Government, ‘Asylum accommodation: replacing COMPASS: Government Response to the Committee’s Thirteenth Report of Session 2017–19’, 8 March 2019, available at: https://bit.ly/30M6Yhi.
[4] Asylum matters, Wake-up call; how government contracts fail people seeking asylum, July 2020, available at: https://bit.ly/3uxjKna.
[5] National Audit Office, ‘Asylum accommodation and support’, July 2020, available at: https://bit.ly/3a7T8L8.
[6] Public Accounts Committee, ‘Asylum support and accommodation transition programme’, November 2020, available at: https://bit.ly/3acK2wN.
[7] Home Affairs Select Committee, ‘Home Office preparedness for coronavirus (Covid 19) institutional accommodation’, July 2020, available at: https://bit.ly/3a6838B.
[8] Ibid.
[9] Home Office, ‘Asylum support contracts safeguarding framework’, 9 May 2022, available at: https://bit.ly/3gCoIaW.
[10] Local Government Chronicle, ‘Councils withdraw legal action after Home Office meets asylum dispersal demands’, 18 May 2022, available at: https://bit.ly/3U3545Q.
[11] UK government, ‘Guidance – Asylum Dispersal Grant: funding instruction, last updated 6 September 2022, available at: https://bit.ly/3AFQUAI.
[12] Section 95 Immigration and Asylum Act 1995, available at: https://bit.ly/3uFkzu7.
[13] Reg. 6 Asylum Support Regulations 2000, available at: http://bit.ly/1C2R7GQ.
[14] Reg. 20 Asylum Support Regulations 2000; practice-based observation by the expert, January 2024.
[15] Home Office guidance, ‘Assessing destitution’, available at: https://bit.ly/49mdu0z.
[16] Section 95 Immigration and Asylum Act 1995, available at: https://bit.ly/3uFkzu7.
[17] Not available online – personal communication with Asylum Support Appeals Project.
[18] Section 98 IAA 1999.
[19] Home Office guidance, ‘Asylum screening and routing’, available at: https://bit.ly/3UPtvHJ.
[20] UNHCR, ‘Asylum screening in the UK’, available at: https://bit.ly/3PPHZ7e, para. 75.
[21] Section 98 Immigration and Asylum Act 1999, available at: https://bit.ly/3TKW6fo.
[22] HA & Ors v Secretary of State for the Home Department [2023] EWHC 1876 (Admin), available at: https://bit.ly/4bEYBYG.
[23] Para 1.1.2, Asylum Support Policy Bulletins Instructions, available at: http://bit.ly/1LjSzbh.
[24] Home Office, Asylum Support Bulletin 73: Access to Support.
[25] Section 95 IAA 1999.
[26] Home Office guidance, ‘Ceasing Section 95 Support instruction’ July 2023, available at: https://bit.ly/4bNQFEz, 13.
[27] Home Office, Application for asylum support: form ASF1, updated 2022, available at: http://bit.ly/1RfS1qt.
[28] Migrant Help, ‘Asylum services update’, November 2022, available at: https://bit.ly/3tSHaz5.
[29] Migrant Help advice, see: https://bit.ly/2Gg1Qsc.
[30] House of Commons Library, Policy on the dispersal of asylum seekers, April 2016, available at: https://bit.ly/3uJKUak.
[31] Section 9 Care Act 2014.
[32] High Court, TMX, R (On the Application Of) v London Borough of Croydon & Anor [2024] EWHC 129 (Admin), available at: https://bit.ly/49MZfBR.
[33] Home Office, Asylum Seekers with Care Needs, August 2018, available at: https://bit.ly/2DcZBFa.
[34] Section 55 NIAA 2002; House of Lords, Limbuela v Secretary of State for the Home Department [2005] UKHL 66.
[35] House of Lords, Limbuela [2005] UKHL 66.
[36] The Asylum Support (Amendment) Regulations 2023, available at: https://bit.ly/4bJbeSx.
[37] High Court, HA & Ors v Secretary of State for the Home Department [2023] EWHC 1876 (Admin), available at: https://bit.ly/4bEYBYG.
[38] Home Office, ’Asylum support’, available at: https://bit.ly/4bMJ1dt.
[39] Asylum Matters, Surviving in Poverty: a report documenting life on asylum support, 2023, available at: https://bit.ly/3SNg48D.
[40] Home Office, Applications for additional support, March 2017, available at: http://bit.ly/2G9AD94.
[41] The numbers of refused asylum seekers in the UK are unknown, but the proportion on Section 4 is small.
[42] The Asylum Support (Amendment) Regulations 2023, available at: https://bit.ly/4bJbeSx.
[43] Home Office, ’Asylum support’, available at: https://bit.ly/4bMJ1dt.
[44] Immigration and Asylum (Provision of Accommodation to Failed Asylum Seekers) Regulations 2005.
[45] UK government, ‘Apply for asylum support: form ASF1’, 16 October 2023, available at: https://bit.ly/3Ia8S1u.