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.

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 team 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]

Asylum accommodation offers limited rights under licence agreements. If providers do not meet repair standards, routes to occupiers include:

• complaints

• environmental health action

• legal action

Occupancy agreements and provider obligations

UKVI accommodation is provided under an occupancy agreement. The asylum seeker is required to sign the agreement when they move into the accommodation.

An occupancy agreement is usually a licence to occupy, as a result, the statutory repairing obligations under section 11 of the Landlord and Tenant Act 1985 do not apply.

An occupancy agreement should state that the landlord has an obligation to repair and manage the property. The obligation may be an express duty.

There is also a contractual agreement between the accommodation provider and UKVI, setting out terms regarding the condition of the property. The contract requires the provider to have an internal complaints procedure so asylum seekers can raise issues such as:

• disrepair

• housing conditions

• lack of utilities

If an asylum seeker is unhappy with the outcome of their complaint, they can contact the Asylum Helpline.

Duty to inspect accommodation

UKVI has a statutory duty to ensure that accommodation is 'adequate' [5].To meet this duty UKVI must inspect accommodation and ensure that the provider is complying with the basic standards.

Taking legal action

UKVI accommodation is offered on a ‘no choice’ basis and a person can be evicted from UKVI accommodation without a court order. This means that their options for taking legal action about conditions might be limited

Personal injury

An asylum seeker that suffers personal injury because of the conditions of the property may be able to bring a claim under occupier's liability.

Local authority inspections

Local authorities can inspect asylum accommodation and take enforcement action where conditions pose a risk to health. Action could include:

• requiring repairs

• addressing statutory nuisances

Requesting an inspection

The asylum seeker can ask the local authority to inspect the accommodation if it is in poor condition. For example:

• disrepair

• lack of amenities

• unsafe fire escape

Enforcement powers

An inspector can assess risks to health and safety using the Housing Health and Safety Rating System [6].

If a hazard is identified, the local authority can serve an improvement notice requiring the owner to carry out repairs. If the owner fails to comply, the local authority can:

• take enforcement action, or

• carry out the work itself and recover the cost from the owner

Find out more about HHSRS enforcement on Shelter Legal.

Judicial review

If the local authority fails to act, an asylum seeker could consider applying for judicial review.

Statutory nuisance

Action may be taken under the Environmental Protection Act 1990 if the property condition is found to be prejudicial to health or a nuisance.[7]

An asylum seeker can bring a claim by serving a 21 day notice on the property owner at their registered office [8] If the landlord still does nothing, the asylum seeker can start proceedings to prosecute the landlord in the magistrates’ court. The asylum seeker must provide an independent environmental health officer's report as evidence. Legal assistance is usually required.

Find out more about statutory nuisance at Shelter Legal.

Claims against the Home Office

In some cases, the asylum seeker could take action against the Home Office. For example, where there is evidence of a failure to safeguard children's welfare [9] .

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[10]

• a family who were housed in a hotel room, forcing a newborn to sleep on the floor[11]

• 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[12]

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.[13]

Asylum applicants claim money using an identity card, the application registration card, known as the ARC, which is issued by UKVI asylum intake unit. 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[14]

• there is a specific risk of serious racial harassment in the area they are being dispersed to[15]

• dispersal will interfere with the welfare of a child. It was decided in the case of a torture survivor with HIV[16] 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.[17] 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,[18] 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.[19]