United Kingdom Visas and Immigration support and local authority supportZambrano carers:unaccompanied minorsZambrano carers:housing/accommodationZambrano carers:Children Act 1989Zambrano carers:immigration control, persons subject toZambrano carers:housing/accommodation
Machinery and introduction
21.47Often still referred to as ‘NASS support’ (‘NASS’ being the acronym of the long-since-disbanded National Asylum Support Service) asylum support is now provided by the Home Office directorate UKVI.
21.48UKVI provides asylum support for asylum-seekers and their dependants under Part 6 of the Immigration and Asylum Act 1999 and for ‘accommodation’ for failed asylum-seekers and some other groups, and their dependants, under section 4.
21.49The main issues that arise in relation to asylum support and section 4 accommodation relate to:
•eligibility;
•the level of support, especially where children are involved;
•the boundary between UKVI and local authority responsibility.
21.50‘Asylum support’ comprises accommodation plus provision for essential living needs and limited additional expenses (section 96 of the Immigration and Asylum Act 1999). It is provided to asylum-seekers/their dependents who are ‘destitute’ in the sense that they are unable to secure adequate accommodation or other essential living needs (section 95). It is provided until final determination of the asylum claim/so long as the asylum-seeker’s household contains a dependent child under 18 (section 94).
21.51The primary legislation is fleshed out by the Asylum Support Regulations 2000, which regulate levels of provision in respect of essential living needs and which provide important machinery in regulations 9 and 23, the effect of which is that, in assessing whether an asylum-seeker/dependent is ‘destitute’, UKVI must take into account any support available to the applicant (including from a local authority) but local authorities must disregard the availability of asylum support: thus, making asylum support residual, provided only when local authority support is unavailable.
21.53Under section 4 of the Immigration and Asylum Act 1999, the Secretary of State has power to provide or arrange for the provision of facilities for the accommodation of:
•failed asylum-seekers/dependants; and
•persons/dependants:
•temporarily admitted to the UK;
•released from immigration detention pending investigation of their claims; or
•released on bail from any form of immigration detention.
21.54Such provision is limited by the Immigration and Asylum (Provision of Accommodation to Failed Asylum-seekers) Regulations 2005. Not only must the applicant appear to be ‘destitute’ but the conditions in regulation 3(2) must apply:
3(2) Those conditions are that–
(a)he is taking all reasonable steps to leave the United Kingdom or place himself in a position in which he is able to leave the United Kingdom, which may include complying with attempts to obtain a travel document to facilitate his departure;
(b)he is unable to leave the United Kingdom by reason of a physical impediment to travel or for some other medical reason;
(c)he is unable to leave the United Kingdom because in the opinion of the Secretary of State there is currently no viable route of return available;
(d)he has made an application for judicial review of a decision in relation to his asylum claim– (i) in England and Wales, and has been granted permission to proceed pursuant to Part 54 of the Civil Procedure Rules 1998, (ii) in Scotland, pursuant to Chapter 58 of the Rules of the Court of Session 1994 or (iii) in Northern Ireland, and has been granted leave pursuant to Order 53 of the Rules of Supreme Court (Northern Ireland) 1980; or
(e)the provision of accommodation is necessary for the purpose of avoiding a breach of a person’s Convention rights, within the meaning of the Human Rights Act 1998.
2For example, because the applicant has an outstanding application for LTR on refugee or ECHR grounds which is not manifestly hopeless or abusive. 21.55In addition to regulation 3(2)(e) (which of course is but one alternative), the whole power of the UKVI to offer section 4 accommodation is subject to the statutory bar in Schedule 3 to the Nationality, Immigration and Asylum Act 2002. Accordingly it cannot be provided to a failed asylum-seeker, or any other category of section 4 applicant, who falls foul of Schedule 3 (for example, as a result of being in the UK in breach of the immigration laws within the meaning of section 50A of the British Nationality Act 1981) except insofar as it is necessary to make provision to avoid a breach of EU or ECHR rights. Regulation 3 appears to set out the circumstances where the Secretary of State accepts that it is necessary to make provision to avoid a breach of ECHR rights.
21.56The approach of the courts to paragraph 3 of Schedule 3, has been to treat it as being necessary to provide basic support in a case where, otherwise:
•the applicant would be pushed away from the UK as a result of not having their basic needs met (including accommodation and essential needs);
•providing that would be incompatible with their rights under the ECHR;
•which will be the case, where the applicant has an outstanding application for LTR on refugee or ECHR grounds that is not ‘
manifestly hopeless or abusive’.
3R (Clue) v Birmingham CC [2010] EWCA Civ 460, (2010) 13 CCLR 276. 21.57Finally, a refusal to provide asylum support or section 4 accommodation, or the provision of inadequate support, will be unlawful if it is incompatible with EU law, in the shape of Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum-seekers
.4R (Refugee Action) v Secretary of State for the Home Department [2014] EWHC 1033 (Admin), [2014] PTSR D18.21.58As noted above, unaccompanied asylum-seeking children are accommodated under section 20 of the Children Act 1989. Children living with their families (seeking asylum or LTR under the ECHR) will have their general accommodation and welfare needs met by the Secretary of State for the Home Department, by virtue of section 122 of the Immigration and Asylum Act 1999 – but the local authority will meet any special needs that they may have, under section 17 of the Children Act 1989
.5R (Ouji) v Secretary of State for the Home Department [2002] EWHC 1839 (Admin).