29 August 2019
29 August 2019
This Factsheet looks at s4 support for refused asylum-seekers – those who have been refused asylum and exhausted their appeal rights. Updated July 2021
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.
Section 4(2) of the Immigration and Asylum Act 1999 (the ‘IAA 1999’) allows for support to be provided to refused asylum-seekers. Following the abolition of s4(1) in January 2018, references to s4 support always mean s4(2). The relevant Home Office policy is Asylum Support, section 4(2): policy and process.
To qualify for s4 support, refused asylum-seekers must be destitute and meet a narrow set of criteria. The support consists of accommodation and £49.18 a week via a pre-paid Visa card (ASPEN card). Extra money is available to pregnant women and mothers of children under 3. Unlike s95 support, s4 applicants cannot request ‘subsistence only’ support (i.e. no accommodation) and s4 recipients cannot withdraw money using ATM machines.
Dependants of refused asylum-seekers may also qualify for s4 support (See Factsheet 11). For dependants aged under 18, it is important to check if they were born before the refused asylum-seeker exhausted their appeal rights. If so, and they have remained part of the same household, the refused asylum-seeker should still qualify for s95 support until their youngest child turns 18Immigration and Asylum Act 1999 s94(5).
To qualify for s4 support a refused asylum-seeker must satisfy reg 3 of the Immigration and Asylum (Provision of Accommodation to Failed Asylum-Seekers) Regulations 2005 (the ‘Regulations’).
They must:
be destitute, or be likely to become destitute within the next 14 days (or 56 days if they are already receiving support); and
meet one of the conditions set out in reg 3(2)(a)-(e) of the Regulations (see below).
The applicant must prove that they qualify for support “on the balance of probabilities” (i.e. more likely than not). The Home Office will therefore require evidence of destitution and reg 3(2) eligibility (see Factsheet 6 - Evidence for S4 Support).
An applicant must show that they are destitute, or likely to become destitute, within 14 days. A person is destitute if they do not have adequate accommodationThe Asylum Support Regulations 2000 reg 8(3)(3), and/or have insufficient money to meet their and any dependants’ essential living needs (see Factsheet 5 - Proving Destitution).
An applicant must also show they meet one of the conditions in reg 3(2):
Applicants must show they are taking all reasonable steps to leave the UK. They must demonstrate a proactive approach, and continue to do so if support is granted. Whether or not a particular step is objectively reasonable depends on the applicant’s circumstances. For example, do they need to approach the relevant embassy in the UK to obtain valid identity and/or travel documents? If so, are there barriers or delays beyond their control? See the Tribunal’s Landmark decision AS/17/01/36372 (paras 48-50) for guidance from Chamber President Aitken and Principal Judge Storey as to the minimum steps required under reg 3(2)(a).
The requirement at paragraph 49(b) to register with Choices is no longer relevant. Applications for voluntary return should be submitted to the relevant department of Home Office. Note that what appears reasonable in respect of one applicant may not be reasonable for another. However, every applicant should seek written evidence (to the extent possible) to demonstrate they have taken all reasonable steps in their specific circumstances.
Important note: Refused asylum-seekers should be advised that making an application to return voluntarily could negatively impact on any future fresh asylum claims. For this reason, they should seek independent legal advice before applying under reg 3(2)(a).
To qualify under reg 3(2)(b), applicants must show that they are unable to travel due to a physical or mental health problem. It is not enough simply to be receiving treatment in the UK or to have a doctor’s opinion that it would be preferable not to travel. They must have a medical condition which makes them unable to travel on any given day. See R (SSHD v The Asylum Support Adjudicator, Osman & Others [2006] EWHC 1248. Written evidence must be obtained from a medical practitioner confirming the individual is unable to travel, explaining the reason why, and indicating how long this will persist. This information should be written on the Section 4 Medical Declaration form. Generally, the greater level of detail that can be provided, the better (particularly if the client has mental health problems); a client who is particularly unwell may still potentially qualify for s4 support under reg 3(2)(e), even if they do not meet the Osman test for reg3(2)(b). The Home Office provides medical practitioners with a fee for completing a Medical Declaration (see p11 of ‘Asylum support, s4(2): policy and process’) and the completed invoice and form should be sent to the s4 team.
Important note: Pregnancy – Home Office policy accepts that people in the late stages of pregnancy (around six weeks before their expected due date, or earlier if there have been complications), or those with a baby under six weeks old, are unable to travel. In some cases the Tribunal has awarded support to a pregnant woman earlier than six weeks before her due date (see Factsheet 9 – Support for Pregnant Refused Asylum-Seekers).
This condition only applies to a country for which the Home Secretary has stated there is no viable route of return. At the time of writing no such statements have been issued.
If a person wishes to judicially review a decision on their asylum claim they must first apply to the High Court for permission to proceed. Once the High Court has granted permission, the applicant will be eligible for s4 support under this condition. If an applicant has started the judicial review process (for example by sending a pre-action protocol letter or issuing a claim form) but is waiting to learn whether permission will be granted, they will not qualify under this condition. However, they may still qualify on human rights grounds under reg 3(2)(e).
Support must be provided if a refused asylum-seeker’s rights under the European Convention on Human Rights (the ‘ECHR’) would otherwise be breached. The case of R(NS) v First-tier Tribunal [2009] EWHC 3819 (Admin) held that there are “a variety of factual circumstances” in which reg 3(2)(e) may apply and each case should be considered on its own merits. The two most relevant ECHR provisions are likely to be Article 3 (prohibiting torture and inhuman or degrading treatment) and Article 8 (protecting private and family life). Article 5 (right to liberty) and Article 6 (right to a fair trial) may also apply.
The courts have found that denying support to street homeless asylum-seekers with outstanding claims would constitute “inhuman and degrading treatment”R (Limbuela) v Secretary of State for the Home Department [2005] UKHL 66 and is therefore prohibited under Article 3 of the ECHR. These principles also apply to refused asylum-seekers. But, crucially, refused asylum-seekers must show they cannot reasonably be expected to leave the UK. See Factsheet 12 for more information on eligibility under 3(2)(e) or contact ASAP’s Advice Line.
Important note: Further submissions - Many refused asylum-seekers qualify for Section 4 support under reg 3(2)(e) because they have further submissions outstanding. This is when a refused asylum-seeker has submitted new evidence or arguments for the Home Office to consider as part of an application for leave to remain.
In AS/14/11/32141 Principal Judge Storey held that unless the outstanding further submissions are obviously hopeless or abusive, not an application for leave to remain at all, or merely a repetition of an application which has already been rejected, reg 3(2)(e) eligibility is established. She also stated there is no requirement for further submissions to be protection-based.
The s4(2) Home Office policy acknowledges (see p.13) that it is unreasonable to expect a refused asylum-seeker to leave the UK where:
If the further submissions have not yet been lodged this does not necessarily mean that an applicant cannot get support, but the circumstances in which they qualify will be much more limited.
The starting position is the one articulated by the Principal Tribunal Judge in para 31 of AS/14/11/32141 in which she states that she cannot conceive of a situation where the “mere assertion” that the person is planning to make further submissions will be enough to bring one within the scope of s4 eligibility. However, if the applicant can show they have further submission which are not hopeless, abusive, merely repetitious or manifestly unfound, which they have been unable to submit through no fault of their own, then the AST may find that they are eligible for support. These cases are very fact specific. Please read Factsheet 12 for more information or contact our advice line.
Following the High Court decision of R(MK and AH) v SSHD [2012] EWHC 1896 (Admin), the Home Office amended its policy on dealing with applications for s4 support on the basis of outstanding further submissions. All such applications must be decided within 5 working days, and priority decisions must be decided within 2 working days. The policy provides a non-exhaustive list of priority cases which includes: street homeless people; families with minors; disabled people; elderly people; pregnant women; people who have been subjected to torture, rape or other forms of serious sexual violence; potential victims of trafficking. If your client suffers a delay of longer than 5 working days (or 2 days in priority cases) you should consider making a complaint to the Home Office and/or bringing judicial review proceedings.
Note that these time limits relate to when the Home Office must decide the application, as opposed to actually providing the support. If the Home Office grants support but your client suffers a delay receiving it, contact a public law solicitor to see if that delay can be challenged by judicial review.
A decision to refuse an application for s4 support or a decision to terminate s4 support attracts a right of appeal to the First-tier Tribunal (Asylum Support) (the ‘Tribunal’) - see Factsheet 3 - Appealing to the AST.
For further information on where someone might qualify for s4 support under reg 3(2)(e) see Factsheet 12 – Breach of human rights and Section 4.