Accommodation for asylum seekers

Destitute asylum applicants who have been accepted as eligible for support from UK Visas and Immigration (UKVI) are housed in regions throughout the UK on a 'no choice' basis. Areas used for dispersal include Glasgow, Birmingham and Manchester. There is no dispersal accommodation in London or the south east.

UKVI does not directly provide the support itself, but has the responsibility for ensuring that eligible destitute asylum applicants are provided for.

UKVI enters into contracts with accommodation providers including local authorities, registered social landlords (housing associations) and private landlords.

The accommodation provider is responsible for meeting the costs of heating, light and water, as well as council tax, at the allocated premises. This is stated in the contractual agreement between UKVI and the accommodation provider.

The accommodation provider also has other support responsibilities for the asylum seekers, including informing them about local services. There is no formal agreement between the accommodation provider and the asylum seeker, and the asylum seeker has no security of tenure and cannot rely on any implied covenants of repair.

The asylum seeker can complain to the accommodation provider about poor housing conditions, and to UKVI if the problem is not resolved. They may also wish to complain to the local council's Environmental Health Officer if the accommodation is in a such a condition that it may have a detrimental impact on their health or safety.

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 is not a secure tenancy,[2] The Housing Act 1988 provides that where a tenancy is provided by a private landlord for the same purpose, it is not an assured or an assured shorthold tenancy.[3]

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]

UKVI accommodation is provided under an occupancy agreement. The asylum seeker is required by the accommodation provider to sign the agreement when they move 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 is also 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 has 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.

Asylum seekers must contact One Stop Services for advice if they are unhappy with the outcome of their complaint.

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

An occupancy agreement entered into by an asylum seeker is most likely to be construed as a licence to occupy accommodation, without an implied obligation to repair the property (under section 11 of the Landlord and Tenant Act 1985). 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 they are on the property.

Because an asylum seeker generally has no security of tenure, there are difficulties in bringing a case against the property owner.

If the accommodation 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.

Action could be taken against the property owner under the Environmental Protection Act 1990 if the state of the property is found to be prejudicial to health or a nuisance.[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, they can serve an Improvement Notice on the owner requiring them 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.

The asylum seeker should consider applying for judicial review if the environmental health officer does not act in response to the asylum seeker's complaint.

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. They 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 must 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.

An asylum seeker who is contemplating enforcement action against a private landlord must be advised that the landlord may take possession action against them, and the fact that they are merely a licensee means that there is little they can use as a defence.

It may be possible to take action directly against the Home Office, for example where there is evidence of a failure to safeguard the welfare of children.[7] Examples of successful proceedings include:

• an asylum seeker and their two children, one of whom suffered from autism and significant behavioural problems, who were accommodated in a studio flat for 14 months[8]

• a family who were housed in a hotel room, forcing a newborn to sleep on the floor[9]

• the Home Office being given 14 days to find suitable accommodation for a family with an autistic child who had spent over a year living in unsuitable conditions[10]

Dispersed asylum applicants receive a weekly subsistence allowance.

According to the regulations that provide for the payments, the subsistence payable is quoted 'as a general rule', and there is scope for asylum seekers to receive more or less than this level of support, where appropriate.[11]

Asylum applicants claim money using an identity card, the application registration card, known as the ARC, which is issued by UKVI asylum screening unit in Croydon or Liverpool. The cardholder is required to present themselves at the specified post office with their application registration card, the details of which are verified before they receive payment in cash.

There are few circumstances in which an asylum seeker can establish that it is not reasonable to disperse them out of London and the south east of England to other parts of the UK.

An asylum applicant may be allowed to remain in London and the south east if, for example:

• they have found alternative housing with a friend or relative and can claim subsistence-only support

• they are too ill to travel and have a doctor's note to prove this

• in the case of a female asylum seeker, she is at a late stage of pregnancy and unable to travel

• dispersal will interfere with a course of medical treatment or there is no medical treatment for the particular condition available in the dispersal area (see Healthcare needs and pregnancy dispersal guidance)

• they have been accepted for treatment at the Medical Foundation for the Care of Victims of Torture[12]

• there is a specific risk of serious racial harassment in the area they are being dispersed to[13]

• dispersal will interfere with the welfare of a child. It was decided in the case of a torture survivor with HIV[14] that dispersal was unlawful because it would interfere with the welfare of his son, who was traumatised after having observed the torture of his father and having been racially harassed, and had been receiving support from his school and social services in London

On 6 February 2005, an EC Directive setting out minimum standards for the reception of asylum seekers was implemented.[15] One of the effects of the Directive has been that UKVI no longer withdraws support where a childless asylum seeker fails to travel to a dispersal area. Instead, the offer of the accommodation in the dispersal area remains open.

As there has been no termination of support, the asylum seeker cannot appeal the decision to the First-tier Tribunal (Immigration and Asylum Chamber). The only means of challenge is judicial review. An asylum seeker would make the challenge on the ground that accommodation is not adequate, but they should consider making the application after first moving into the accommodation, as UKVI do not provide other support pending the outcome of any judicial review unless the asylum seeker obtains an interim order from the High Court.

UKVI accommodation will give rise to a local connection for the purposes of the Housing Act 1996. Section 11 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 provided that such accommodation is accommodation of choice.

An asylum seeker will have a local connection with the last district in which UKVI accommodation was provided. If the asylum seeker was accommodated in Scotland and presents as homeless in England or Wales, no full housing duty arises. Instead, the housing authority may decide that accommodation is available, affording the applicant a reasonable opportunity to obtain housing, or may provide advice and assistance to enable the applicant to secure accommodation. This would not be the case if the asylum seeker could demonstrate a local connection with the district to which they applied.

Where the asylum seeker in asylum support accommodation complains about domestic abuse, the Home Office’s guidance states that the following principles apply:

• the presumption is that the victim should be believed and caseworkers must agree and adhere to a safe means of communicating with the victim

• the person and their children must immediately be offered and transferred to safe and suitable alternative accommodation (no requirement for accommodation providers to obtain prior Home Office consent, but a report to the Home Office must be made without delay). Suitability considerations include close physical proximity to specialist support services and agencies

• where the victim wishes to remain in their current accommodation, consideration must be given to relocating the perpetrator

• where the victim wishes to contact the police, they should be supported to do so and reassured that doing so will have no adverse impact on their asylum claim

• any reports of domestic abuse must be treated in confidence and usually only disclosed to the police, social services or health services with the victim’s informed consent, although in some high-risk cases, referrals may have to be made without consent

• the victim’s consent to make a child protection referral to social services should be obtained wherever possible, although where a child may be at risk of harm a referral must be made whether or not consent is obtained

• the victim must be referred to a specialist organisation for assessment and supported by a domestic violence specialist worker (in accordance with the Reporting domestic abuse for organisations) and the Home Office and accommodation provider must take into consideration and act on the recommendations made by the specialist organisation, including in relation to safe alternative accommodation

If, at the time of reporting domestic abuse, the victim is not accommodated by the Home Office but is eligible for asylum support, priority should be given to finding safe alternative accommodation for the victim and any children, as a matter of urgency.

The Home Office guidance states that in these cases, once it has been established that the victim is an asylum seeker, it is usually unnecessary to make detailed enquiries to establish destitution or require a full application for section 95 support at the initial stage. However, where further enquiries into eligibility for section 95 accommodation are needed, in the meantime the victim would normally qualify for temporary support. This may include providing accommodation at a refuge.

If UKVI fails to provide alternative accommodation where it clearly should, the asylum seeker can challenge this by way of judicial review.

The Protection from Eviction Act 1977 does not apply to asylum seekers occupying UKVI accommodation,[16] 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.

The Home Office’s guidance on racial harassment states that victims must be encouraged to report to the police or to agree for their report to be passed to the police, and that incidents should be reported to the asylum support office for the region where the incident occurred. Where the victim withholds their consent, an anonymous report should be provided.

The accommodation provider must, with the agreement of the Home Office, arrange safe temporary housing if the victim’s safety is at risk.

The responsibility for the support and accommodation of asylum applicants below the age of 18 who arrive in the UK without close adult family members falls to local authorities under the Children Act 1989. If social services refuse to provide accommodation, it may be possible to challenge the decision by judicial review.[17]