Eligibility for support from UK Visas and Immigration

To be eligible for support from UK Visas and Immigration (UKVI) an asylum seeker must be excluded from social or welfare support and at risk of destitution.

This content applies to England

Criteria for asylum support

To be entitled to asylum support, a person must be:

  • an asylum seeker, or the dependant of an asylum seeker, and

  • excluded from social or welfare support, and

  • destitute or likely to become destitute within 14 days.[1]

Eligibility for asylum support

Eligibility for asylum support is restricted to asylum seekers and their dependants as defined in section 94(1) of the Immigration and Asylum Act 1999. Other categories of immigrants are not eligible because they are not asylum seekers according to the definition in section 94(1), and the Immigration and Asylum Act 1999 excludes 'persons subject to immigration control' from benefits and most other welfare provision, including asylum support.

For support purposes, an asylum seeker is a person who is at least 18 years old and who has made a claim for asylum that has been recorded by the Home Secretary, but the claim has not yet been decided.[2] A claim is not considered to have been decided if it is being appealed, for example to the First-tier Tribunal (Immigration and Asylum Chamber).

A statutory review that is considered by the Administrative Court does not count as an appeal.

Dependants of an asylum seeker

As well as the asylum seeker, any dependant of an asylum applicant can make a claim for asylum support (although one application can include the entire household).[3]

A person is the dependant of an asylum seeker if they are:

  • the husband, wife or civil partner of the asylum applicant

  • below the age of 18 and the child of the asylum applicant or of their spouse or civil partner

  • under the age of 18 and a member of the asylum applicant's family or the close family of their spouse or civil partner

  • a child under the age of 18 who has been living as part of the asylum seeker's household, either since birth or for at least six of the 12 months before the application for asylum is made

  • being cared for by the asylum applicant or someone in their household because of a disability and is either a member of the applicant's family or that of their spouse or civil partner, or has been living as part of the asylum seeker's household since birth or for six of the 12 months before the claim is made

  • living with the asylum seeker as a member of an unmarried or same-sex couple for at least two of the three years before the claim is made or the date they joined the asylum seeker in the UK. The High Court held that this condition does not breach either Article 8 or 14 of the ECHR[4]

  • a person who is being treated by the Home Office as the dependant of an asylum seeker for the purposes of the asylum claim (although it would usually only be the husband, wife or civil partner, or the child of an asylum seeker who is usually treated as an asylum seeker, the Home Office can decide who else to treat as a dependant)[5]

Exclusion from support

An asylum seeker whose entire household is eligible for means-tested benefits, ie income support, income-based jobseeker's allowance, housing benefit and council tax benefit, will be excluded from consideration for asylum or temporary support.

Destitution

An applicant who does not have access to adequate accommodation or who cannot meet their own or their dependents' essential living needs is destitute.[6]

In assessing whether the applicant is destitute, UKVI takes into account the income and assets that are available to the applicant, and whether or not these are enough to meet their and their dependants' essential living needs.[7] If the asylum applicant is currently occupying accommodation, the adequacy and suitability of this is also be assessed.

The factors that must be taken into consideration in assessing the adequacy of the applicant's accommodation include if:[8]

  • it would be reasonable for the person to continue to occupy the accommodation: this is assessed in view of the general circumstances in relation to housing in the district of the local housing authority where the accommodation is situated[9]

  • they can afford the accommodation

  • the accommodation is provided as temporary support under section 98 of the Immigration and Asylum Act 1999 while the applicant's claim for support is being considered

  • the person can secure entry to the accommodation

  • where the accommodation is a movable structure such as a vehicle or caravan, the applicant has a place where they are permitted to park it and live in it

  • the accommodation is available for occupation by the person's dependants together with them

  • it is likely that if the person continues to live in that accommodation, that they or any dependants will suffer domestic abuse or violence

In one case, the High Court held that an applicant who had retained indefinite leave to remain (ILR) pending the outcome of an appeal against a deportation order, remained eligible for social security benefits and therefore was not destitute and not entitled to asylum support accommodation, despite the fact that due to the nature of his appeal he met the statutory definition of an asylum seeker.[10]

Applications for asylum support

An asylum applicant who wants to apply for support from UK Visas and Immigration (UKVI) can obtain an application form from One Stop Services. Copies of the form can also be downloaded from UKVI. There are also guidance notes explaining to the applicant how the form should be completed.

A One Stop Service can also help new asylum seekers to complete the form and provide an interpreter where one is needed. Legal Help (a Legal Aid level of service) may be available for advice about this process where there are questions about entitlement or other complications.

One form is sufficient for an asylum seeker whose application includes a request for support for their dependants. If

A person who wishes to obtain asylum support as the dependant of a person who is already being supported by UKVI does not have to complete another application on notification. They do need to send a letter or fax to UKVI notifying them of the change of circumstances. A failure to do so is a breach of the conditions of support, and can lead to support being withdrawn.

The form requires details of:

  • the asylum seeker and their dependants, including the stage that their asylum application has reached

  • the type of support sought (ie accommodation and subsistence or subsistence only)

  • current accommodation

  • the resources available to the applicant, and

  • any disabilities or special needs

Documentary evidence of the information provided, such as the applicant's identification card (where available) is also required. The applicant must also send passport-size photographs of themselves and of any dependants specified in their application.

Help to apply for asylum support

A number of voluntary sector agencies such as the Migrant Helpline, Refugee Action and the Refugee Council are funded by UKVI to help identify eligible asylum applicants and to assist them in making their applications for asylum support.

This service is known as 'reception assistance', and these organisations may arrange temporary UKVI support under section 98 of the Immigration and Asylum Act 1999 while an application for support under section 95 is still being considered.

Care Act or Children Act support

In some cases a mix of support is required, provided both by UKVI and social services.

Adult asylum seekers who need care and support because of illness or disability may receive assistance through social services under the Care Act 2014 instead of through UKVI.

Unaccompanied asylum seeking children can get assistance under the Children Act 1989.

Limits to asylum support for in-country applicants

Section 55 of the Nationality, Immigration and Asylum Act 2002 limits access to support for in-country asylum applicants.

The Home Secretary may deny housing and support to any asylum seeker who fails to claim asylum 'as soon as reasonably practicable' after arriving in the UK,[11] unless their human rights would be breached.

Asylum seekers who can give a credible explanation, within three days of their arrival, of how they arrived in the UK, are considered to have made their claim 'as soon as reasonably practicable' under section 55.

Article 3 breach

Section 55 was successfully challenged in the courts on the grounds that the denial of state support to asylum seekers would leave them destitute and at risk of inhuman and degrading treatment, in breach of Article 3 of the European Convention on Human Rights. The House of Lords held that as soon as an asylum seeker who had been refused support on the basis of not claiming as soon as reasonably practicable made it clear that there was a imminent prospect of a breach of their Article 3 rights, the Secretary of State had the power under section 55 and a duty under the Human Rights Act 1998 to act to avoid a breach.[12]

The House of Lords confirmed that in order for the Article 3 threshold to be reached, it was necessary to look at the full package of restrictions and deprivations suffered by the asylum seeker and decide, on a common-sense basis, whether it was so severe that it could properly be described as inhuman and degrading treatment. In all three cases, the asylum seeker was prevented from working, had no means at all, no available support and was deprived of shelter, food, and the basic necessities of life.

It is not inevitable that anyone refused asylum support on the basis of section 55 will be able to later claim support under Article 3. An asylum seeker who has been denied access to support will still have to demonstrate that such denial will amount to inhuman and degrading treatment and that they have no other means of obtaining support.

The essential points to note are:

  • asylum seekers who do not claim asylum 'as soon as reasonably practicable' after arriving in the UK are denied asylum support

  • local authorities still have a duty to provide support under section 18 of the Care Act 2014 where an asylum seeker has a need for care and support that does not arise solely from destitution[13]

  • section 55 does not apply to people with dependent children or to unaccompanied asylum seeking children (who remain the responsibility of social services)

  • section 55 does not apply where this would involve a breach of an individual's human rights under the European Convention on Human Rights

Challenging a section 55 decision

The procedure for challenging a section 55 decision is to send a letter to UKVI to explain why the asylum claim was made as soon as reasonably practicable and/or why the refusal of support may interfere with the asylum seeker's Article 3 rights.

If UKVI upholds the section 55 decision, the remedy is judicial review.

UKVI interpretation of section 55 is contained in its guidance Policy Bulletin 75.[14]

Last updated: 24 March 2021

Footnotes

  • [1]

    s.95(1) Immigration and Nationality Act 1999.

  • [2]

    s.94(1) Immigration and Asylum Act 1999.

  • [3]

    reg 3(1) Asylum Support Regulations 2000 SI 2000/704, as amended by Articles 1-2 and Sch.12 of Civil Partnership Act 2004 (Amendments to Subordinate Legislation) Order 2005.

  • [4]

    R (on the application of Chen) v (1) Secretary of State for the Home Department; (2) First Tier Tribunal (Asylum Support) [2012] EWHC 2531 (Admin).

  • [5]

    reg 2(4) Asylum Support Regulations 2000 SI 2000/704. See also paras 349/352F Immigration Rules 1994, as amended.

  • [6]

    s.95(3) Immigration and Asylum Act 1999.

  • [7]

    reg 6 Asylum Support Regulations 2000 SI 2000/704.

  • [8]

    reg 8(3) Asylum Support Regulations 2000 SI 2000/704.

  • [9]

    reg 8(4) Asylum Support Regulations 2000 SI 2000/704.

  • [10]

    R (AT (Guinea)) v Secretary of State for the Home Department [2019] EWHC 2709 (Admin); see also ss. 94 and 95 Immigration and Asylum Act 1999.

  • [11]

    s.55 Nationality, Immigration and Asylum Act 2002.

  • [12]

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

  • [13]

    s.21 Care Act 2014.

  • [14]

    Policy Bulletin 75.