This chapter sets out what to consider when parents who are seeking asylum, or have been refused asylum, approach the local authority for assistance, and whether the local authority or Home Office will be responsible for providing support to their families.
10.1 Responsibility for providing support
Whether the Home Office or local authority will be responsible for providing accommodation and financial support depends on the type of Home Office support that a family will be eligible for under the Immigration and Asylum Act 1999: section 4 or section 95.
The local authority would need to check with the Home Office to establish the status of the parent’s asylum claim in order to determine which type of support is available to them. It will be important to obtain confirmation that the parent has claimed asylum, whether the claim is still pending and if it has been refused, the dates of the initial refusal and date the parent became appeal rights exhausted if they have received a final determination by the courts.
Responsibility for providing support is governed by legislation and case law:
- If the family are eligible for or are receiving support from the Home Office under section 95, then section 122 of the Immigration and Asylum Act 1999 prevents the local authority from providing financial support and/or accommodation to a child under section 17 Children Act 1989. Such families who approach the local authority need to be assisted to apply for section 95 support.
- If the family are eligible for section 4 support, then a referral to the Home Office for this can only be made if such support is ‘available and adequate’. The local authority must have confirmation from the Home Office that section 4 support will be provided and must be able to demonstrate that the support will meet the child’s assessed needs, although the courts have suggested that it is unlikely that section 4 support would be sufficient to meet a child’s needs.
Even when a family can be referred to the Home Office for support, either because they are eligible for section 95 support, or section 4 support has been assessed as being sufficient to meet a child’s needs, it may fall to the local authority to provide accommodation and financial support under section 17 of the Children Act 1989 if there are delays in accessing Home Office support and the child in need assessment establishes that the family have no alternative funds or housing available.
The provision of support under section 17 is not limited by Schedule 3 of the Nationality, Immigration and Asylum Act 2002, for families where the parent has a pending asylum claim which has not been finally determined, or where the parent claimed asylum at port of entry, even if they have been refused and are appeal rights exhausted.
However, the Schedule 3 exclusion will apply where the parent:
- claimed asylum after they entered the UK (rather than at the port of entry), or
- failed to comply with removal directions, or
- has been certified by the Home Office as failing to take steps to leave the UK voluntarily.
In such cases, section 17 support may only be provided where this is necessary to prevent a breach of the family’s human rights, i.e., there is a legal or practical barrier preventing them from returning to the parent’s country of origin. The local authority will need to undertake a human rights assessment as well as a child in need assessment to establish this.
10.2 Section 95 Home Office support
A person with a pending asylum or Article 3 human rights application (or appeal) may apply for support from the Home Office under section 95 of the Immigration and Asylum Act 1999 when they are destitute (have no accommodation or cannot afford to meet their essential living needs).
They can also apply for emergency support from the Home Office under section 98 of the Immigration and Asylum Act 1999 and may receive this support whilst the Home Office make a final decision on their application for section 95 asylum support.
The Home Office can provide housing and financial support (subsistence) through a card, which can be used in shops and to withdraw cash. A person who already has accommodation may request subsistence support only.
The asylum seeker’s dependants will also be provided with support. If the person’s asylum claim is unsuccessful and they become appeal rights exhausted, then support will end following a short notice period unless there is a child who was part of the household before the claim was finally determined. In such instances, support will continue until the youngest child turns 18 or they no longer meet the requirements, for example, the Home Office has evidence that they are not destitute. Due to this, most refused asylum seeking families remain supported by the Home Office and do not require local authority support.
A refused asylum seeking family will not be eligible to receive support from the Home Office under section 95 when the first child was born after the asylum claim was finally determined by the Home Office or courts, but instead may be able to apply for section 4 support. However, if a child under 18 was part of the household prior to the asylum claim being finally determined, the family should be able to access section 95 support when they have not previously claimed this.
10.3 Section 4 Home Office support
In certain circumstances, destitute refused asylum seekers may be provided with support from the Home Office under section 4 of the Immigration and Asylum Act 1999. They need to show that they:
- are taking all reasonable steps to leave the UK;
- are unable to leave the UK due to physical impediment;
- have no safe route of return;
- have been granted leave to appeal in an application for judicial review in relation to their asylum claim; or
- require support to avoid a breach of their human rights, for example they have made further submissions for a fresh asylum claim.
The support provided comprises of accommodation and subsistence, which is intended to cover the costs of food, clothing and toiletries, through a card which can be used in shops but not to withdraw cash. Subsistence support cannot be provided independently of accommodation.
The following organisations provide more information about asylum support: