Support after an asylum application is refused

Where an asylum seeker who has been dispersed receives a negative decision on their application for refugee status, they usually have to leave UK Visas and Immigration (UKVI) 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, they must leave the accommodation within 21 days of being told the outcome of the appeal (but see Section 4 support below).

If a person's claim for asylum has been refused, and they are no longer an asylum seeker for support purposes, they 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.

Support under section 4 cannot extend to include the provision of stand-alone facilities (for example 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]

To be eligible for section 4 support, the person must have had their claim for asylum decided, and no longer be an asylum seeker for support purposes.

They must also be destitute and fall into one or more of the following categories:

• they are taking all reasonable steps to leave the UK or place themselves in a position to do so, including complying with attempts to obtain travel documents

• they are unable to leave the UK because of a physical impediment to travel or for some other medical reason, for example they are 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)

• they have applied for judicial review of a decision in relation to their asylum claim and has been granted permission to proceed

The power to provide accommodation under section 4 becomes a duty if it is necessary to avoid a breach of the person's rights under Article 3 of the European Convention on Human Rights, which prohibits inhuman or degrading treatment. Support must be provided within a reasonable period of time.[8]

An asylum seeker who is eligible for support under section 18 of the Care Act 2014 is not considered 'destitute' and is ineligible for section 4 support.[9]

Any support available to an asylum seeker has to be taken into account when deciding whether or not they are destitute.[10]

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 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.[11]

The provision of section 4 support can be made conditional on the recipient performing community activities. 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)

A person refused section 4 support has a right of appeal to the First-tier Tribunal (Immigration and Asylum Chamber).[12]

There is no right of appeal in respect of location or adequacy of the accommodation. Any challenge to these factors would have to be by way of judicial review.

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.[13], it is always necessary for support to be provided.[14] 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.[15] 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.

Local authority social services departments have a duty to accommodate certain children in need in their area under the Children Act 1989.[16]

In carrying out their duties, social services have powers to provide financial assistance and acommodation to the whole family of the child in need.

Social services powers to accommodate the family of a child in need are not restricted by the family's eligibility for homelessness assistance.

Where a family of failed asylum seekers with a child in need had sought support under the Children Act 1989, the High Court held that the local authority could not refuse or withdraw support and accommodation on the basis that section 4 support was, or might be, available from UKVI, unless it could show that:

• 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

This is because UKVI's power to provide section 4 support is 'residual' in respect of the local authority's powers and duties under section 17 of the Children Act.[17]

The High Court has held that a child in a failed asylum seeking household who had previously been assessed as not 'in need' under the Children Act should have had their needs reassessed in light of the change of circumstances when the family became threatened with homelessness. The court held it was not reasonable for the authority to take a 'wait and see' approach in respect of whether section 4 accommodation and support met the child's needs before carrying out a 'child in need' assessment under the Children Act 1989, because of the residual nature of section 4 support.[18]

Where UKVI decides to suspend or withdraw support, for example because an asylum seeker has breached one of the conditions under which accommodation was being provided, the children of the asylum applicant may become eligible for support under the Children Act. In these circumstances, the local authority becomes responsible for the children. Although the Immigration and Asylum Act 1999 does not specifically mention this power, assistance under section 17 of the Children Act may include assistance for the whole family. Local authority provision of support for the whole family can be justified on the grounds that it is provided to promote and safeguard the welfare of the child.[19]