14 March 2023
14 March 2023
This factsheet explains who is considered a ‘dependant’ for asylum support purposes and the conditions they must satisfy to be eligible. Updated 14 March 2023.
If you still have questions or need further information and advice after reading this factsheet, please contact our advice line on 020 3716 0283. It is open Mondays, Wednesdays and Fridays from 2pm to 4pm. Please note, this is a ‘second-tier’ advice line. This means that we can give advice to other advice workers but not to individual clients.
Asylum-seekers who qualify for s95 and s4 support are entitled to apply for, and (if the applicable conditions are met), receive support for their ‘dependants’. Similarly, where a dependant joins a person already receiving asylum support in the UK, they can apply to receive asylum support as a dependant of the supported person.
HO guidance to caseworkers considering whether a person is a dependant for asylum support purposes, and requests for a dependant to be added to the main applicant’s support application, is entitled ‘Dependants on an asylum support application’ (version 8).
The definition of a dependant is set out in section 94(1) of the Immigration and Asylum Act 1999, and regulation 2(4) of the Asylum Support Regulations 2000 (which have been updated to reflect the Civil Partnership Act 2004).
The headings below list the various categories of dependants, with a brief explanation for each. Note that a person can be a dependant of more than one person for asylum support purposes, if they satisfy the definition of a dependant under more than one category. For example, it is possible to be a dependant of (a) a parent, (b) another close family member such as an uncle or aunt, and (c) an unrelated member of the household at the same time.
A person will automatically be treated as a dependant of a person’s asylum support claim if they are a dependant of that person’s asylum claim. If the dependant has arrived in the UK separately from the main applicant, evidence will need to be provided to show that the HO has been asked to include the would-be asylum support dependant as a dependant on the main applicant’s asylum claim. Evidence could include a copy of their screening interview notes or letters, or correspondence from the HO confirming they are being treated as a dependant of the main applicant’s asylum claim.
Note that the converse is not true – the dependant of a person who is receiving asylum support is not necessarily entitled to be treated by the HO as a dependant on the supported person’s asylum claim.
Whether a person is a dependant of an asylum claim is an immigration law question, and specialist immigration advice should be taken before any request is made to add a dependant to an asylum application. The rules on who can be considered a dependant on an asylum application are set out in Immigration Rule 349, and guidance to HO caseworkers can be found in the Asylum Policy Instruction: Dependants and former dependants.
A person will automatically be treated as a dependant of an asylum seeker for asylum support purposes if s/he is married to the asylum seeker. Generally, only certain types of marriages that take place in the UK are recognised as validHowever, in some cases it may be necessary to argue that a wider definition of ‘married’ should apply for asylum support purposes. This is because of restrictions in the unmarried couples rules (considered below), in particular the requirement that the couple must have lived together as an unmarried couple for 2 of the previous 3 years, ceremonies held in a registry office and in certain religious buildings registered for marriages are recognised, but those that take place in most UK mosques are not. Marriage Act 1949 If the marriage took place in the applicant’s country of origin/previous residence the marriage should also be recognised as valid in the UK, providing it was recognised as valid in that country at the time it took place.
An asylum-seeker can apply for asylum support for their unmarried partner as their dependant, if they can provide evidence that they have been living together as an unmarried couple for 2 out of the last 3 years before the support application was made. Where the asylum seeker is already receiving asylum support, for at least 2 of the 3 years before the dependant joined the asylum seeker in the UK). Note that even close and committed longstanding couples may not be able to meet this condition if they have been separated for more than a year out of the last 3 years whether because of circumstances out of their control, perhaps arising out of the asylum seeker’s asylum claim, or for another reason that is not indicative of a weak relationship.
The High Court considered and approved the lawfulness of the HO’s unmarried couples’ policy in R (Chen) v SSHD [2012] EWHC 2531 (Admin). However, the court made it clear that the HO (and the Asylum Support Tribunal) must ensure that decisions on asylum support applications do not breach the right to respect for family life in Article 8 of the European Convention on Human Rights. This is a fact sensitive issue. Where it is particularly important for an unmarried family to live together, but the unmarried couple cannot show that they have lived together for at least 2 of the last 3 years condition, you should take specialist advice. In such cases, please contact ASAP’s advice line.
One possible solution open to couples who are unable to receive support as a family unit is to consider getting married in a registry office. There is a fee for getting married in a register office and this varies depending on where they live and the day of the week they choose to get married.
A child under 18 is entitled to be treated as the dependant of an asylum-seekerOr of a refused asylum seeker in section 4 cases – see footnote1 for asylum support purposes if the child:
Provided a child is under 18, either:
the child will remain a dependant on the asylum seeker’s asylum support claim after they turn 18. HO guidance states that if a child has been accepted as a dependant for support purposes, on turning 18, they are not expected to apply for support in their own right while the main applicant’s asylum application is pending, or if it is refused, while there are other dependent children under 18 in the household.Immigration and Asylum Act 1999 s94(5)
However, once the main applicant becomes ineligible for support (eg where the asylum claim is refused, and the refused asylum seeker’s youngest child turns 18) the asylum seeker’s adult children will also cease to be eligible.
If the now-refused asylum seeker proceeds to make further submissions in support of their asylum claim, and thereby becomes eligible for s4 support, the adult child will not generally continue to be considered a dependant for support purposes, unless they were under 18 at the time the further submissions were made. If they were, HO guidanceAsylum Policy Instruction: Dependants and former dependants (version 2.0), section 3.8 states that they should ‘normally continue to be treated as a dependant for the purposes of the further submissions application’. If the child was over 18 when the further submissions were made then the adult child will generally need to be eligible for support in their own right, and so should seek immigration advice about a potential asylum claim.
The HO’s Family Asylum Claims Policy
The HO’s Family Asylum Claim policy states that there are 3 ways that a dependant child’s claim can be decided:
The Family Asylum Claim Policy applies to asylum claims made after the 2 August 2021. It represents a significant change, with implications for dependent children’s eligibility for asylum support after they turn 18, in scenarios 1 and 3 above.
In scenarios 1 and 3 above, children’s asylum claims may be finally determined while they are still children. In such cases, a dependent child, upon turning 18, will be a refused asylum seeker for immigration law purposes, and will need to make in further submissions to seek to re-open their asylum claim.
However, their position is different for asylum support purposes. That is because in order to be eligible for s95 (and s4) support in their own right (as opposed to as a dependant), an asylum-seeker has to be over 18. So if your asylum claim was refused and any appeal against the refusal was dismissed when you were under 18 (because either scenario 1 or 3 applied), the position in law is that you were never ‘an asylum seeker’ for s95 purposes, nor are you now a refused ‘asylum seeker’ for s4 purposes.
It follows that if a family becomes ARE before the children turn 18, the children will not be eligible for asylum support when the youngest child turns 18 (until then, the HO’s policy is to maintain support for the family including older children pursuant to s94(5) of the Immigration and Asylum Act 1999 See ASAP’s Family support briefing, at p2). Upon the youngest child of the family reaching 18, children of refused asylum seekers may therefore need to apply for Schedule 10 support, see Factsheet 10.
A person aged over 18 will qualify for support as a dependant of an asylum seeker if they are in need of care and attention from the asylum seeker or a member of the asylum seeker’s household, by reason of a disability (whether physical or mental health-related) and the person:
If a disabled adult or child is being cared for in the asylum seeker’s household, a community care assessment, and a carer’s assessment, should be requested urgently from the local authority at the earliest opportunity. The HO’s support duties depend on the outcome of these assessments. HO guidance: Asylum seekers with care needs (version 2) states:
‘The Care Act gives local authorities a duty to carry out a needs assessment to determine whether an adult has needs for care and support. For supported persons, the local authority duty includes:
doing the needs assessment and any carer’s assessment, in the same way they would for a British citizen in the same circumstances
providing residential care if that is assessed as appropriate. The decision must be made according to the same criteria they would normally use
assessing what the person does need (both in terms of care services and any specific accommodation needs) if residential care is not assessed as appropriate
making appropriate provision for any care services that have been assessed as necessary, in the event the person is, or is going to be, accommodated in their area (regardless of who is providing the accommodation)
in the event the person is going to be accommodated outside of the assessment area assisting with maintaining continuity of care by providing a copy of the person’s care and support plan to the receiving authority (the LA in whose area the new accommodation is situated)
considering whether to exercise their power to meet urgent needs under s.19(3) of the Care Act 2014, including needs for accommodation, until their assessment is complete if they are unable to conduct a prompt assessment.’
Possible outcomes following the needs assessments, are that the disabled person may require residential care, care in a particular type of accommodation or care at home with support from members of the asylum seeker’s household.
If residential support is needed, the local authority is under a duty to provide it, and the HO is absolved of any duty to provide asylum support. However, if the disabled person can be cared for at home by the carer, perhaps with local authority support, the HO will be under a duty to provide asylum support, having regard to the local authority’s needs assessments. In that scenario, any member of the asylum seeker’s household caring for the disabled person may be a dependant on the asylum seeker’s asylum support claim. This is a complicated area, and specialist advice should be sought where necessary.
The dependant’s immigration status is not relevant when considering whether they are entitled to support as a dependant of the main applicant. This means, for example, that an asylum seeker can receive s95 support for his/her British child, or his/her spouse who is a refused asylum seeker. Note that in addition to the main applicant, dependants also need to show that they are destitute. For more information about who is considered destitute for support purposes, see ASAP Factsheet 5 – Proving Destitution.
If a supported person wishes to add a dependant to their asylum support claim, they do not have to complete a new application form. Instead, they need to write to the HO (via Migrant Help) giving details of the dependant they wish to add and provide proof that they meet the relevant definition (as outlined above). However, in practice, it is advisable to use the ASF1. This will hopefully ensure that the HO correctly process the request and if they make a decision to refuse, do so in writing with confirmation of the would be dependant’s right to appeal to the Asylum Support Tribunal (see below).
HO policy (section 3.2) states that support should be backdated to commence the date that the HO received sufficient supporting evidence of the dependant’s eligibility. This policy does not apply to new born children, as to which, see below.
If a supported person has a new baby they should write to the HO notifying them of the birth of the child. HO policy states that if evidence of birth is provided within 14 calendar days, then subsistence payments should be backdated to date of birth. If a request to add a dependent is provided after 14 days, the HO will only backdate payments if there is a reasonable explanation for the delay. A letter from the hospital or the treating clinician recording the birth of the child should be accepted as interim evidence. The long birth certificate should then be sent to the HO within 49 days of birth. It is not necessary to wait for the birth to be registered to add a child as a dependant.
A refusal by the HO to add a dependant to an ongoing claim carries a right of appeal to the Asylum Support Tribunal. If an asylum seeker applies for support with a dependant listed on the ASF1 but support is only awarded to the main applicant, then decision can be appealed by the would-be dependant, even though support has been granted for the main applicant. Furthermore, if an asylum seeker already in receipt of asylum support requests a dependant to be added to their support and this request is refused, this decision can also be appealed. For more information on how to appeal see ASAP Factsheet 3 and our how to appeal guide.