Eligibility for support

Basic eligibility criteria

In order to qualify for asylum support, the applicant must satisfy UKBA of the following:

• S/he is an asylum seeker or the dependant of an asylum seeker
• S/he is not excluded from support (for example, under Section 55) and
• S/he is destitute

An ‘asylum seeker’ for the purposes of asylum support is defined as someone who:

• Is 18 years or older
• has made an asylum or Article 3 human rights claim and
  Is still awaiting a decision on the claim or appeal or
• Has a dependent child under 18

In order to meet the ‘destitution test’, the applicant must show that they are unable to house and support their household for the next 14 days (or 56 days if they were previously receiving support which has been withdrawn). UKBA will make a decision to award asylum support based on what is included in the NASS1 form. UKBA requires applicants to declare all cash, savings, income and assets, whether held in the UK or abroad, as well as an explanation of why these cannot be accessed.

Policy Bulletin 4 is a guide to how UKBA calculates whether funds that are available to the applicant will meet their essential living needs.

Section 55 procedures

Under Section 55 of the Nationality Immigration and Asylum Act 2002, people who apply for
asylum in–country will be excluded from UKBA asylum support unless they can prove the following:

• They prove they have applied for asylum
• They can prove that they applied for asylum ‘as soon as reasonably practicable’ after arriving in the UK (normally within three days), or if they entered legally and then applied for asylum following a change of circumstances in their country and they can prove that they have applied as soon as the change has taken place (Section 55)
• They meet the criteria for destitution

In addition, people who are unable to provide a clear and coherent account of how they came to the UK, or an accurate account of their circumstances until then, can also have UKBA asylum support withheld, as can people who do not cooperate with the authorities’ enquiries. Asylum applicants will not have their eligibility for UKBA asylum support restricted if the following applies:

• They have dependent children under the age of 18 (provided the children were born when the asylum claim was outstanding)
• They have special needs. See Special needs in this section
• They are applying for asylum following a change in circumstances in their country of origin (provided they make their asylum claim at the earliest possible opportunity following that change of circumstances)
• They can show that they would otherwise suffer treatment contrary to the European Convention on Human Rights (ECHR), in particular Article 3, which provides protection from ‘inhumane or degrading treatment’ (destitution itself does not suffice)

Following a landmark judgement in the case of Limbuela, UKBA must now be convinced that an asylum seeker has food, shelter and access to basic amenities before refusing support under Section 55 in order to prevent a breach of Article 3 of the ECHR. In practice, this means UKBA is only applying Section 55 to asylum seekers who have somewhere to stay.

UKBA case owners use information provided at the screening interview and on the NASS1 form to determine whether or not an applicant applied for asylum as soon ‘as reasonably practicable’. If they are unable to make a decision or are not convinced that the applicant applied early enough, the applicant will be invited to a second interview. This is known as a section 55 Interview.

If after a section 55 interview UKBA are still not convinced that the applicant applied ‘as soon as reasonably practicable’, they may decide to deny asylum support. The case owner must, however, be positively satisfied that the applicant has some other source of food, shelter and access to basic amenities before denying support in order to prevent a breach of Article 3 of the ECHR.

Policy Bulletin 75 , which can be downloaded from the Home Office website, provides detailed guidance to case owners on how to apply Section 55.

Challenging Section 55 decisions

There is no right to appeal to the Asylum Support Tribunal against a negative Section 55 decision. The only way to challenge a decision is to write to UKBA and request a ‘reconsideration’.

If possible, the letter should include evidence to suggest either that there has been a mistake or a breach of Article 3 of the ECHR. The evidence could include, for example, a doctor’s letter or more information about the effect on the asylum seeker of having no support.

Reconsideration requests can be submitted by legal representatives, such as those at a one stop service. If UKBA refuses to change its decision, the asylum seeker may be able to apply for a court injunction as part of a judicial review. They should be referred to a solicitor for help with this.

Refusal/withdrawal of support

UKBA may refuse or withdraw support if the applicant is suspected of breaching one of the conditions on which their support has been granted, for example, working whilst claiming support or abandoning UKBA accommodation. Support may also be refused or withdrawn if the applicant is not considered to be destitute. This could be because of a change in their personal circumstances or because they are entitled to community care support.

Other common reasons for UKBA withdrawing support are if the applicant fails to report to the Immigration Service if they have a reporting condition, or if they wait too long before collecting their support from the Post Office.

Where UKBA has withdrawn support and the reason is unclear, applicants or their representatives should call the UKBA Support and Discontinuation of Support Enquiry line on 0845 600 0914.

Appealing to the Asylum Support Tribunal

Asylum applicants whose application for support has been refused, discontinued or suspended by UKBA (except on Section 55 grounds or if the asylum application has been determined) will have the right to appeal to the Asylum Support Tribunal (AST), but they will receive no support up until and during the appeal. Appeals must be received by the AST within three working days of the notification of refusal unless there are exceptional circumstances.

Appeals should be sent by first class post or by fax the day after notification of refusal is received to ensure it reaches UKBA by day three. Notice of Appeal application forms are available on the AST website.

Refugee organisations needing advice about appeals can contact the Asylum Support Appeals Project. See Resources section.