Guidance in Relation to Asylum Seeking Families at Risk of Destitution

1. The Contextual Circumstances of Asylum Seeking Families in Brighton and Hove

This guidance relates to families who are living in Brighton and Hove and have made an application for Asylum but are at risk of destitution as they are not receiving subsistence payments from the Home Office.

There are two groups of families in this cohort:

• Those who have been in the UK for a long time, perhaps illegally or having made an application via another route, (e.g. Leave to Remain, which has been unsuccessful) who have then decided to apply for Asylum;

• Those who are newly arrived.

If a family have made an application to the Home Office for Leave to Remain under Article 3, Freedom from Inhumane and Degrading treatment, then enquires should be made as to why an Asylum application has not been made.  

For all Asylum seeking families, they may apply for financial support and accommodation under s95 of the Immigration and Asylum Act 1999, or they may apply for financial support alone referred to as 'subsistence only'. If a family applies for accommodation they are dispersed and leave our area, usually to the North of England.

As Brighton and Hove is not a dispersal area, Asylum Seeking families who have come to the city are likely to have done so because they have family, friends or some connection to the area. Therefore by definition they will be applying for 'subsistence only' and choosing not to be dispersed.

In addition, s122 of the Immigration and Asylum Act 1999 specifically prevents Local Authorities providing financial support to a family in these circumstances, stating that:

No local authority may provide assistance under any of the child welfare provisions in respect of a dependant under the age of 18, or any member of his family, at any time when:

1. The Secretary of State is complying with this section in relation to him; or
2. There are reasonable grounds for believing that:
   1. The person concerned is a person for whom support may be provided under section 95; and
   2. The Secretary of State would be required to comply with this section if that person had made an application under section 95.

However, locally and nationally there is an experience of Home Office delays in processing applications for 'subsistence only' meaning that families can be residing in the Brighton and Hove area and at risk of destitution.

Representations from ourselves and local voluntary agencies can help to speed up this process in some instances but a quick resolution to cases is rare.

In such circumstances this clearly creates a tension for the Local Authority as it must ensure that it remains within the law and that financial support comes from the correct source, in this case the Home Office.

Concurrently however there is also a responsibility to ensure that there are not destitute children in the Brighton and Hove area and that where required short term support is provided to alleviate this.

Helpfully, s95 of the Immigration and Asylum Act 1999 defines destitution as:

• (3) For the purposes of this section, a person is destitute if:
  1. He does not have adequate accommodation or any means of obtaining it (whether or not his other essential living needs are met); or
  2. He has adequate accommodation or the means of obtaining it, but cannot meet his other essential living needs.
• (4) If a person has dependants, subsection (3) is to be read as if the references to him were references to him and his dependants taken together.

In order to apply for 'subsistence only' a family must complete and submit and Asylum Support Form (ASF1). The information on this form (available online) is used by the Home Office to determine whether a family are destitute and therefore entitled to support.

It is important to note that this means that the provision of subsistence payments is not a right for all asylum seekers, but is subject to assessment by the Home Office. It is also unlikely that a family who have not been found to be destitute by the Home Office would be found to be destitute by the Local Authority unless there has been a significant change in their circumstances.

However, the Home Office may not initially accept that a family are destitute and may request further evidence which can be difficult and time-consuming to obtain e.g. bank statements from a home country. In the meantime the family are at risk of destitution in our area and the Home Office do not operate a system of making interim payments while undertaking assessments under s95.

2. Procedure to be followed in relation to Asylum Seeking families at risk of destitution

All cases are to be screened by the Front Door for Families by a nominated worker with experience in this area if they are available. The purpose of this screening process is to determine if the family are at risk of destitution and therefore whether an Assessment is required.

The following information should be sought from the referrer and/or parent. If necessary a telephone interpreting service should be used to speak with the parent:

• Confirmation that the family have made an application for Asylum and the date of their application;
• A brief summary of the family's situation in their home country and how they travelled to the UK;
• Confirmation that the family have made an application for Asylum Support and the date of this application;
• Have the family received acknowledgement/confirmation from the Home Office that this application has been received? If so when was this?
• Has the Home Office requested any further information from the family in respect of the application? If so has this been provided? If not, why not?
• What efforts have the family or their representatives made to follow up the Asylum Support Application since it was submitted? What was the outcome of these enquiries?
• Full details for all family members to be requested to include: names, dates of birth, nationality, current address. If the family have made an application for Asylum they will have been issued with an ID card and the reference number from this card should be requested;
• Family members to be added to the NRPF connect database and information to requested from the Home Office to confirm that applications for Asylum have been made. Information also to be requested in relation to the status of the family's Asylum Support Application.

(NB: Under the terms of the agreement with the Home Office/NRPF Connect they have up to 5 days to respond to an enquiry. Given that the timescale for Front Door for Families to undertake screening is a maximum of 3 days it may be necessary to make enquiries via the Home Office duty line on 020 8196 3406. However please note that in order to use this service the family's details must be inputted onto NRPF Connect first).

• Summary of the family's current circumstances to be obtained. Who are they staying with and where? How long have they been staying with them? Can this continue?
• Who else is available to support them, either in Brighton and Hove or in another part of the country? If support is available elsewhere in the UK, would support with travel costs allow them to access this?
• What is their financial situation? What money do they have left? How have they been meeting their living expenses? Have others been supporting them and/or are they accumulating debts?
• Why have the family not applied for accommodation as a means of alleviating destitution? (NB: Not wanting to be dispersed may not be reason enough). Are they being required to pay for their current accommodation?
• If the children are in school/nursery consent to be sought for checks to be undertaken. Is the view of other professionals that the children are at risk of destitution? Are the children receiving free school meals?
• Are the family receiving support from any other organisations e.g. Brighton Voices in Exile, Migrant Help or the Refugee Council. Have they been able to access a foodbank?
• Brighton Voices in Exile offer financial support of £10 per person, per week for up to 12 weeks. Has this been accessed and if so when is it due to expire?

Based on this information a decision is required as to whether the family do appear to be at risk of destitution and therefore whether an assessment is required to explore this further.

It is important to note that in these cases the threshold as to whether an assessment should be opened is the definition of destitution above and not whether or not they would be considered a Child In Need, which is a lower threshold.

If it is decided that the family are not at risk of destitution and therefore an assessment is not required the option to refer the family to Early Help should be considered.

Early Help may support with access to foodbanks, support with applications to schools and nurseries (if required) and further advocating on behalf of the family to expedite the processing of their application. Sussex Interpreting Service also offer a free service, provided by volunteers to help migrants register with health services.

3. Undertaking an Assessment of destitution

If it appears that a family might be at risk of destitution a Strengthening Families Assessment may be required to establish if this is the case and the normal procedure for undertaking a Strengthening Families Assessment (see Assessments Procedure) should therefore be followed.

A visit to the home where the family are staying should be made and if the children are old enough then, with consent, they should be spoken with. Interpreters are to be used where required.

The suggested questions outlined above should be explored with the family in greater detail and enquiries made as to whether they are able to make an alternative plans which may alleviate destitution. Do the family have any other assets or funds overseas which may be easily liquidated?

Any documentary evidence which proves their identity and/or supports their claim to be destitute should be seen. (NB: If an Asylum application has been made it is likely that the Home Office will hold the family's passports).

It may be that following this visit the Social Work Assessment is that the family are not, after all, destitute and consideration can be given to support being provided via Early Help, as above.

If the family are found to be destitute then consent may be sought from the Team/Pod Manager to make a cash payment to the family to alleviate this. In agreement with the Team/Pod Manager this should be a one-off payment to cover a fixed period, usually 14 days in the first instance, at the end of which the Social Worker should reassess whether or not the family remain destitute and whether a further payment is required.

These payments should be made in line with the amounts stated in the current Local Authority policy and should not exceed the amount the family would be entitled to from the Home Office as Asylum seekers. As of February 2016 this is a flat rate of £36.95 per family member.

In the interim period further efforts should be made by the family and the social worker to communicate with the Home Office to speed up the processing of their claim for Asylum Support. If further information is required by the Home Office then this should be provided by the family immediately.

The social worker should advise the Home Office that they believe the family are destitute and state that support has been provided and the date which this will end. The social worker should request that the Home Office make a decision by this date on whether they will be providing subsistence money.

Payments for families in these situations should be short-term only and the Local Authority, bearing in mind that it is precluded in law from providing support, should not be providing long-term support.

In addition, despite this preclusion, the Home Office may take into account any Local Authority support when making its own assessment of destitution. Therefore the provision of Local Authority support may in itself prevent the Home Office finding a family destitute potentially committing the Local Authority itself to longer term support for which is it should not be responsible.

4. The provision of Accommodation

The provision of accommodation to Asylum-Seeking families should only be made in extenuating circumstances and for a short period of time while negotiations with the Home Office take place.

If a family have been living in Brighton and Hove but are not longer able to stay with family and/or friends then they should make contact with the Home Office to request accommodation.

If the Home Office do not agree to provide this accommodation, then it may be necessary for the family to present in person at Lunar House in Croydon. If the family are destitute then they can be provided with travel warrants to make this journey.

If the family are unable to remain in their current accommodation overnight/the weekend then accommodation can be provided until the next working day that the family are able to travel to Lunar House, Croydon.

If, following their presentation at Lunar House, the family are still not provided with accommodation by the Home Office and return to Brighton it may be necessary to provide accommodation on a short-term basis to prevent destitution and homelessness while the matter is resolved.

In this situation a Strengthening Families Assessment should be opened and this should be accompanied by urgent communications with the Home Office requesting that they provide the family with accommodation.

Unfortunately this will, as outlined above, require the family to be dispersed away from Brighton and Hove. The Local Authority cannot and should not make a long-term commitment to providing accommodation to an Asylum seeking family. Whilst appreciated as important, representations from the family that dispersal would result in moving away from support networks or changing the children's school or nursery are not sufficient to prevent dispersal.

5. Ending Support 

Where financial support is being provided by the Local Authority and the Home Office advise that they have not found the family destitute and will not be providing subsistence money under s95, the Local Authority cannot, without very good reason, continue to support the family.

If the Local Authority believe that the family are genuinely destitute then it may be that full information was not provided to the Home Office within the ASF1 and the family should be supported to provide this and appeal the decision.

At this point the social worker should again consider with the family whether accepting dispersal may be a means of alleviating destitution. In any situation where a family are dispersed with the family's consent then contact may be made with voluntary organisations in the receiving area to ensure that appropriate support is provided on arrival and that they are signposted to other services e.g. how to apply for school places.

If the family have accepted dispersal and additional safeguarding concerns have been identified then a referral should be made to the Child Protection Team in the receiving Local Authority.

In general, support from the Home Office cannot be backdated unless it can be shown that the delay was due to an error on the part of the Home Office itself. Therefore the Social Worker should consider whether there are grounds for such an application to be made which may result in some money being refunded.

If the family's application for s95 subsistence is successful then they should advise the social worker immediately and no further support provided by the Local Authority. If there are no other safeguarding concerns then the case may be closed.

If the family's claim for Asylum is processed prior to their application for support then they may require support to access mainstream benefits and to complete application forms etc. A referral to Early Help may be made for this support to be provided.

Under these circumstances the family may require financial support for a further period until benefits are paid. However once these payments are being made in the absence of any further concerns the case may be closed.