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Late claim for asylum

This content applies to England

Asylum seekers who have been excluded from receiving support from UKVI (formerly UKBA) under section 55 of the Nationality, Immigration and Asylum Act 2002 because they have not made their asylum claim 'as soon as reasonably practicable' after arriving in the UK .

Section 55

Section 55 of the Nationality, Immigration and Asylum Act 2002 limits access to support for in-country asylum applicants. The Home Secretary may deny housing and support to any asylum seeker who fails to claim asylum 'as soon as reasonably practicable' after arriving in the UK,[1] unless her/his human rights would be breached. Asylum seekers who can give a credible explanation, within three days of their arrival, of how they arrived in the UK, will be considered to have made their claim 'as soon as reasonably practicable' under section 55.

Article 3 breach

Section 55 was successfully challenged in the courts on the grounds that the denial of state support to asylum seekers would leave them destitute and at risk of inhuman and degrading treatment, in breach of Article 3 of the European Convention on Human Rights. The House of Lords held that as soon as an asylum seeker who had been refused support on the basis of not claiming as soon as reasonably practicable made it clear that there was a imminent prospect of a breach of her/his Article 3 rights, the Secretary of State had the power under section 55 and a duty under the Human Rights Act 1998 to act to avoid a breach.[2]

The House of Lords confirmed that in order for the Article 3 threshold to be reached, it was necessary to look at the full package of restrictions and deprivations suffered by the asylum seeker and decide, on a common-sense basis, whether it was so severe that it could properly be described as inhuman and degrading treatment. In all three cases, the asylum seeker was prevented from working, had no means at all, no available support and was deprived of shelter, food, and the basic necessities of life.

Therefore, it is not inevitable that anyone refused asylum support on the basis of section 55 will be able to later claim support under Article 3. An asylum seeker who has been denied access to support will still have to demonstrate that such denial will amount to inhuman and degrading treatment and that s/he has no other means of obtaining support.

The essential points to note are:

  • asylum seekers who do not claim asylum 'as soon as reasonably practicable' after arriving in the UK are denied asylum support
  • local authorities still have a duty to provide support under section 18 of the Care Act 2014 where an asylum seeker has a need for care and support that does not arise solely from destitution[3]
  • section 55 does not apply to people with dependent children or to unaccompanied asylum seeking children (who remain the responsibility of social services)
  • section 55 does not apply where this would involve a breach of an individual's human rights under the European Convention on Human Rights.

Guidance on interpretation

UK Visas and Immigration's (UKVI) interpretation of section 55 is contained in its guidance Policy Bulletin 75.[4] The procedure for challenging a section 55 decision is to send a letter to UKVI to explain why the asylum claim was made as soon as reasonably practicable and/or why the refusal of support may interfere with the asylum seeker's Article 3 rights. If UKVI upholds the section 55 decision, the remedy is judicial review.

[1] s.55 Nationality, Immigration and Asylum Act 2002.

[2] R (Adam, Limbuela and Tesema) v Secretary of State for the Home Department [2005] UKHL 66.

[3] s.21 Care Act 2014.

[4] Policy Bulletin 75.

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