Asylum Seekers

This chapter sets out what the local authority would need to consider when a person who is seeking asylum or has become ‘appeal rights  exhausted’ (ARE) following the refusal of their claim, requests assistance. It also sets out the rules regarding responsibility for providing support and whether this lies with the local authority or Home Office.

Formerly, Glasgow was the only asylum dispersal area in Scotland, with the result that local authority and third sector services that provided specialist support to asylum seekers were largely located in Glasgow and Edinburgh.

Mears is currently contracted by the Home Office to manage asylum support accommodation in Scotland. Until the Covid-19 pandemic, this consisted mainly of shared flats and houses subleased by Mears from private landlords in the Greater Glasgow area.

Since the pandemic, Mears has increasingly made use of private hotel accommodation in a number of other local authorities in Scotland, including Aberdeen, Falkirk, Perth and Lanarkshire.

This has caused challenges for asylum seekers and the local authorities and third sector organisations that support them – because the rapid shift in the location of asylum seeker dispersal across Scotland has not yet been met with a parallel shift in the capacity of specialist services to work across these new localities.

In addition, asylum seekers living in hotel accommodation in Scotland are supported by the Home Office on a subsistence-only basis – consisting of very limited cash support of £9.58 per week (at the time of writing). In contrast, asylum seekers living in shared flat or house accommodation are provided with financial support of £47.39 although this must also cover
all their food requirements, through the week.

Migrant Help is contracted by the Home Office to provide casework support to asylum seekers in Scotland and works alongside Mears to deliver these services.

16.1 Responsibility for Providing Support – FAMILIES

Responsibility for providing accommodation and financial support to asylum seeking families depends on the status of the parent’s asylum claim and whether they would be eligible for Home Office asylum support under section 4 or section 95 Immigration and Asylum Act 1999. Details are set out in the table below.

The local authority would need to establish the status of the parent’s asylum claims 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, the current status of the claim, and, if it has been refused, the date of the initial refusal, any appeal decisions and date the parent became appeal rights exhausted if they have received a final determination by the courts.

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 22 of the Children (Scotland) Act 1995 if there are delays in accessing Home Office support and the family has no alternative funds or housing available. In such cases a GIRFEC assessment will need to be carried out.

For more information, see:

• 7 Social services’ support – exclusion
• 8 Social services’ support – children within families

16.2 Social Services’ Assistance for Children

When an asylum seeking family do not require accommodation from the local authority, for example because they are receiving section 95 support from the Home Office, there is no restriction on providing social care services to a child, for example, to meet any needs arising from a disability.   

16.3 Responsibility for Providing Support – ADULTS

When an adult asylum seeker is referred to the local authority and presents with an appearance of need, they must be assessed in the usual way with a view to determining whether they need to be provided with any social care services under sections 12 or 13A of the Social Work (Scotland) Act 1968.

The Home Office has published updated guidance to clarify its role in helping asylum seekers with care needs access support from the local authority as well as confirming which organisation will be responsible for providing accommodation. The guidance applies to Scotland but refers to legislation which applies in England (the Care Act 2014). This has a very different eligibility criteria and framework for providing care to that which applies in Scotland. Local authorities can therefore refer to this guidance but must also ensure all decisions comply with their duties under the Social Work (Scotland) Act 1968. ¹²⁶

If the adult has not yet accessed support from the Home Office, the local authority would be required to undertake a community care assessment to establish what assistance they require, and whether residential accommodation is necessary to meet the person’s needs. Whilst assessments are being carried out the local authority may need to provide interim accommodation if the adult has no alternative housing available to them.

If residential accommodation is required, then the local authority will need to provide and fund this. If the person requires care which can be provided within the community, then the Home Office guidance states that suitable asylum support accommodation will be sourced, and any care required can be provided by the local authority.

An asylum seeker or ARE asylum seeker who has presented with an appearance of need, should only be referred to the Home Office for support when the community care assessment has been completed, the local authority has identified whether they are eligible for assistance, and if so, what kind of support will be required. If interim support, including housing, has been provided pending the outcome of the assessment, then it would be good practice for the local authority to assist the person to apply for asylum support if residential care is not required.

If the adult has been referred to the local authority when they are already living in Home Office accommodation, then a community care assessment should be carried out as usual. The local authority should disregard the availability of Home Office accommodation and identify whether residential accommodation is in fact required. If non-residential care is required, then the local authority must consider whether the Home Office accommodation suitably allows for the adult’s care needs to be met, and if not, would need to request that the Home Office sources more appropriate accommodation in line with the guidance.

The provision of support under sections 12 or 13A of the Social Work (Scotland) Act 1968 is not limited by Schedule 3 of the Nationality, Immigration and Asylum Act 2002 for adults with a pending asylum claim which has not been finally determined, or for adults who claimed asylum at port of entry, even if they have been refused and are appeal rights exhausted.

However, the Schedule 3 exclusion will apply to ARE asylum seekers where the adult:

• claimed asylum after they entered the UK (rather than at the port of entry), or
• has failed to comply with removal directions.

In such cases, care and support, including accommodation, may only be provided where this is necessary to prevent a breach of the person’s human rights, i.e., there is a legal or practical barrier preventing them from returning to their country of origin. The local authority will need to undertake a human rights assessment to establish this, as well as community care assessment.

For more information, see:

• 7 Social services’ support – exclusion
• 9 Social services’ support – adults

16.4 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 (i.e., they have no accommodation and/ 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 ARE asylum seeking families remain supported by the Home Office and do not require local authority support.

An ARE 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. ¹²⁷

Section 95 accommodation will usually be terminated when:

• A single adult or family are granted leave to remain – 28-day notice period
• A single adult is refused asylum and becomes ARE –  21-day notice period

In some cases, an asylum seeker or family may receive a notice of termination of support in error, or a refusal to grant Section 95 support after receipt of Section 98 support.  In these cases, they may be able to exercise a right of appeal against the decision and should be signposted to an asylum support advice provider for advice and information on their rights to do so.

16.5 Section 4 Home Office Support 

In certain circumstances, destitute ARE 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 – or they face a risk, such as the risk to health caused by the Covid-19 pandemic.¹²⁸

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.

Eligibility for section 4 support is subject to complex rules.  A person or family must prove that they are destitute or at risk of destitution (within the next 14 days) and also furnish evidence that they meet the requirements of the appropriate rule (set out above).  Destitute ARE asylum seekers should be referred to organisations for specialist advocacy and support in making these applications.  In some cases, the person or family’s immigration solicitor may be willing to make the asylum support application.

Delays by the Home Office in determining Section 4 support applications have lengthened significantly in the past few years.  In addition, the Home Office has increasingly used the practice of using ‘further information requests’ to prolong the period before a final decision to grant asylum support is made.  Therefore, even if a person or family is assessed to be eligible for section 4 support and signposted to an advisor for assistance, regard should be given to the possibility that there might be a delay in receiving this entitlement for up to 1-2 months, and an appropriate plan to prevent destitution during this period should be put in place.

The following organisations provide more information about asylum support:

• Home Office ¹²⁹ 
• Migrant Help (assistance with applications) ¹³⁰
• British Red Cross
• Govan Community Project¹³¹
• Scottish Refugee Council¹³²
• Refugee Survival Trust ¹³³
• Asylum Support Appeals Project (assistance when support is refused)¹³⁴