Barred from working and mainstream benefits, for many in the asylum system their only option for money and shelter is by requesting support from the Home Office. A year into the pandemic, the asylum support system has seen significant changes. This article tries to outline just a few of the ways in which the system has been affected by and responded to the crisis over the past 12 months.

Section 95 support

Support under section 95 of the Immigration and Asylum Act 1999 provides for housing and financial support for asylum seekers whose claims are ongoing, and who are – or are about to become – destitute. The financial support is minimal and the housing, provided on a “no-choice” basis, will almost always be outside London and the South East (“dispersal” accommodation).

Once granted refugee status, those in section 95 accommodation are given 28 days to find a new place to live before they are evicted. At the start of the March 2020 lockdown, the Home Office paused these evictions for a three-month period, but began again in August 2020 for those granted refugee status. Some providers have been a little more flexible than usual if the person has no other accommodation lined up, but in general it is back to “business as usual”.

Unsafe accommodation

Due to limited housing stock and the reduced number of evictions, the Home Office has increasingly relied on alternative accommodation arrangements such as hotels and, following an agreement with the Ministry of Defence, former military barracks in Kent and Pembrokeshire.

Residents of the barracks report unsafe, filthy conditions with limited access to water and electricity. The overcrowded dorms and shared bathroom facilities also means that residents are extremely vulnerable to COVID-19 outbreaks. Last week the Chief Inspector of Borders and Immigration published an emergency report following an inspection of the concerning conditions.

The use of hotels has also been problematic, with residents reporting de facto curfews put in place by hotel staff preventing them from leaving their accommodation for longer than an hour a day. Those who don’t comply with the curfew can face eviction.

The Home Office has stated that the use of hotels and army barracks for asylum seekers is only a temporary measure, and will cease when the pandemic is over. It has been a dangerous experiment with the safety of the asylum seeking population.

Section 4 support

For those refused asylum, access to housing and financial support is available from the Home Office under section 4(2) of the 1999 Act. The legal requirements for support under section 4 are more restrictive than for section 95. Not only must the person be destitute, but they must also meet one of the five conditions set out under Regulation 3(2) of the Immigration and Asylum (Provision of Accommodation to Failed Asylum-Seekers) Regulations 2005. Of particular importance is Regulation 3(2)(e), which makes accommodation available where necessary to avoid breaching the applicant’s rights under the European Convention on Human Rights.

As with asylum seekers housed under section 95, the Home Office paused evictions of destitute former asylum seekers receiving section 4 support in March 2020. But these resumed in September 2020, with the Home Office citing an easing of lockdown restrictions, meaning that destitute former asylum seekers who did not meet one of the five conditions set out in the 2005 Regulations faced eviction.

The Principal Judge of the Asylum Support Tribunal in the case of PA & MA (AS/20/09/42386 & AS/20/09/42397) expressed disapproval of this policy change, stating that ending support for destitute former asylum seekers during the pandemic may breach their Convention rights and those of wider public, giving rise to possible obligations to provide housing under Regulation 3(2)(e).

The policy change was also challenged by judicial review in the High Court. In November 2020, Mr Justice Fordham ordered that unless the Home Office had evidence that the person is no longer destitute, it should continue providing section 4 accommodation until further notice. This High Court order remains in force at time of writing; in effect it means that the March 2020 policy continues to apply to those housed under section 4.

New section 4 applicants

Despite the comments in PA & MA that Regulation 3(2)(e) likely applies for all destitute former asylum seekers during the pandemic, the Home Office has continued to refuse former asylum seekers who are accepted as destitute as not meeting the conditions set out at Regulation 3(2).

The Principal Judge’s reasoning has however been consistently followed in the Asylum Support Tribunal, with judges allowing appeals so as to avoid a breach of Convention rights. The timeframe for appeals to be heard has been a cause of concern: it can take a number of weeks to get a decision, prolonging the hardship of those the Home Office has already accepted as destitute.  

To counter this, the High Court has now introduced a streamlined procedure by which destitute former asylum seekers awaiting an appeal hearing can apply to the High Court for an order forcing the Home Office to provide emergency accommodation in the meantime.

It is DIRECTED that:

…The High Court will, until further order, be prepared to consider urgent applications, before the issuing of a claim for judicial review, for interim relief in the following category of individual cases:  Any appellant to the First-Tier Tribunal (Social Entitlement Chamber) (“FTT”) who has given notice of appeal, in accordance with rule 23 of the Tribunal Procedure (First-Tier Tribunal) (Social Entitlement Chamber) Rules 2008, against a decision of the Defendant refusing support under section 4 of the Immigration and Asylum Act 1999 (“section 4 support”) whom the Defendant accepts is destitute.

The reasons for that order were set out in the case of R (KMI) v Secretary of State for the Home Department [2021] EWHC 477. The court is anxious to reduce the turnaround time for providing accommodation.

The charity Asylum Support Appeals Project has created a helpful application form for asylum support appellants to use that does not need the assistance of a solicitor.

Conclusion

It seems that the government’s stated commitment at the beginning of the pandemic to get “everyone in” faltered last summer for destitute asylum seekers. This has largely remained the case even as the coronavirus situation deteriorated again in late 2020 / early 2021. It is somewhat ironic that for such an intensely political issue as asylum support, of the kind that judges are traditionally reluctant to adjudicate on, it has taken the courts to step in to ensure basic social security is provided.