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Security of tenure: UKVI accommodation

This content applies to England

What security of tenure an asylum seeker in UKVI (formerly UK Border Agency) accommodation has, and issues around housing conditions, harassment and domestic violence .

Excluded occupier

An asylum seeker living in accommodation provided through UK Visas and Immigration (UKVI) is an excluded occupier for the purposes of the Protection from Eviction Act 1977.[1]

The provisions of the Housing Act 1985 specifically state that a tenancy granted for the purpose of providing accommodation under Part 6 of the Immigration and Asylum Act 1999 will not be a secure tenancy,[2] and the Housing Act 1988 provides that where it is provided by a private landlord for the same purpose, it will not be an assured or an assured shorthold tenancy.[3]

Also, a grant of a tenancy by a local authority (but not the nomination of a person to be an assured tenant of a private registered provider of social housing) that is made in order to provide accommodation under the asylum support provisions is not an allocation under Part 6 of the Housing Act 1996.[4] Information on allocation of local authority accommodation can be found in Allocation of LA housing.

Housing conditions

UKVI accommodation is provided under an 'occupancy agreement'. The asylum seeker will be required by the accommodation provider to sign the agreement when s/he moves into the accommodation. The occupancy agreement should state that the landlord has an obligation (which may be an express contractual duty) to maintain (repair) and manage the property.

There will also be a contractual agreement between the accommodation provider and UKVI, setting out terms regarding the condition of the property. It will be an express term of the contract that the housing provider will have an internal complaints procedure to enable asylum seekers to complain about racial harassment or the lack of utilities, where this is the case. The accommodation provider is required to take remedial action within seven days of the complaint, and if the asylum seeker is unhappy with the outcome, s/he must be referred to One Stop Services, which will be able to advise her/him as appropriate.

To ensure that accommodation provided is 'adequate' as required by section 96 of the Immigration and Asylum Act 1999, UKVI has a duty to inspect accommodation, to ensure that the provider is complying with the basic standards.

However, an occupancy agreement entered into by an asylum seeker is most likely to be construed as a licence to occupy accommodation, and there will therefore not be an implied obligation, under section 11 of the Landlord and Tenant Act 1985, to repair the property. An alternative means of enforcing the property owner's duty may be under occupiers' liability if any personal injury is caused to the asylum seeker while s/he is on the property. However, the fact that an asylum seeker generally has no security of tenure means that there will be difficulties in bringing a case against the property owner.

If the accommodation in which the asylum seeker is placed is in a poor state of repair or does not have adequate amenities or proper fire escape, a request could be made to the local authority's environmental health officer to inspect the property. This would not be appropriate where the local authority itself is the landlord, as the authority cannot take action against itself.

If the state of the property is found to be prejudicial to health or a nuisance, action could be taken against the property owner under the Environmental Protection Act 1990.[5]

If, using the Housing Health and Safety Rating System,[6] the environmental health officer assesses that there is a 'hazard', or a risk to health and safety, in the property, s/he can serve an Improvement Notice on the owner requiring her/him to take action to remedy the hazard. Serious disrepair can constitute a hazard. If, after action by the environmental health officer, the owner refuses to carry out repairs, the local authority can either take enforcement action, or it can carry out the necessary work itself and later recover the cost from the owner of the property. If the environmental health officer does not act in response to the asylum seeker's complaint, the asylum seeker should consider applying for judicial review. For more information, see Housing Health and Safety Rating System.

Alternatively, where the environmental health officer does not take any appropriate action, the asylum seeker can take direct action under section 82 of the Environmental Protection Act 1990. S/he must serve a 21-day standard notice at the owner's registered office, and if the landlord still does nothing, the asylum seeker can start a fast-track procedure to prosecute the landlord in the magistrates' court. The asylum seeker will need to provide an independent environmental health officer's report as evidence of the state of the property, and s/he will require legal help to pay for this.

However, any asylum seeker who is contemplating enforcement action against a private landlord must be advised that the landlord may take possession action against her/him, and the fact that s/he is merely a licensee means that there will be very little s/he can use as a defence.

For more information on disrepair, see Taking action against disrepair.

In one case, where the Home Office accommodated an asylum seeker and her two children, one of whom suffered from autism and significant behavioural problems, in a studio flat for 14 months and was challenged by way of judicial review, the court held that it had breached the statutory provisions in relation to the need to safeguard and promote the welfare of children in the UK.[7]

Harassment and domestic abuse

The Protection from Eviction Act 1977 does not apply to asylum seekers occupying UKVI accommodation,[8] and any asylum seeker who is faced with harassment must complain to the housing provider, the police, or to UKVI itself. Where the harassment is from the accommodation provider, the asylum seeker should contact UKVI.

Where the asylum seeker complains about racial harassment or domestic abuse (with effect from 31 March 2013, there is a new cross-government definition of 'domestic violence and abuse' - see Definition of domestic violence for more information), UKVI should investigate the matter to decide whether or not to re-house the asylum applicant, and it will do so where it considers that there is a significant risk of violence to the person if s/he remains in the provided accommodation. UKVI has stated, however, that the police or the relevant local authority has responsibility for dealing with any reported racist incidents.[9] If UKVI fails to provide alternative accommodation where it clearly should, the asylum seeker can challenge this by way of judicial review.

[1] s.3A(7A) Protection from Eviction Act 1977 as inserted by para 73, Sch.14 Immigration and Asylum Act 1999.

[2] s.81(4A) Housing Act 1985 as inserted by para 81, Sch.14 Immigration and Asylum Act 1999.

[3] para 12A, Sch.1 Housing Act 1988 as inserted by para 88, Sch.14 Immigration and Asylum Act 1999.

[4] para 4A Sch.1 Housing Act 1988 as amended by para 81, Sch.14 Immigration and Asylum Act 1999.

[5] s.80 Environmental Protection Act 1990.

[6] s.2 Housing Act 2004.

[7] R (O) v Secretary of State for the Home Department [2019] EWHC 2734 (Admin); see s.55 Borders, Citizenship and Immigration Act 2009.

[8] s.3A Protection from Eviction Act 1977, as amended by s.169(1) and para 73, Sch.14 Immigration and Asylum Act 1999.

[9] NASS Policy Bulletin 18.

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