Home Office change in practice increases risk of homelessness for recognised refugees

The Home Office is reported to have reduced the notice period a successful asylum seeker is given to leave their asylum accommodation once they have been granted refugee status. It was 28 days and now it is reported to be just 7 days. If so, this just isn’t enough time for refugees to get a job or access benefits, as previous research has conclusively shown. In 2018, the Red Cross even proposed increasing the period to 56 days to reduce the risk of homelessness for newly recognised refugees.

The Home Office has said that there has been no change in policy. So what is actually happening?

When a person is granted refugee leave and they are in asylum accommodation (note I am only referring to support provided under section 95 of the Immigration and Asylum Act 1999 in this article), four things should happen. They should be sent:

1. An asylum decision letter,
2. Their biometric residence permit,
3. A “discontinuation” letter by the Home Office telling them their support will end, and
4. A notice to quit from the accommodation provider.

The order in which these happen is very important, with disastrous consequences if not done effectively.

Document one: the asylum decision letter

The asylum decision is important in the context of asylum accommodation as it means the end date for the asylum claim can be calculated. There are two separate bits of legislation that are relevant to this. First, section 94(3) of the Immigration and Asylum Act 1999 states:

For the purposes of this Part, a claim for asylum is determined at the end of such period beginning—

(a) on the day on which the Secretary of State notifies the claimant of his decision on the claim, or

(b) if the claimant has appealed against the Secretary of State’s decision, on the day on which the appeal is disposed of,

as may be prescribed.

The Asylum Support (Amendment) Regulations 2002 sets out the ‘prescribed period’ in Regulation 2 of the Asylum Support Regulations 2000 as follows:

(2) The period prescribed under section 94(3) of the Act (day on which a claim for asylum is determined) for the purposes of Part VI of the Act is 28 days where paragraph (2A) applies, and 21 days in any other case.

(2A) This paragraph applies where:

(a) the Secretary of State notifies the claimant that his decision is to accept the asylum claim;

(b) the Secretary of State notifies the claimant that his decision is to reject the asylum claim but at the same time notifies him that he is giving him limited leave to enter or remain in the United Kingdom; or

(c) an appeal by the claimant against the Secretary of State’s decision has been disposed of by being allowed.

Read together, these mean that a claim for asylum is officially ended 28 days after a person has been told that they are granted leave, or that they have succeeded in an appeal. If their claim has been unsuccessful it is deemed concluded 21 days after they have been notified of the decision (assuming no onward appeal). If the decision is sent by post then an additional two days are given for service.

Document two: the biometric residence permit

Legal practitioners and anyone else working in this area will be aware of problems with delays in biometric residence permits being issued. In the case study below the issues in obtaining the biometric residence permit are taken from a recent case of mine where it took just over a month to arrive.

Data is difficult to come by, as statistics are not published. In November 2022 the immigration minister said that they “aimed” to deliver a biometric residence permit within seven working days of the decision. He also said that their delivery partner was successfully delivering “nearly 80%” on their first attempt.

Document three: the discontinuation letter

This letter is issued by the Home Office to the person stating that their asylum support will be stopped from a specific date. This will be the same date as in the notice to quit. The letter provides the reasons that asylum support is being stopped.

People don’t always receive copies of their discontinuation decision letter before the notice to quit is given to them, if at all. Reasons for this can include Home Office record keeping, poor administration and issues with the postal service.

This letter is needed in order to appeal to the asylum support tribunal (where an appeal is permitted). People should contact Migrant Help if they need a copy of the discontinuation letter (CopySupportDecisions@migranthelpuk.org). In practice the asylum support tribunal does accept appeals with the notice to quit as they are aware of the issues with receipt of the letter.

Document four: the notice to quit

The notice to quit is essentially the eviction letter. This is received from the accommodation provider and is usually hand-delivered to the affected person. The Home Office notifies the accommodation provider that support is to be stopped on a specific date and asks them to issue the notice to quit.

The legal framework is as follows:

Regulation 22 of the Asylum Support Regulations 2000 states:

Notice to quit

22.—(1) If—

(a) as a result of asylum support, a person has a tenancy or licence to occupy accommodation,

(b) one or more of the conditions mentioned in paragraph (2) is satisfied, and

(c) he is given notice to quit in accordance with paragraph (3) or (4),

his tenancy or licence is to be treated as ending with the period specified in that notice, regardless of when it could otherwise be brought to an end.

(2) The conditions are that—

…

(b) the relevant claim for asylum has been determined;

…

(3) A notice to quit is in accordance with this paragraph if it is in writing and—

…

(b) in a case where the Secretary of State has notified his decision on the relevant claim for asylum to the claimant, specifies as the notice period a period at least as long as whichever is the greater of—

(i) seven days; or

(ii) the period beginning with the date of service of the notice to quit and ending with the date of determination of the relevant claim for asylum (found in accordance with section 94(3) of the Act).

The notice period that they must be given is either seven days or the date their asylum claim ended, whichever is the longer.

What was happening in practice?

The issue seems to turn on when the person has been notified of the asylum decision for the purposes of section 94(3)(a). From what point does the 28 day clock start running on to give the relevant date the asylum claim has been determined? Previously, the practice was to treat the issuing of the biometric residence permit as the decision and the 28 days until the claim was considered ended ran from there.

Although the Home Office guidance was silent on this point, the guidance on claiming universal credit as a refugee states “If you’re receiving asylum support from the Home Office (money and/or accommodation), this will end 28 days after getting your Biometric Residence Permit (BRP)”.

Last year, during debates on the Nationality and Borders Bill (as it then was), Baroness Williams, on behalf of the government stated:

The noble Baroness, Lady Lister, talked about some of the things that have been done during the pandemic that have actually improved the situation. These include ensuring that the 28-day period does not start until refugees have been issued with a biometric residence permit, the document that they need to prove that they can take employment and apply for universal credit, and that the national insurance number is printed on the permit, which speeds up the process of deciding a UC application.

Although referred to as a change made due to the pandemic, this practice pre-dated the pandemic. In a Westminster Hall debate on extending the 28 day period on 4 March 2020, then immigration minister Chris Philp stated the following:

First, the 28-day period is not necessarily triggered by the grant of status; it is started only when the biometric residence permit is issued. That is the document needed to establish the status and enable people to apply for benefits and so on without getting unduly delayed by bureaucratic error. I am told that if administrative errors occur, that resets the 28-day period. 

The Home Office’s ‘Welcome: a guide to new refugees’ states:

You will receive your Biometric Residence Permit within 5 to 7 working days from when you have been granted refugee or Humanitarian Protection status. If you have been receiving support from the Home Office this will stop 28 days after your BRP has been sent to you.

So previously after receiving their biometric residence permit a person would usually be issued with the discontinuation letter giving 21 or 28 days’ notice that they will be evicted. This is logical. There is pretty much nothing a person can do without their biometric residence permit, which is also used to issue their national insurance number. Home Office practice varied, though, and there did not seem to be any fixed period when the discontinuation letter would be sent.

What has changed?

It is difficult to be precise here given the lack of transparency from the Home Office. However it appears that they may now be treating the asylum decision letter as the start point for the 28 day period until the asylum claim is ended.

That the decision is the letter and not the issuing of the biometric residence permit appears to be legally correct, however many people do not receive their permit within 28 days of the decision. This means that as their asylum claim is already deemed ended (as the 28 days from the asylum decision letter has passed), the minimum legal period for the notice to quit is seven days. This is what they are now being given.

The 28 days was already a problematic time frame as it is not enough time to do everything needed for a person to move off asylum support, for example to find a job or access benefits through their local authority. British Red Cross have written an excellent report supporting their call for the period before a person’s asylum support is cut off to be increased from 28 days to 56 days. The Westminster Hall debate also highlighted the many problems caused by the short timescales. 

What is happening with victims of trafficking who have an outstanding asylum claim?

The Home Office guidance on stopping asylum support was changed on 7 July 2023. The main change was the insertion of a new section ‘Applicant granted temporary leave with outstanding asylum claim’.

This states that where a person has been formally recognised as a victim of trafficking (i.e. received a positive conclusive grounds decision) and is granted leave on that basis but is still waiting for a decision on their asylum claim, they stop being entitled to asylum support. The guidance says that the grant of leave:

causes a change in the applicant’s circumstances which indicates they are no longer in need of asylum support as they are no longer likely to become destitute within 56 days.

When the decision to grant leave is served on the applicant, the applicant should be informed that their asylum support will cease in 28 days.

Support for this group of people is being discontinued on the basis that they are not destitute. This group will be in the same position as those with positive grants on their asylum claims. The 28 days will start ticking from the date that their leave is granted and then they will get whatever is left but no less than seven days.

Case study

Ayla has been waiting three years for her asylum claim to be processed, and she has not been permitted to work during this period. As a result of this, the Home Office has accepted that Ayla is destitute and they are providing her with asylum accommodation.

Ayla receives a letter from the Home Office on 1 June 2023 stating that she has been successful in her asylum claim and that she has been granted five years leave to remain in the UK as a refugee. The letter informs her that her biometric residence permit will follow separately.

Ayla has not heard from Migrant Help about help with applying for benefits. Ayla needs a bank account and her national insurance number in order to apply for Universal Credit. Ayla has not been able to open a bank account. She is advised that she needs to wait for her biometric residence permit.

In the meantime, Ayla has also started looking for employment. The Home Office guidance for employers carrying out right to work checks only has a brief section on asylum. For someone like Ayla who has been granted refugee status, the guidance states:

A refugee may demonstrate their right to work through the Home Office online service (if they have a BRP) or Immigration Status Document, requiring a manual check (an older form of document issued to refugees and certain other categories of migrant prior to the introduction of the BRP).

The human resources department at the company where Ayla has applied does not really know what this means, but as Ayla does not have a biometric residence permit or immigration status document they are concerned about getting fined for employing someone without permission to work. The employer may have heard the recent news that such fines are being trebled to £45,000 per worker. Ayla does not get the job.

On 1 August 2023 Ayla was contacted by the delivery service for her biometric residence permit. They said that there was a miscommunication on their part and the permit was being returned to the Home Office and that Ayla needed to contact the Home Office to arrange redelivery. When she contacted the Home Office, they said she needed to fill out the form on the website.

The Home Office responds eight days later, stating that the delivery company had tried to deliver on 11 August 2023 but there was no answer (Ayla was home all day). They ask Ayla to confirm her details.

Ayla asks her MP for assistance, the Home Office response to them is that service standards for delivery of biometric residence permits are being met and that Ayla should fill out the form on the website.

It is now 24 August 2023 and Ayla still has not received her biometric residence permit. Ayla’s asylum claim has officially ended as it has been more than 28 days since she was served with her decision. Ayla receives a letter from the Home Office giving her notice to quit her asylum accommodation, she has to leave within seven days.

Unable to work or access benefits and facing imminent street homelessness, Ayla has no option but to go to her local authority and ask for support.

So, what can be done about this?

Ask for an extension of support. This should be done by contacting Migrant Help in the usual way.  They have been asked to provide a dedicated escalation route.  

Appeal to the asylum support tribunal. Whether or not there is a right of appeal depends on the facts of the case. In many cases there may not be grounds for appeal, even if there is a right of appeal. In section 95 cases, a right of appeal will only arise if there is dispute as to whether or not the person is still an asylum seeker. This is difficult for those where the date their claim officially ends has passed.

In grant cases it has previously been possible to successfully argue that this means when the BRP is served. Now that the Home Office have changed their practices, we don’t know how the asylum support tribunal will react. For those who have been refused leave, practitioners report common examples of the Home Office getting their facts wrong (a person hasn’t received the decision, or they have lodged a valid appeal etc).

In order to appeal, a person needs a copy of their discontinuation letter. However, the asylum support tribunal also accepts the notice to quit in recognition of the fact that discontinuation letters are not always received. The asylum support tribunal also routinely accepts out of time appeals as long as there is a good reason for the delay.

The problem with using notice to quit to lodge an appeal is that these do not reveal why the person’s support is discontinued so it will be necessary at some point to get hold of a copy of the decision letter to understand what the case might be about. However, you can still protect your client’s position by putting in an in time appeal with the asylum support tribunal using the notice to quit.

Conclusion

It is bizarre that the Home Office position seems to be that they have not changed the way these evictions are handled. This is very obviously not the case. The change appears to be a very misguided way to try to reduce the hotel bill for asylum accommodation, when the delay in people being able to move on lies squarely with the Home Office. All this change is going to achieve is a great level of distress for people and the responsibility will simply shift to local authorities. The Home Office may of course view all of this as a win.

For more information on appeals against these decisions, the excellent Asylum Appeals Support Project has useful resources on their website and an advice line on 0203 716 0283 available from 2pm to 4pm Monday, Wednesday and Friday. They have also produced a briefing note on this issue.

Refugee Council and others have produced a parliamentary briefing that can be found here.