A recurring problem that I come across is people (usually single men)  who have been granted asylum in the UK facing street homelessness because they are not able to obtain accommodation from a local authority under Part 7 of the Housing Act 1996 before they are evicted from the accommodation provided for them by the Home Office under Section 95 of the Immigration and Asylum Act 1999.

I have called this post Caught Between Two Gatekeepers becauase the successful asylum seeker is often caught between the Home Office accommodation provider who wish to close the gate after they removed the asylum seeker from the accommodation which they provided pending the outcome of the asylum application and the local authority who wish to keep thge gate closed when it comes to providing them with new accommodationl

The key legal background is that pending the outcome of an asylum application an asylum seeker is generally only entitled to housing from the Home Office under Section 95 of the Asylum and Immigration Act 1999. Once they have been granted ayslum they are nolonger entitled to this and are expected to apply to a local authority under Part 7 of the Housing Act 1996 if they are homeless. I would have expected the government to require the Home Office and local authorities to work togeter to ensure that successful ayslum seekers are housed and do not face street homelessness. This might be achieved by placing a duty on the Home Office to make a referral to a local authority and to continue to provide accommodation until the local autohrity had done so. This seems to be too much for politicians to implement.  They seem to be subject to a gravitational pull towards exhibiting public unkindness and even cruetly towards refugees which means that here it is seen as appopriate to leave them to fend for themselves despite the obvious difficulties they face in doing so.

Comparison With Young People Leaving Care

The successful asylum seeker is in a similar position to that of young people who had been in the care of local authorities when they turned 18. Their 18th birthday present from the council was often a notice stating that they would be evicted from their current accommodation as they were now 18 and not the responsibility of Social Services/Children’s Services. They were expected to make their own arrangements to find accommodation. This was likely to be available to them under Part 7 of the Housing Act 1996, but they would have to run the gauntlet of unlawful gatekeeping and negative decision-making by the Housing Department staff, assuming they were able to locate the Housing Department and make an application in the first place.

The problems were:

1. A culture of refusal on the part of the Housing Department
2. The young person was unlikely to have the knowledge and confidence to navigate the system on their own
3. The staff who had been responsible for supporting them until they turned 18 were often poorly trained so did not know about housing law and were unable to provide further support in for the young person in challenging a failure by the Housing Department to accommodate. Social workers were likely to have been under pressure from managers to close files and not to provide ongoing support to young people who had reached 18 as they  were no longer considered to be the responsibility of the Children’s Services Department.
4. The difficulty in obtaining effective legal assistance.
5. Limited time available

Fortunately, the law has been changed to prevent this from happening to young people. Local authorities have duties to assist beyond the age of 18.  There is still a serious problem for successful asylum seekers though. That is to say

The Problems Facing Successful Asylum Seekers

1. They face the same culture of refusal on the part of the Housing Department.
2. They also face the additional hostile environment encouraged by central government for all migrants.
3. Many refugees only speak limited English and may be suffering from post-traumatic stress disorder or other mental health conditions arising from their experiences. A person who speaks fluent English and is in good health is likely to experience difficulty in accessing homeless support from a housing department, particularly due to cuts that have seen homeless persons units as offices which people can visit close and applicants having to apply online or via unreliable telephone services. The level of service provision often resembles an indefitinite Covid 19 lockdown.
4. The Home Office and/or the accommodation providers provide next to no support in obtaining local authority accommodation. There is advice available via the AIRE System. I don’t know very much about how effective this support is but assume that it is limited, which is why I am often asked to help successful asylum seekers who have been denied local authority assistance.
5. Lawyers who may have been helping with the asylum application often only work in the area of immigration law and not housing. They are therefore unable to assist in challenging an unlawful failure by the local authority to provide accommodation.
6. They are unlikely to be able to afford to pay for lawyers privately. They must therefore try and find a lawyer carryihg out legal aid work which is not easy given the number of providers who have abandoned this kind of work in recent years.
7. Limited time available—The Home Office moving on period is supporsed to be 56 days but can setill be limited to  28 days.

Local Connection

A common problem faced by successful asylum seekers is that they may want to move to London rather than remain in the area where they were provided with accommodation by the Home Office. This will lead to problems of the London authority refusing to assist them because they are not considered to have a local connection with that area. Unfortunately, it will often be the case that people leaving Home Office accommodation will only have a local connection with the area where they were housed by the Home Office and won’t therefore be entitled to be housed by another authority for an area they would prefer to live in.

Local Connection is covered by Section 199 of the Housing Act 1996, which provides that a person has a local connection with the district of a housing authority if they have a connection with it because:

(a) they are, or were in the past, normally resident there, and that residence was of their own choice; or,
(b) they are employed there; or,
(c) they have family associations living there; or,
(d) of any special circumstances.

It is also covered by Chapter 10 of the Homelessness Code of Guidance

Asylum seekers will often only be entitled to be treated as having a local connection with the last area where they were housed by the Home Office unless they were in an asylum centre or if they have a local connection with the area they are applying to for one of the above reasons, such as having lived there previously for a qualifying period or having close family members living there. If the applicant is at risk of violence in the area where they were housed by the Home Office, then they may be able to argue that they should not be treated as having a local connection there.

Local authorities are not allowed to refuse to process homelessness applications because they believe that the application has a local connection with another borough. They are supposed to process the application and provide temporary accommodation pursuant to Section 188 of the Act where appropriate. That is to say, where they have reason to believe that the applicant is eligible to apply, homeless, and in priority need. However, this is what local authorities often do. The applicant will often be told to go away and apply to the local authority where they have a local connection and that nothing more can be done for them. This is completely unlawful, but even if applicants are aware of this, they do not have the power to challenge the decision themselves and/or require the council to process their application or provide them with temporary accommodation.

The solution to the problem of an asylum seeker being unlawfully turned away by a local authority is to obtain an Order in Judicial Review proceedings. This is relatively straightforward for experienced lawyers but almost impossible for the applicant themselves and/or anyone without legal training. The steps to be taken are

1. Send a letter in accordance with the Judicial Review Pre-Action Protocol
2. Obtain a Legal Aid Certificate.
3. Find a barrister to assist with the case
4. Issue Judicial Review proceedings.

The Instant Non Priority Need Section 184 Notice 

Councils that have been caught gatekeeping in this way may agree to process an application and provide temporary accommodation whilst making inquiries and, if appropriate, making a referral to the authority that they think the applicant has a local connection with. However, there is a further danger that the authority may attempt to avoid providing assistance by issuing a decision that no duty is owed to the applicant because they are not in priority need for housing. It is relatively easy for councils to do this. An applicant is asked for evidence of any medical conditions. It is very likely that they won’t be able to provide persuasive evidence. This enables the local authority to issue a Section 184 Notice stating that, on the evidence the council has seen, they are satisfied that the applicant is not in priority need. This is, of course, unlawful because the local authority should be asking questions and, if necessary, making inquiries to obtain medical evidence themselves. Section 184 of the Act places a mandatory duty on them to do so, but this is very often observed in the breach.

If a negative Section 184 Notice is issued, the council is no longer under a mandatory duty to provide temporary accommodation under Section 188(1) of the Act. To challenge the decision, the applicant has to request a review of the negative decision pursuant to Section 202 of the Act. They can then request temporary accommodation and take Judicial Review proceedings if it is not provided by way of an exercise of the discretionary power to do so under Section 188(3) of the Act. . This means that a negative Section 184 Notice at this stage need not be a major obstacle to obtaining temporary accommodation.

The steps which need to be taken are

1. Request a Section 202 Review of the negative decision
2. Request
3. Send a letter in accordance with the Judicial Review Pre-Action Protocol
4. Obtain a Legal Aid Certificate
5. Issue Judicial Review proceedings.

Practical Steps For Asylum Seekers To Take When Waiting For A Decision On Their Asylum Application.

Asylum seekers and those assisting them need to be aware of the problem of their Home Office accommodation being terminated on as little as two weeks notice and of the difficulties the may face in obtaining further accommodation from a local authority. They need to be take the following steps as far as possible in advance:

1. Identify housing solicitors who may be able to take action to challenge a local authority that fails to process an application under Part 7 of the Housing Act 1996 or to provide temporary accommodation.
2. Be ready to apply for Legal Aid. The applicant will need to have proof of their income available for the housing solicitor or be able to persuade that solicitor to take the risk of carrying out work without proof of income.
3. Obtain medical records and reports to show any medical conditions which might be used to challenge a decision that the applicant is not vulnerable and therefore in priority need
4. Obtain any evidence to show that they have a local connection with any other area than the one in which their last Home Office was located. This might include letters of other proof from family members and/or proof that they have lived in that area before.
5. Be ready to send the above letters to the council threatening Judicial Review if necessary before instructing a solicitor.

This post is very long. Rather than carry on and made it even longer I will write a second post on the steps to be taken to address the problems identified in this post.

For further information on this subject and detail on the legal issues, see the Garden Court Chambers YouTube video – Preventing Homelessness When Asylum Support Ends.