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Eligibility for support

This content applies to England

Criteria that an asylum seeker must fulfil to be eligible for support from UKVI.

Criteria

To be entitled to asylum support, a person must be:

  • an asylum seeker, or the dependant of an asylum seeker, and
  • excluded from social or welfare support, and
  • destitute or likely to become destitute within 14 days.[1]

Asylum seeker

Eligibility for asylum support is restricted to asylum seekers and their dependants as defined in section 94(1) of the Immigration and Asylum Act 1999. Other categories of immigrants are not eligible because they are not asylum seekers according to the definition in section 94(1), and the Immigration and Asylum Act 1999 excludes 'persons subject to immigration control' from benefits and most other welfare provision, including asylum support.

For support purposes, an asylum seeker is a person who is at least 18 years old and who has made a claim for asylum that has been recorded by the Home Secretary, but the claim has not yet been decided.[2] A claim is not considered to have been decided if it is being appealed, eg to the First-tier Tribunal (Immigration and Asylum Chamber)

More information on asylum appeals can be found from Gov.uk..

A statutory review that is considered by the Administrative Court does not count as an appeal.

Dependants of an asylum seeker

As well as the asylum seeker, any dependant of an asylum applicant can make a claim for asylum support (although one application can include the entire household).[3] A person is the dependant of an asylum seeker if s/he is:

  • the husband, wife or civil partner of the asylum applicant
  • below the age of 18 and the child of the asylum applicant or of her/his spouse or civil partner
  • under the age of 18 and a member of the asylum applicant's family or the close family of her/his spouse or civil partner
  • a child under the age of 18 who has been living as part of the asylum seeker's household, either since birth or for at least six of the 12 months before the application for asylum is made
  • being cared for by the asylum applicant or someone in her/his household because of a disability and is either a member of the applicant's family or that of her/his spouse or civil partner, or has been living as part of the asylum seeker's household since birth or for six of the 12 months before the claim is made
  • living with the asylum seeker as a member of an unmarried or same-sex couple for at least two of the three years before the claim is made or the date s/he joined the asylum seeker in the UK. The High Court held that this condition does not breach either Article 8 or 14 of the ECHR[4]
  • a person who is being treated by the Home Office as the dependant of an asylum seeker for the purposes of the asylum claim (although it would usually only be the husband, wife or civil partner, or the child of an asylum seeker who is usually treated as an asylum seeker, the Home Office can decide who else to treat as a dependant).[5]

Exclusion from support

An asylum seeker whose entire household is eligible for means-tested benefits, ie income support, income-based jobseeker's allowance, housing benefit and council tax benefit, will be excluded from consideration for asylum or temporary support.

Destitution

An applicant who does not have access to adequate accommodation or who cannot meet her/his (and any of her/his dependants') essential living needs is destitute.[6] In assessing whether the applicant is destitute, the UK Border Agency takes into account the income and assets that are available to the applicant, and whether or not these are enough to meet her/his (and any dependants') essential living needs.[7] If the asylum applicant is currently occupying accommodation, the adequacy and suitability of this will also be assessed. The factors that must be taken into consideration in assessing the adequacy of the applicant's accommodation include:[8]

  • whether it would be reasonable for the person to continue to occupy the accommodation: this will be assessed in view of the general circumstances in relation to housing in the district of the local housing authority where the accommodation is situated[9]
  • whether s/he can afford the accommodation
  • whether the accommodation is provided as temporary support under section 98 of the Immigration and Asylum Act 1999 while the applicant's claim for support is being considered
  • whether the person can secure entry to the accommodation
  • where the accommodation is a moveable structure such as a vehicle or caravan, whether the applicant has a place where s/he is permitted to park it and live in it,
  • whether the accommodation is available for occupation by the person's dependants together with her/him
  • whether it is likely that if the person continues to live in that accommodation, s/he (or any dependants) will suffer domestic abuse or violence.

[1] s.95(1) Immigration and Nationality Act 1999.

[2] s.94(1) Immigration and Asylum Act 1999.

[3] reg 3(1) Asylum Support Regulations 2000 SI 2000/704, as amended by Articles 1-2 and Sch.12 of Civil Partnership Act 2004 (Amendments to Subordinate Legislation) Order 2005.

[4] R (on the application of Chen) v (1) Secretary of State for the Home Department; (2) First Tier Tribunal (Asylum Support) [2012] EWHC 2531 (Admin).

[5] reg 2(4) Asylum Support Regulations 2000 SI 2000/704. See also paras 349/352F Immigration Rules 1994, as amended.

[6] s.95(3) Immigration and Asylum Act 1999.

[7] reg 6 Asylum Support Regulations 2000 SI 2000/704.

[8] reg 8(3) Asylum Support Regulations 2000 SI 2000/704.

[9] reg 8(4) Asylum Support Regulations 2000 SI 2000/704.

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