Immigration Act 2016 changes to asylum and local authority support

N ET WO R K No Rec ou rs e t o P ubli c F und s

The government intends to change the support that is available from the Home Office for single adults, families with a child under 18, and adult families who become appeal rights exhausted (ARE) following an unsuccessful asylum claim.

The changes to Home Office asylum support are set out in schedule 11 of the the Immigration Act 2016 (‘IA 2016’), with further details provided by the government in the family returns consultation (pdf).

These changes are not yet in force and some operational details are currently under consultation. We will keep this information updated to reflect further developments.

Councils can also refer to the comprehensive overview of the asylum support changes (pdf) provided by the Asylum Support Appeals Project.

2.1 Current support arrangements

2.1.1 Support for people with a pending asylum claim

The Home Office provides support under section 95 of the Immigration and Asylum Act 1999 (‘section 95’) to destitute adults and families when their initial asylum application or appeal against a refused is pending.

Temporary support under section 98 of the Immigration and Asylum Act 1999 (‘section 98’) is available whilst an application for section 95 support is being considered by the Home Office.

When the IA 2016 is implemented, there will be no change to the support provided to people with a pending asylum claim or appeal, although the government is tightening access to section 95 support.

2.1.2 Support for ARE asylum-seekers

Adults who become appeal rights exhausted (ARE) following an unsuccessful asylum claim currently have their section 95 support terminated 21 days after receiving their decision or final appeal determination.

Asylum-seeking families continue to receive section 95 support if there is a child under 18 in the household at the time they became ARE.

Support is available under section 4 of the Immigration and Asylum Act 1999 (‘section 4’) to any ARE asylum-seeker who is destitute when one of the following criteria applies:

  • They are taking all reasonable steps to leave the UK
  • They are unable to leave the UK due to physical impediment or other medical reason
  • They have no safe route of return
  • They have been granted permission for a judicial review of a decision in relation to their asylum claim
  • They require support to avoid a breach of their human rights (this will usually apply if they have made further submissions to the Home Office for a fresh asylum claim)

Families can access section 4 support (rather than section 95 support) if their child was born after the parent(s) became appeal rights exhausted. Section 4 support can be applied for at any time after a person has become appeal rights exhausted.

When section 4 support is refused or withdrawn, there is a right of appeal.

2.2 What will change

2.2.1 When section 95 support will end (grace period)

Once a person becomes ARE, their section 95 support will continue for a ‘grace period’, during which time they are expected to arrange to leave the UK or to make an application for section 95A support.

The grace period will be:

  • 21 days for adults and adult family groups
  • 90 days for families with a child under 18

In the consultation, the government states:

During this time, we plan to work with failed asylum-seeker families to help them understand their options and identify any obstacle preventing their departure from the UK. If the Home Office has evidence that a family is unable to leave the UK within the 90 day “grace period” because of a genuine obstacle, they will be placed on section 95A support.

The government is consulting on what actions a Home Office caseworker should take ‘to ensure children’s welfare when considering discontinuation of support for ARE asylum-seeking families’, including whether a referral to children’s services and/or safeguarding assessment should be undertaken.

The government has not clarified:

  • What the grace period will be for families who are already ARE and receiving section 95 support when the IA 2016 is implemented (see ‘transitional arrangements’)
  • The period in which a former unaccompanied asylum-seeking child will be able to apply for section 95A support if they become ARE whilst they are supported by their local authority as a care leaver (aged 18+)

Any grace period implemented for former unaccompanied asylum-seeking children (aged 18+) who were looked after by children’s social care may need to be different across the four nations, as changes are being made to leaving care support in England, which will not apply in Scotland, Wales, and Northern Ireland.

2.2.2 Section 95A Support for people who have a ‘genuine obstacle to return’

Section 4 will be repealed and will be replaced with section 95A of the Immigration and Asylum Act 1999 (‘section 95A’).

Section 95A support will be available to all ARE asylum-seekers, including families and young people (aged 18+) leaving local authority care.

However, an application for section 95A support can only be made during the grace period. The government is consulting on whether, and on what basis, late applications should be accepted. It suggests that reasons for late applications could be health reasons, being detained by the police, and not being notified about applying for section 95A support.

Interim support under section 98A may be provided by the Home Office to ARE asylum-seekers who are waiting for a decision on their application for section 95A support.

There will be no right of appeal to challenge a refusal of section 95A support.

Support can be provided under section 95A when a person who is ARE is destitute and faces a ‘genuine obstacle to leaving the UK’.

A genuine obstacle to return will be defined in regulations, which are being consulted on. In the consultation, the government has set out its proposed definition of a genuine obstacle, and what conditions must be met for section 95A support to continue.

It defines a genuine obstacle as existing where an individual is:

  • Unable to leave the UK by reason of a physical impediment to travel or for some other medical reason (which must be supported by such medical evidence as is reasonably required)

  • Unable to obtain a travel document to facilitate departure from the UK despite having taken all reasonable steps to do so

  • Unable to leave the UK because, in the opinion of the Secretary of State, there is currently no viable route of return available

  • Unable to leave the UK for some other reason which, in the opinion of the Secretary of State, means the person should be allowed exceptionally to remain for the time being in the UK

It also stats that the following factors will not amount to a genuine obstacle to leaving the UK:

  • The fact that the individual may be receiving ongoing medical treatment in the UK

  • The unavailability, or possible unavailability, of medical treatment in the country to which the person is to return

  • The undesirability or inadvisability of leaving the UK for medical reasons

The continued provision of section 95A support will be subject to the person taking all reasonable steps to leave the UK or place themselves in a position where they are able to leave the UK – this may include complying with attempts to obtain a travel document to facilitate their departure.

2.2.3 Section 95 Support for people who make further submissions or apply for judicial review

Eligibility for section 95 support will be extended to a person (aged 18+) who is ARE and has:

  • Made further submissions relating to their asylum claim that have been recorded but not determined within a set time period
  • Been granted permission to apply for a judicial review of the rejection of their further submissions

Section 95 support can be applied for on this basis at any time after a person becomes ARE. Interim support under section 98 will also be available to people applying for section 95 on this basis.

2.2.4 Transitional arrangements

The government states:

We intend to introduce legislation to enable this new system to be applied to failed asylum seekers already in the system.

Transitional arrangements currently set out in the IA 2016 enable section 4 support, or section 95 support for ARE families, to continue for people that are already accommodated or have a pending support application or appeal at the time schedule 11 is implemented. It appears that the government is intending to remove these protections and is consulting on measures to manage the transition for people currently receiving section 4 or ARE families receiving section 95 support. However, the transitional measures can only be removed through an amendment to primary legislation, which would need to be passed by parliament.

The government has not provided any information about the number of individuals and families currently receiving Home Office support who would may have their Home Office support withdrawn, should the transitional protections be removed.

2.2.5 Gaps in Home Office support for ARE asylum-seekers

It appears that there may be people who will not qualify for support from the Home Office when they are ARE and have a barrier to return in place. This is primarily because section 95A support will only be available during a short ‘grace period’ of 21 days (for adults) or 90 days (for families) after becoming ARE, although the Home Office may decide to accept late applications from some groups outside of the grace period.

For those who establish a barrier to return during the grace period, it is unclear what the Home Office will consider to be exceptional circumstances for the purpose of awarding section 95A support when other criteria are not met.

When Home Office support is unavailable to a person or family who becomes ARE:

  • Some adults may be able to access Home Office support for people on immigration bail (schedule 10 support)
  • Families in England may qualify for support from their local council under a new legislative framework (paragraph 10A)
  • Families in Scotland, Wales and Northern Ireland may qualify for support from their  local council or health and social care trust under child welfare legislation, subject to having a barrier to return, as established through a human rights assessment
  • Pregnant women may be able to access support from adult social care, where a duty or power under relevant social care legislation is engaged 

The reduction in availability of Home Office support could result in responsibility for supporting asylum-seeking families who become ARE transferring from the Home Office to councils (and health and social care trusts in Northern Ireland) in a significant number of cases.

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