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Housing and welfare rights

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Information about the legislation that determines the eligibility of asylum seekers to housing, welfare support and legal aid.

People who have been granted asylum in the UK as refugees, or who have been given other forms of leave to remain, have similar rights to British citizens in terms of housing and welfare support rights. Asylum seekers awaiting a decision on their status (made by UK Visas and Immigration (UKVI) have very limited access to public sector housing and social security support.

Asylum legislation

The Asylum and Immigration Act 1996 and the Immigration and Asylum Act 1999 significantly reduced the rights of asylum seekers to access social housing, assistance under homelessness legislation and welfare benefits. UKVI provides an alternative, more basic form of support and access to accommodation, mainly outside the south east of England.

The Immigration and Asylum Act 1999 also removed from asylum seekers rights of security of tenure and rights to protection from eviction where they are housed under the Act (see the page on Security of tenure for details).

The Nationality, Immigration and Asylum Act 2002 introduced further, more restrictive, changes in relation to the provision of housing and support to asylum seekers where their asylum claim has been refused and they are not taking steps to leave the UK, or to comply with removal directions. See the page Legislation restricting community care help for more information.

The Asylum and Immigration (Treatment of Claimants, etc) Act 2004 altered the local connection provisions for asylum seekers leaving UKVI support and introduced, among other things, the removal of support for failed asylum seekers with children who fail to take reasonable steps to leave the country.

The Immigration, Asylum and Nationality Act 2006 came gradually into force during 2006. Section 43 of the Act was brought into force on 30 June[1] and gives local authorities powers to provide accommodation on behalf of UKVI, eg section 4 accommodation for failed asylum seekers. It excludes such accommodation from security of tenure by making any agreement an excluded tenancy or licence under the Protection from Eviction Act 1977[2] or a non-secure tenancy under the Housing Act 1985.[3]

EC Directive 2003/9/EC laid down minimum standards for the reception of asylum seekers. The Directive resulted in the Government implementing a Statement of Changes in Immigration Rules HC 194 and passing new regulations, the Asylum Seekers (Reception Conditions) Regulations 2005 and the Asylum Support (Amendment) Regulations 2005. The aim of the Directive is to introduce an European Union-wide common policy for the reception of asylum seekers 'to ensure them a dignified standard of living and comparable living conditions in all member states'. The Directive is not retrospective and applies only to asylum claims, not claims under Article 3 of the European Convention on Human Rights, made on or after 5 February 2005.

Local authority housing

Asylum seekers and other persons subject to immigration control are excluded from entitlement to social housing (local authority landlords and private registered providers of social housing) by a combination of provisions from the Housing Act 1996 and the Immigration and Asylum Act 1999, and by regulations.

Generally, the Immigration and Asylum Act 1999 precludes asylum seekers who claimed asylum in the UK after 3 April 2000 from assistance as homeless persons under Part 7 of the Housing Act 1996, and from the allocation of local authority housing under Part 6 of the Housing Act 1996. However, there is a very limited category of asylum seekers who are still entitled to social housing (see below).

Asylum seekers who made their asylum claim on or after 3 April 2000 will need to apply for assistance from UKVI (see the page on UKVI for information), and have no right to local authority housing unless they are granted leave.

Eligible asylum seekers

Although the general rule is that all asylum seekers who made their applications for asylum on or after 3 April 2000 cannot be given local authority (or other public sector) housing, and are expected to apply to UKVI for support, there are three groups of asylum seekers that may still be eligible for social housing due to a kind of transitional protection. These are:[4]

  • asylum seekers who applied for asylum in the UK on or before 4 February 1996 and who were entitled to housing benefit on, or before, that date
  • asylum seekers who applied for asylum on arrival before 3 April 2000 and whose claims have not been recorded as having been decided or abandoned
  • asylum seekers who applied for asylum within three months of an upheaval declaration and whose claims have not been recorded as having been decided or abandoned.

Asylum seekers in these categories (of which there will be very few), are only eligible if, additionally:

  • they are aged 18 or over, and
  • they have had their asylum claim recorded by the Home Secretary as being made before 3 April 2000, and
  • that claim has not been decided.[5]

Homelessness applications

The Asylum and Immigration Act 1996 excludes persons subject to immigration control, including asylum seekers, from entitlement to assistance as homeless persons under Part 7 of the Housing Act 1996.[6] Eligibility is restricted on the grounds of immigration status, and the only categories of persons from abroad who are eligible for homelessness assistance are those who have been re-included by regulation (eg refugees).

There is no homelessness advice and assistance duty to applicants who are ineligible for assistance under the homelessness legislation. An asylum seeker will not, therefore, be able to approach the local authority for advice or assistance because s/he is ineligible.

Please see the section on Eligibility: non-EEA/EU nationals and the section on Eligibility: EEA/EU nationals for more information about homelessness applications by those who are eligible.

Allocation of local authority housing

An allocation is when a local housing authority selects a person to be a secure or introductory tenant of local authority housing, or of other accommodation owned by a body that is capable of granting a secure or introductory tenancy (a housing action trust, for instance), or nominates a person to be an assured tenant of a registered social landlord.[7]

A housing authority may only allocate accommodation to those who are eligible, and since most asylum seekers are ineligible for an allocation, they cannot be rehoused through the allocations system.[8]

Unless they fall within the exceptions specified in the regulations, asylum seekers are not eligible persons for allocation purposes, because they are subject to immigration control. However it is only the main applicant who needs to be eligible so if, for example, a husband with humanitarian protection is joined by an asylum-seeker wife and children, he can apply for an allocation for the whole family.[9]

Please see the section on Eligibility: non-EEA/EU nationals and the section on Eligibility: EEA/EU nationals for further information on eligibility.

Welfare benefits

The Immigration and Asylum Act 1999 introduced the definition of 'persons subject to immigration control' who would be excluded from benefits entitlement. Under the provisions of that Act, asylum seekers and other persons subject to immigration control are ineligible for non-contributory welfare benefits as of 3 April 2000.[10] The Immigration and Asylum Act 1999 put in place transitional measures for those asylum seekers who were entitled to claim benefits up until that date.

Although the general rule is that asylum seekers do not have recourse to social security benefits, there is a narrow category of asylum seekers who are entitled to claim certain specified benefits:

  • those who claimed asylum 'on arrival' before 3 April 2000: a person remains entitled to benefits from 3 April 2000, despite changes in the rules from that date, if s/he was an asylum seeker and applied for asylum on arrival on any date up to and including 2 April 2000. People in this category have transitional protection until the first negative decision on their asylum claim.[11] They are eligible to claim income-based jobseeker's allowance, income support, housing benefit and council tax benefit and a social fund payment if they were eligible for or receiving benefits on 2 April 2000
  • asylum seekers who were receiving benefits on 4 February 1996, provided that an initial determination of their claim has not yet been made (this will be very rare).Transitional protection was provided for asylum seekers who were receiving income support, housing benefit or council tax benefit on 4 February 1996, and who had not yet had a decision on their asylum application, or those who had an appeal pending on 5 February 1996. This category of asylum seekers continued to receive these benefits until a decision was made regarding their claim. There will be very few, if any, asylum seekers in this category.

[1] Immigration, Asylum and Nationality Act 2006 (Commencement No.1) Order 2006 SI 2006/1497.

[2] s.3A (7A) Protection from Eviction Act 1977.

[3] para 4A(1), Sch.1 Housing Act 1985.

[4] reg 5(1)(e) Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006 SI 2006/1294.

[5] reg 5(2) Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006 SI 2006/1294.

[6] s.9(2) Asylum and Immigration Act 1996.

[7] s.159 Housing Act 1996.

[8] s.160A Housing Act 1996, as inserted by Housing Act 2002.

[9] R v Tower Hamlets LBC ex parte Kimvono, 5 December 2000, QBD.

[10] s.115 Immigration and Asylum Act 1999.

[11] Social Security (Immigration and Asylum) Consequential Amendments Regulations 2000 SI 2000/636.

[12] Szoma v Secretary of State for the DWP [2005] UKHL 64.

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