CHAPTER ONE – SECTION 95(1) SUPPORT OF THE IMMIGRATION AND ASYLUM ACT 1999
- We will address in this chapter the provision of accommodation and financial support to asylum-seekers and their dependants in England and Wales by the Home Office, under section 95(1) (hereinafter referred to as s95(1)) of the Immigration and Asylum Act 1999 (IAA 1999).
Who is eligible for s95(1) support?
- Under s95(1) of the IAA 1999, the Secretary of State may provide, or arrange for the provision of support (which may take the form of accommodation and subsistence or subsistence only) for:
- asylum-seekers or dependants of asylum-seekers;
- who appear to the secretary of state to be destitute or likely to become destitute within a ‘prescribed period’.
- We will now turn to specifically look at the terms which make up the eligibility criteria. The significance of these terms is that entitlement to support can often turn on whether or not a specific term is satisfied. It is also noteworthy that some of these terms may have alternative meanings elsewhere in the immigration and asylum legal architecture. Therefore, it is necessary that the specific definitions of these terms in the context of asylum support are understood.
Asylum-seeker
- Section 94 of the IA 1999, outlines various definitions relevant to the legal framework for asylum support. In particular, it defines ‘asylum-seeker’ as:
“a person who is not under 18 and has made a claim for asylum which has been recorded by the Secretary of State but which has not been determined”.[1]
What is a claim for asylum?
- Section 94 also defines the term ‘claim for asylum’ in the following terms:
“a claim that it would be contrary to the United Kingdom’s obligations under the Refugee Convention, or under Article 3 of the Human Rights Convention, for the claimant to be removed from, or required to leave, the United Kingdom”[2].
- The reference to an asylum seeker being a person who is not under 18 and has made a claim would suggest that the person is not a minor, and there has been a positive assertion of rights under the Refugee Convention and/or Article 3 of the ECHR.
What is a claim ‘which has been recorded’?
- The stage at which a person reports an asylum claim to the Home Office, is normally the stage at which the matter is recorded. Depending on the context, persons may claim asylum on arrival in the UK or at a later stage when they are already in the UK. The procedure for making an asylum claim begins with making a claim at a designated place. Section 14(2) of the Nationality and Borders Act 2022 defines a designated place as[3]:
(a) a place identified in a notice published by the Secretary of State as an asylum intake unit;
(b) a removal centre (within the meaning of section 147 of the Immigration and Asylum Act 1999);
(c) a port (within the meaning of section 33 of the Immigration Act 1971);
(d) a place where there is a person present who, for the purposes of the immigration rules, is authorised to accept an asylum claim on behalf of the Secretary of State;
(e) a place to which the claimant has been directed by the Secretary of State or an immigration officer to make the claim.
- However, the above general position only covers the situation relating to an initial claim for asylum. This matter is more nuanced when considering the issue of further submissions and whether they amount to a fresh claim for asylum. The question which ultimately arises is: when do further submissions for asylum amount to a ‘claim for asylum which has been recorded’?
- The starting point is to first understand what constitutes a fresh asylum claim. This is dealt with under paragraph 353 of the Immigration Rules, which states as follows[4]:
Fresh Claims
- When a human rights or protection claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:
(i) had not already been considered; and
(ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection. This paragraph does not apply to claims made overseas.
- Ultimately, when an initial asylum claim has been refused or withdrawn, the Secretary of State will consider any further submissions made by the Applicant (and if rejected) will assess whether they amount to a fresh claim. The Court of Appeal in WM (Democratic Republic of Congo) v SSHD[5] determined the test for further submissions amounting to a fresh claim is:
“The question is whether there is a realistic prospect that an immigration tribunal, equipped with the previous evidence and any new evidence could conclude that a further appeal against the refusal of a protection or human rights claim should be allowed”.
It is only if this is satisfied that the Secretary of State will consider the content as significantly different”.
- The significance of this issue in the context of s95(1) eligibility is that the Home Office will not treat further submissions in support of a fresh claim for asylum as ‘a claim recorded’ until the Secretary of State assesses the further submissions to be a fresh claim within the meaning of paragraph 353 of the Immigration Rules.
- The importance of this is that a person waiting for the Secretary of State to decide whether their further submissions amount to a fresh claim, will not be eligible for s95(1) support. The seminal case of R (Nigatu) v SSHD[6], has highlighted the importance of this issue. This case concerned the removal of asylum support from the claimant, in circumstances when he asserted that he was still entitled to such support. The Claimant had claimed asylum, that claim had been rejected by the Secretary of State, and his appeals and attempted statutory review of the refusal of leave to appeal to the Immigration Appeal Tribunal had all been dismissed. The Claimant submitted what he asserted was a fresh claim for asylum. The question before the Court was, essentially, whether that triggered the right to continue to receive asylum support under section 95(1) of the IAA 1999. The Court summarised the issue before it as follows[7]:
“The question that therefore has to be answered is whether, in the circumstances of this case, and, more broadly, in circumstances where an asylum claim has been rejected and all appeal processes have been exhausted, the making of an application to the Secretary of State which is said to be a fresh claim is sufficient to require that support be continued because, as a matter of the true construction of section 94, the individual is an asylum seeker”.
- Collins J explained the appropriate approach to take in such matters[8]:
21.It seems to me, in all the circumstances, that Miss Anderson’s submissions are correct and that that is the true construction of this provision. There is a real difference between the situation when an initial claim for asylum is made and that when attempts are made to prevent removal following rejection and the exhaustion of all the appeal processes of that claim. The Secretary of State is indeed entitled to consider whether the representations made can properly be said to amount to a fresh claim so as to make the individual an asylum seeker. He will record that, and the evidence before me is that he does record that, when that preliminary decision is made and that the individual in question is notified when that happens. A record is made of that decision at that time.
22.I am bound to say that Parliament must have meant something by requiring that the claim be recorded. One would have thought that if all that was meant was that it was received, that would have been said. Normally speaking, that will perhaps make no great difference because no system of sensible administration could work unless every application and every claim were recorded by someone when it was made. The question really turns on whether what was put before the Secretary of State can be said to have amounted to a claim for asylum. For the reasons that I have given, in my judgment, it does require the Secretary of State to decide the initial question as to whether it should be regarded as a claim for asylum before any right to support within section 95 can arise.
….
26.Those are all matters that would have to be taken into account when considering the circumstances of any individual case. But I am satisfied that the making of what is asserted to be a fresh claim does not automatically trigger the right to continuing support as an asylum seeker. That only arises when the Secretary of State decides, obviously as soon as possible, that it can be properly regarded as a fresh claim, whether or not, as I said, in the end it succeeds.
- Therefore, this position in Nigatu applies in cases relating to further submissions. The consequence of this is that an applicant for asylum support will be treated as an ‘asylum-seeker’ once the Secretary of State has recognised the further submissions as a fresh claim. This will constitute the point where their claim is considered as having been recorded.
What is a claim ‘which has not been determined’?
- For the purposes of eligibility for support under s.95(1), the recorded asylum claim must not have been determined. The relevant provision for understanding what a determined asylum claim means in this context is s.94(3) to s.94(4B)[9]:
(3) For the purposes of this Part, a claim for asylum is determined at the end of such period beginning—
(a) on the day on which the Secretary of State notifies the claimant of his decision on the claim, or
(b) if the claimant has appealed against the Secretary of State’s decision, on the day on which the appeal is disposed of,
as may be prescribed.
(4) An appeal is disposed of when it is no longer pending for the purposes of the Immigration Acts or the Special Immigration Appeals Commission Act 1997.
(4A) For the purposes of the definitions of “asylum-seeker” and “failed asylum-seeker”, the circumstances in which a claim is determined or rejected include where the claim is declared inadmissible under section 80A or 80B of the Nationality, Immigration and Asylum Act 2002.
(4B) But if a claim is—
(a) declared inadmissible under section 80B of that Act, and
(b) nevertheless considered by the Secretary of State in accordance subsection (7) of that section,
the claim ceases to be treated as determined or rejected from the time of the decision to consider the claim.
- Therefore, in assessing if a claim has been determined, the following should be assessed:
- Decision on the claim – accepted or refused by Secretary of State – s.94(3)(a)
- Disposal of appeal – no longer pending
- Declared Inadmissible
Decision on the claim – accepted or refused by Secretary of State / Disposal of appeal – no longer pending
- The starting point for this sub-section is to locate the relevant prescribed periods. The Home Office policy entitled ‘Ceasing Section 95 Support Instruction’ version 3.0 outlines the various prescribed periods as follows[10]:
Prescribed periods
Applicants are entitled to receive asylum support for a prescribed period after they have been notified of the decision on their asylum application or after the day on which their appeal is disposed of (Section 94(3)(B) of the Immigration and Asylum Act 1999). This gives applicants the opportunity to make arrangements for additional accommodation and support or to make arrangements for their departure from the UK. For support purposes, an applicant ceases to be an asylum seeker after the prescribed period ends. The prescribed periods are:
- 28 days when the Secretary of State notifies the claimant of the decision to accept the asylum claim or the appeal is disposed of by being allowed; 30 days if the decision is served by post
- 21 days in any other case
There is no legislative power to provide support beyond the 21 or 28 day prescribed period. Therefore, support must be ceased at the end of the prescribed period unless the asylum seeker’s household includes a dependent child, who was dependent on the asylum support application before the end of the prescribed period
- Therefore, in relation to an accepted asylum claim, the claim is considered as having been determined 28 days from when the Secretary of State notifies the Claimant of the decision.
- In relation to a rejected asylum claim which goes on to be allowed on appeal, the claim is considered as having been determined 28 days from the day on which the appeal was allowed.
- In relation to a rejected asylum claim which goes on to be dismissed on appeal, the claim is considered as having been determined 21 days from the day on which the appeal was dismissed. The same principle applies if the Claimant does not exercise the right to appeal.
- In relation to an appeal, section 94(4) indicates that an appeal is disposed of “when it is no longer pending for the purposes of the Immigration Acts or the Special Immigration Appeals Commission Act 1997.”
For our purposes, it is sufficient to acknowledge that under section 82(1) of the NIAA 2002, a person may appeal to the First-tier Tribunal (Immigration and Asylum Chamber) where the…
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[1] s94(1) IAA 1999
[2] s94(1) IAA 1999
[3] s14(2) NBA 2002
[4] Paragraph 353 of the Immigration Rules
[5] [2006] EWCA Civ 1495
[6] [2004] EWHC 1806 (Admin)
[7] [2004] EWHC 1806 (Admin) at para 1-2
[8] [2004] EWHC 1806 (Admin) at para 21-22, 26
[9] S.94(3) and s94(4B) IA 1999
[10] ‘Ceasing Section 95 Support’ Instruction, version 3.0