Eligibility for asylum support

The UK Border Agency will only provide accommodation and financial support to asylum seekers meeting certain criteria.

This content applies to Scotland

Qualifying for support

In order to be entitled to accommodation and support from the UK Border Agency, an applicant must firstly be an asylum seeker or the dependent of an asylum seeker. [1] Secondly, s/he must be excluded from social and welfare such as benefits and housing assistance [2] and, finally, s/he must be destitute [3] or likely to become destitute within 14 days of making her/his application. [4] In some cases s/he must also have made her/his application for asylum as soon as reasonably practicable after her/his arrival in the UK. [5]

Definition of asylum seeker/dependent

For support purposes, an asylum seeker is a person who is at least 18 years old and who has made a registered claim for asylum that has been recorded by the Home Secretary but has not yet been determined. [6] Her/his asylum claim will not be considered determined until any appeals have been decided. [7]

An individual will be considered to be the dependent of an asylum seeker if s/he is: [8]

  • the husband or wife of the asylum applicant

  • below the age of 18 at the time the application for support was made and the child of the asylum applicant or of her/his spouse

  • a member of the applicant's or her/his spouse's close family who is, or was at the time of application for support, under 18

  • a child under the age of 18 who has been living as part of the asylum seeker's household, either since birth or for at least six of the 12 months before the application for support is made

  • being cared for by the asylum applicant or someone in her/his household because of a disability and is either a member of the applicant's family or that of her/his spouse and has been living as part of the asylum seeker's household since birth or for six of the 12 months before the claim is made

  • living as part of the applicant's household and was receiving support under the Children (Scotland) Act 1995 immediately prior to 6 December 1999

  • living with the asylum seeker as a member of an unmarried couple for at least two of the three years before the claim is made or the date s/he joined the asylum seeker in the UK

  • a person who is being treated by the Home Office as the dependant of an asylum seeker for the purposes of the asylum claim. This will generally only includes the spouse and any children of the asylum seeker although the Home Office may choose to classify other individuals as dependents for the purpose of an asylum claim.

Entitlement to benefits/employment

Asylum seekers will not be allowed to claim asylum support if they are eligible to receive support from another source.

Asylum seekers who arrived in the UK before the 3 April 2000 who have not yet had an initial decision on their claim will generally be eligible to receive social security benefits and local authority support. [9] They will therefore be unable to claim support from the UK Border Agency. [10] However, asylum seekers who applied before 3 April 2000 and who are currently appealing against a negative decision on their asylum claim will generally be eligible for support.

It should also be noted that asylum seekers may apply to the Home Office for permission to work after 12 months in the UK if they have still had no initial decision made on their asylum claim. [11] If this occurs, the UK Border Agency should be informed immediately as it may result in ineligibility for support.

Asylum seekers from European Economic Area (EEA) countries will also be ineligible for asylum support as they are eligible to work and in some circumstances to claim some social security benefits. [12]

Definition of destitution

An applicant will be considered destitute if s/he does not have adequate accommodation or any means of obtaining it. [13] In deciding whether accommodation is adequate the Home Office should consider whether it would be reasonable to expect the applicant to continue occupying it. In deciding the Home Office should take the following factors into account:

  • Is the accommodation affordable? [14]

  • Does the accommodation allow the applicant's dependents to stay with her/him? [15]

  • Will remaining in the accommodation put her/him at risk of domestic violence? [16]

  • Can the person secure entry to the accommodation? [17]

  • If the accommodation is a moveable structure, does s/he have somewhere to place it and reside in it? [18]

  • Has the accommodation been supplied on an emergency basis? [19]

  • What are the circumstances prevailing in the district where the accommodation is located? [20]

The Home Office may not take the following matters into account: [21]

  • whether the person has a legal right to occupy the accommodation

  • whether the accommodation is shared

  • whether the accommodation is temporary (unless it is emergency accommodation pending an asylum support decision)

  • the location of the accommodation.

An asylum seeker may also be classified as destitute if s/he has adequate accommodation or the means of obtaining it, but cannot meet her/his other essential living needs. [22] In deciding whether an applicant is has sufficient resources to meet her/his essential living needs the Home Office may only consider the following: [23]

  • any income that the main applicant or her/his dependents have or are likely to have [24]

  • any support that s/he or her/his dependents might reasonably be expected to receive [25]

  • the following assets (if they are reasonably accessible): cash, savings and investments, land, vehicles and goods held for the purpose of a trade or other business. [26]

Late application for asylum

Since 8 January 2003 [27] the UK Border Agency has had the power to deny support and accommodation to asylum seekers and their dependents if the Secretary of State is not satisfied that their application for asylum was made as soon 'as reasonably practicable' after their arrival in the UK. [28]

In deciding whether the claim was made as soon as reasonably practicable the Secretary of State should consider the circumstances of each case. According to a government policy announcement made in December 2003, the following factors will be taken to suggest the application was made as soon as possible: [29]

  • the asylum seeker claimed asylum within three days of their arrival in the UK

  • the account given by the asylum seeker of their arrival was credible.

Although this provision is still in force, a decision by the House of Lords on the 3 November 2005 has challenged its legality. [30] The court held that the government's denial of support to late claiming asylum seekers, in conjunction with legislation preventing them from taking up paid employment [31] or receiving benefit, could constitute a breach of their human rights. [32]

It was held that as soon as an asylum seeker who had been refused support on the basis of not claiming as soon as reasonably practicable made it clear that there was an imminent prospect of a breach of her/his rights under the European Convention of Human Rights (ECHR), the Secretary of State had a duty under the Human Rights Act to act to avoid such a breach. The decision was made on the basis of Article 3 ECHR, which prohibits inhuman or degrading treatment.

Although the denial of support to vulnerable asylum seekers and children has always been perceived as a breach of human rights, [33] this judgement potentially extends protection to all asylum seekers who would be made homeless as a result of asylum support being denied. It does not, however, extend to those asylum seekers who made an application for subsistence only support (ie those who have somewhere to live but not enough money to meet their essential living needs). It is possible that these individuals may still be denied asylum support on the basis that they did not submit their application for asylum as soon as reasonably practicable after arriving in the UK.

Asylum seekers who are currently homeless as a result of late application should contact the UK Border Agency with regards to making a second application for support in light of the House of Lords decision. Alternatively, they should consider pursuing an action for judicial review.

Last updated: 27 July 2020

Footnotes

  • [1]

    reg.3(1) Asylum Support Regulations 2000 SI 2000/704

  • [2]

    reg.4(1)-(6), Asylum Support Regulations 2000 SI 2000/704

  • [3]

    s.95(1) Immigration and Asylum Act 1999

  • [4]

    reg.7(a) Asylum Support Regulations 2000 SI 2000/704

  • [5]

    s.55 Nationality, Immigration and Asylum Act 2002

  • [6]

    s.94(1) Immigration and Asylum Act 1999

  • [7]

    s.94(1) Immigration and Asylum Act 1999

  • [8]

    reg.2(4) Asylum Support Regulations 2000 SI 2000/704

  • [9]

    s.115 Immigration and Asylum Act 1999 and reg. 12 Social Security (Immigration and Asylum) (Consequential Amendments) Regulations 2000 SI 2000/636

  • [10]

    reg.4(4)(b) Asylum Support Regulations 2000 SI 2000/704 and s.95(2) Immigration and Asylum Act 1999

  • [11]

    Council Directive 2003/09/EC of 13 January 2003 laying down minimum standards for the reception of asylum seekers and para.360 of the Immigration Rules

  • [12]

    sch.3 para.5 Nationality, Immigration and Asylum Act 2002

  • [13]

    s.95(3)(a) Immigration and Asylum Act 1999

  • [14]

    s.95(5)(a) Immigration and Asylum Act 1999 and reg. 8(3)(b) Asylum Support Regulations 2000, SI 2000/704

  • [15]

    s.95(5)(a) Immigration and Asylum Act 1999 and reg. 8(3)(f) Asylum Support Regulations 2000, SI 2000/704

  • [16]

    s.95(5)(a) Immigration and Asylum Act 1999 and reg. 8(3)(g) Asylum Support Regulations 2000 SI 2000/704

  • [17]

    s.95(5)(a) Immigration and Asylum Act 1999 and reg. 8(3)(d) Asylum Support Regulations 2000, SI 2000/704

  • [18]

    s.95(5)(a) Immigration and Asylum Act 1999 and reg. 8(3)(e) Asylum Support Regulations 2000, SI 2000/704

  • [19]

    s.95(5)(a) Immigration and Asylum Act 1999 and reg. 8(3)(c) Asylum Support Regulations 2000, SI 2000/704

  • [20]

    s.95(5)(a) Immigration and Asylum Act 1999 and reg. 8(4) Asylum Support Regulations 2000, SI 2000/704

  • [21]

    s.95(5)(b) and (6) Immigration and Asylum Act 1999

  • [22]

    s.95(3) Immigration and Asylum Act 1999

  • [23]

    s.95(7) Immigration and Asylum Act 1999

  • [24]

    reg.6(4)(a) Asylum Support Regulations 2000 SI 2000/704

  • [25]

    reg.6(4)(b) Asylum Support Regulations 2000 SI 2000/704

  • [26]

    reg.6(4)(c) and (5) Asylum Support Regulations 2000 SI 2000/704

  • [27]

    Nationality, Immigration and Asylum Act 2002 (Commencement No.1) Order 2002 SI 2002/2811

  • [28]

    s.55 Nationality, Immigration and Asylum Act 2002

  • [29]

    Policy Announcement of the Home Secretary 17/12/03

  • [30]

    R v Sec. of State for the Home Department ex parte Adam, Limbuela & Tesema [2005] UKHL 66

  • [31]

    s.8 Asylum and Immigration Act 1996 and The Immigration (Restriction on Employment) Order 1996 SI 1996/3225

  • [32]

    s.6 Human Rights Act 1998 & Art 3 European Convention on Human Rights

  • [33]

    Prohibited under s.55(5)(b) and (c) Nationality, Immigration and Asylum Act 2002