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Negative asylum decision

This content applies to England

What happens after an asylum seeker receives a negative decision on her/his asylum claim. The availability and process of being granted support under section 4 of the Immigration and Asylum Act 1999, known as 'hard cases' support.

Negative decision

Where an asylum seeker who has been dispersed receives a negative decision on her/his application for refugee status, s/he will normally have to leave UK Visas and Immigration (UKVI) - formerly the UK Border Agency - accommodation within 21 days of receiving the decision. The asylum applicant may choose to exercise any right of appeal, but if there is no further right of appeal or the appeal is unsuccessful, s/he will be required to leave the accommodation within 21 days of being told the outcome of the appeal (but see Section 4 support below).

For information about asylum seekers' access to public sector housing and social security support, please see the Housing and welfare rights page.

Section 4 support (previously Hard Cases support)

If a person's claim for asylum has been refused, and s/he is no longer an asylum seeker for support purposes, s/he may still be able to obtain section 4 accommodation and subsistence from UKVI.[1] The scheme was introduced by the Immigration and Asylum Act 1999, and has been amended by subsequent legislation.[2]

An asylum applicant who is considered eligible for section 4 support would be provided with accommodation on a no-choice basis, supermarket vouchers, and travel for limited purposes. Additional vouchers are available for pregnant women and new mothers.[3] In some areas of the UK, applicants are issued with electronic cards pre-loaded with money instead of vouchers. However, support under section 4 cannot extend to include the provision of stand-alone facilities (eg food vouchers) where accommodation is not also provided or arranged.[4]

Application forms for section 4 support are available from UKVI.

Section 43 of the Immigration, Asylum and Nationality Act 2006 gives local authorities new powers to provide accommodation on behalf of UKVI, for example 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[5] or a non-secure tenancy under the Housing Act 1985.[6]

Who is eligible for section 4 support?

To be eligible for section 4 support, the person must:

  • have had her/his claim for asylum decided, and no longer be an asylum seeker for support purposes, and
  • be destitute and fall into one or more of the following categories:
    • is taking all reasonable steps to leave the UK or place her/himself in a position to do so, including complying with attempts to obtain travel documents
    • is unable to leave the UK because of a physical impediment to travel or for some other medical reason, eg is in a late stage of pregnancy. The word 'unable' is given its ordinary meaning, and does not imply any question of whether or not it is 'reasonable' to leave the UK[7]
    • in the opinion of the Secretary of State, there is currently no viable route to return to the person's county of origin (this previously applied to northern Iraq)
    • has applied for judicial review of a decision in relation to her/his asylum claim and has been granted permission to proceed
    • if provision of support is necessary to avoid a breach of a person's Convention rights within the meaning of the Human Rights Act 1998. This includes cases where a failed asylum seeker has made a fresh claim for asylum (see below) that has not been recorded by the Secretary of State.

Advisers should note that if an asylum seeker is eligible for support under section 18 of the Care Act 2014 then s/he will not be considered 'destitute' and therefore will be ineligible for section 4 support.[8]

For more information on this point see the section on Help for ineligible adult migrants. Any support available to an asylum seeker has to be taken into account when deciding whether or not s/he is destitute.[9]

In a case concerning a family of failed asylum seekers with a 'child in need', the High Court held that the UKVI's power to provide section 4 support was residual in respect of the local authority's powers and duties under section 17 of the Children Act 1989. The local authority could not refuse, or withdraw, support and accommodation to a 'child in need' and his family on the basis that section 4 support was, or might be, available from UKVI, unless it could show that:[10]

  • UKVI was able and willing (or if not willing could be compelled) to provide section 4 support, and
  • section 4 support was sufficient to meet the child's assessed needs. 

Conditions attached to the provision of section 4 support

The provision of section 4 support can be made conditional on the recipient performing community activities. However, so far UKVI has not identified a voluntary organisation able to assist in running such activities. The intention is that when deciding whether to compel a section 4 applicant to take part in community activities, these factors should be taken into account:

  • the likely length of time the recipient will be eligible for accommodation
  • the arrangements that have been made in regard to community activity in the area the accommodation is provided
  • health and safety standards
  • whether the recipient is unable to participate in community activity due to physical and or mental health reasons
  • whether the recipient has care of a dependent child or is another person's carer
  • the person's suitability for community activity.

The other conditions for section 4 include:

  • complying with standards of behaviour
  • reporting as and when required
  • residing at the required address
  • not to be absent from the accommodation for seven consecutive days and nights or 14 days and nights within a six month period
  • taking the required steps to leave the UK (if this criteria applies).

Section 4 appeals

A person refused section 4 support has a right of appeal to the First-tier Tribunal (Immigration and Asulum Chamber).[11] However, there is no right of appeal in respect of location or adequacy of the accommodation, and any challenge to these factors would have to be by way of judicial review.

Fresh asylum claims and section 4 support

In some cases, after an asylum claim is refused, new evidence comes to light or there is a significant change of circumstances in the applicant's country of origin. A failed asylum seeker may make a fresh claim for asylum and/or a new claim under Article 3 (prohibition of torture) of the European Convention on Human Rights (ECHR). Any fresh claim must be sufficiently different from the earlier claim so that it has a realistic prospect of success. If a fresh claim is made and recorded by the Secretary of State under the Immigration Rules, the position is clear - the applicant is once again an asylum seeker. If the claim has not yet been recorded, then it may lead to an entitlement to support or assistance under section 18 of the Care Act 2014 if there are care needs.

The High Court has rejected the argument that where a failed asylum seeker has made a fresh application and the Article 3 threshold would be crossed (ie the person is in the position detailed by the House of Lords in the Limbuela case.[12] (see the page on Late claim for asylum), it is always necessary for support to be provided.[13] The court accepted that while it was a matter for the Secretary of State to take a decision as to what constitutes a fresh claim, a UKVI caseworker, when considering section 4 support, was not prohibited from making any sort of evaluation of the fresh claim. The court concluded that each case would turn on its own facts but that in many, possibly the great majority of cases, it may well be inappropriate for the UKVI or a local authority to embark on a consideration of the merits of a fresh claim.

In a different case, the High Court held that the UKVI's policy that renewed asylum applications from failed asylum seekers who were or risked being destitute had to be considered before their applications for section 4 support, unless 15 working days had elapsed, was unlawful because it created an unacceptable risk of a breach of their Article 3 rights under the ECHR.[14] As a result, the UKVI issued revised guidance to its caseworkers stating that a decision on the further submissions of a failed asylum seeker and her/his application for section 4 support should be considered together if possible and, in cases where a speedy determination of the section 4 application cannot be made because of time needed to properly consider the further submissions, the section 4 application can and should be determined first and within five working days.

The Refugee Council has issued a useful briefing explaining these changes to the process for those claiming section 4 support having made further submissions or a fresh asylum claim.

[1] s.4 Immigration and Asylum Act 1999.

[2] Asylum and Immigration (Treatment of Claimants, etc) Act 2004; Immigration and Asylum (Provision of Accommodation to failed Asylum Seekers) Regulations 2005 SI 2005/930; Immigration and Asylum (Provision of Services or Facilities) Regulations 2007 SI 2007/3627.

[3] Immigration and Asylum (Provision of Services or Facilities) Regulations 2007 SI 2007/3627.

[4] R (on the application of (1) MK (2) TM) v Secretary of State for the Home Department [2011] EWCA Civ 671.

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

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

[7] R (on the application of LB) v First-tier Tribunal (Asylum Support) and Secretary of State for the Home Department [2015] EWHC 895 (Admin).

[8] Croydon LBC and another v R (on the application of AW, A and Y) [2007] EWCA Civ 266.

[9] reg 6(4) Asylum Support Regulations 2000 SI 2000/704; under s.95(5) and (7) Immigration and Asylum Act 1999.

[10] R (on the application of (1) VC and others (2) K) v Newcastle CC [2011] EWHC 2673 (Admin); see also R (on the application of FA) v Redbridge LBC [2018] EWHC 2189 (Admin).

[11] s.4 Immigration and Asylum Act 1999 as amended by the Asylum and Immigration (Treatment of Claimants, etc) Act 2004.

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

[13] R (on the application of AW) v Croydon LBC; R (on the application of A, D and Y) v Hackney LBC [2005] EWHC 29.

[14] (1) MK (2) AH v Secretary of State for the Home Department & Refugee Action (Intervener) [2012] EWHC 1896 (Admin).

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