Home Office accommodation

The Home Office can also perform its duties to provide accommodation to victims outside of the Victim Care Contract, through asylum support accommodation under section 98, section 95, or section 4 of the Immigration and Asylum Act 1999 ( ‘IAA 1999’), or under Schedule 10 of the Immigration Act 2016 (‘IA 2016’).

Home Office accommodation is unsuitable for victims most of the time, and those working with victims should be cautious in advocating for it. However, there are reasons why a victim might prefer, for instance, section 95 asylum support accommodation over NRM accommodation, the latter being the usual way that the Home Office provides accommodation under the MSVCC (although it is not the only way). Although section 95 accommodation is often of a low standard, compared to a safe house it allows a greater degree of independence. For example, there are no staff onsite, guests are allowed, and it is possible to share the address. For these reasons and others, it is not uncommon for victims to prefer, and to perhaps even require, Home Office accommodation over a safe house.

Despite the fact that Home Office accommodation is provided under legal duties outside the trafficking framework, Home Office accommodation is a way that duties under the trafficking framework to provide accommodation can be performed. In practice, though, MSVCC accommodation and, for example, asylum support accommodation, are accessed through different channels: MSVCC accommodation is accessed via The Salvation Army (see above), and asylum support accommodation is generally accessed via Migrant Help.

There appears to be little coordination between these two branches of the Home Office. However, if the Home Office is refusing to provide to a victim appropriate and safe MSVCC accommodation (through its agent The Salvation Army) as well as appropriate and safe asylum support accommodation, it is possible to challenge both failures at once under the trafficking legal framework, through judicial review, following referral to a public law solicitor.

This section will focus on how the Home Office’s duties to provide accommodation to asylum seekers, failed asylum seekers, and to those on immigration bail, overlap with its duties to provide accommodation to victims . For more detail on Home Office accommodation, please see the useful factsheets prepared by the Asylum Appeal Project (ASAP).

As will be seen below, it is often necessary for individuals to instruct a legal aid public law solicitor to assist them to enforce their rights to appropriate and safe Home Office accommodation in the face of failures to provide it. ATLEU offers publicly-funded legal advice and representation in public law cases. Our referrals email is referrals@atleu.org.uk and our online referrals system that links to legal aid advisors around the country is referrals.athub.org.uk. There is also a list of legal aid solicitors on the Ministry of Justice website.

Section 95

Support, including accommodation, may be provided, or arranged, by the Home Office under section 95 of the IAA 1999 to asylum seekers or dependents of asylum seekers who appear to the Home Office to be destitute. Section 95 accommodation is therefore available to destitute victims who are also asylum seekers.

Section 95 takes the form of accommodation and financial support. It is possible to apply for financial support only. The rate of financial support is currently set at £39.63 per person per week, with a small amount of extra money for pregnant women and for mothers with children under three. A maternity grant of £300 can also be applied for. See the government website which outlines the asylum support rates. Where the victim is also entitled to MSVCC financial support, their asylum support will be topped up with MSVCC financial support to £65 a week.

Eligibility

Asylum seekers and their dependants are eligible for section 95 support if they appear to the Home Office to be destitute.

Who is an asylum seeker?

An asylum seeker for the purposes of asylum support is an individual who is over 18 and who has a claim for asylum under the Refugee Convention or an outstanding claim under Article 3 ECHR that has not yet been determined. This includes individuals with a pending appeal. It does not include those with pending applications for leave on any other basis. It does not include failed asylum seekers with outstanding further submissions that have not been recorded by the Home Office as constituting a fresh claim for asylum.

Who is a dependant?

A dependant is a spouse or a civil partner, an unmarried partner if living together for over two of the last three years, a child under 18, or an adult member of the household in need of care and attention due to disability.

What is destitution?

For section 95 support, a person meets the destitution test if they are destitute now or facing destitution within 14 days, or, if they are already receiving support, within 56 days.

The destitution test is contained in section 95(3) of the IAA 1999:

… a person is destitute if:

(a) he does not have adequate accommodation or any means of obtaining it

(whether or not his other essential living needs are met); or

(b) he has adequate accommodation or the means of obtaining it, but cannot

meet his other essential living needs

Accommodation that is unsuitable in relation to the recovery needs of a victim would be unlikely to constitute ‘adequate accommodation’.

Section 55

Section 55 of the Nationality, Immigration and Asylum Act 2002 (‘NIAA 2002’) requires the Home Office to refuse section 95 support to individuals where the Home Office is not satisfied that their claim for asylum was made ‘as soon as reasonably practicable’. The Home Office’s guidance states that this should generally be accepted to be within three days, although the Home Office is required to assess each case individually. Regardless, victims are obviously adversely affected by this provision as they are often held in exploitation in the UK following their arrival.

However, the Home Office cannot refuse support under section 55 where refusing support would breach the individual’s human rights. Since a refusal of accommodation where the individual would otherwise be street homeless would usually be a human rights breach, in practice the Home Office does not make section 55 decisions in cases where accommodation is applied for (this is not the case, however, when individuals apply for financial support only).

How to apply?

To access section 95 support, the form ASF1 must be completed and sent by email to ASCorrespondence@migranthelpuk.org. Advisors or support workers should complete the form on the victim’s behalf. Migrant Help can also assist individuals to submit an application.

Evidence of destitution must be enclosed with the form. Section 14 of the ASF1 has a very small space for detailing ‘individual circumstances’. Section 15 has a small space to detail individual accommodation requirements. Instead of trying to confine the individual’s circumstances and requirements to these small boxes, a statement from the individual should be enclosed with the ASF1, explaining the individual’s particular vulnerabilities, their accommodation requirements (including location) in the light of those vulnerabilities, and the circumstances surrounding the individual’s destitution. Attention should be drawn to the enclosed statements in the boxes on the form. Evidence supporting the individual’s vulnerabilities should also be enclosed, if possible.

If the individual is currently homeless, or becomes homeless following the submission of the ASF1, section 98 accommodation, or ‘initial accommodation’, can be requested (see below). MSVCC accommodation could also be requested (see above).

The accommodation

Section 95 accommodation is usually in multiple occupancy houses. It is usually, but not always, mixed sex. Home Office policy is to ‘disperse’ individuals outside of London and the South East unless there are exceptional reasons why they cannot be dispersed. Where this is the case, these reasons should be explained with the ASF1 along with supporting evidence.

Challenging unsuitable accommodation

Section 95 accommodation accommodation is rarely suitable. A victim may require single-sex accommodation, or self-enclosed accommodation. The accommodation may be in an area connected to their exploitation, putting them at risk. It may be overcrowded. Or it may be in a location far from their support network. It may be in a state of disrepair. It may be unsuitable for a disabled child. Without suitable accommodation, a victim’s recovery will likely be impeded or prevented altogether, placing them at further risk of exploitation.

In cases where section 95 accommodation is unsuitable in relation to the needs of a victim, this should be brought to the attention of the Home Office via Migrant Help (ASCorrespondence@migranthelp.org), and it is usually helpful to copy in (escalations@migranthelpuk.org) and The Salvation Army (mstsupport@salvationarmy.org.uk) as soon as possible. Evidence of unsuitability should be enclosed, including medical evidence if possible. Alternative accommodation should be requested, and a date in the near future by which such accommodation must be provided should be given. This date should not be more than two weeks in the future.

Importantly, it may be that the risk of harm of remaining in the unsuitable accommodation is so great that it would be unreasonable for the individual to remain in the accommodation for any longer. In such cases, an earlier deadline should be given. The length of time within which accommodation should be sourced should be determined by the needs of the victim. In certain cases, it will be reasonable to request a very short deadline of 24 hours or less.

If the Home Office (either the asylum support team or The Salvation Army or both) fails to secure alternative accommodation, the assistance of a Legal Aid public law solicitor should be sought. For further information on challenging refusals by The Salvation Army to provide accommodation, see above.

Challenging delays, refusals or terminations

It is common for there to be lengthy delays to the processing of applications for section 95 support. To challenge delays, the assistance of a Legal Aid public law solicitor should be sought.

If an application for section 95 support is refused, individuals have a right of appeal to the Asylum Support Appeals Tribunal. Legal Aid is generally not available for these appeals. The Asylum Support Appeals Project provides free legal advice and representation at the Tribunal, and runs an advice line for advice agencies. It is advisable to contact them following a refusal of section 95 support.

In urgent cases, however, an appeal may not be an appropriate remedy, due to the length of time it takes for an appeal to be heard. In such cases, an urgent application for judicial review including an application for interim relief may be the only appropriate remedy. In urgent cases, the assistance of a Legal Aid public law solicitor should therefore be sought.

Section 95 support will be terminated following a determination of the individual’s asylum claim. In the case of negative decisions where individuals’ appeal rights have been exhausted, they will have 21 days to leave the section 95 accommodation. However, in households with a dependent child born before appeal rights have been exhausted, section 95 support continues until the child turns 18. In cases where the individual’s appeal rights have been exhausted, the individual may be eligible for section 4 support (see below), or for MSVCC accommodation (see above).

If the individual is granted leave to remain, 28 days’ notice will be given to leave the section 95 accommodation. If the individual has been granted leave to remain, they will likely be eligible for homelessness assistance from a local authority (see below).

Case study: Interim relief

Adesina is an asylum seeker and victim with a positive reasonable grounds decision from Nigeria. She has been diagnosed with depression. She had been staying for the last fifteen months at the home of a host through Refugees at Home. As the placement had come to an end, she was asked to leave within a month. She applied for section 95 support via Migrant Help, with supporting medical evidence that she required a self-contained room in a female-only building in London. She did not hear anything back from the Home Office or Migrant Help. Two days before she had to leave her accommodation, she called Migrant Help 13 times, on hold for two hours at a time. Eventually, she got through to somebody who said her application had not been processed.

Adesina then instructed public law solicitors. They sent an urgent pre-action letter challenging the delay, stating that Adesina was going to be street homeless imminently. Medical evidence was enclosed. The letter threatened legal action if the Home Office did not provide either section 95 accommodation or MSVCC accommodation within 24 hours. No response was received to this correspondence.

Adesina arranged to stay for two more nights with her host. In this time, an emergency legal aid certificate was granted and an application for judicial review and interim relief was lodged in the High Court. Later that day, interim relief was granted. The court order required the Home Office to provide MSVCC accommodation or section 95 accommodation until the conclusion of the NRM process within 24 hours. Appropriate section 95 accommodation was then provided.

Section 98

Support, including accommodation, may be provided, or arranged, by the Home Office under section 98 of the IAA 1999 to asylum seekers or dependents of asylum seekers who appear that they may be destitute. Note that this is a lower threshold to meet than the test for section 95 support.

Section 98 support is provided to those who are awaiting a decision on an application for section 95 support, or who need support prior to submitting an application for section 95 support. This support is temporary—it can only last until the Home Office is able to determine whether support may be provided under section 95. Section 98 support is also called ‘initial accommodation’.

It is our experience that section 98 accommodation is often unsuitable for victims , who often have a need for self-enclosed single-sex accommodation. We do not advise that victims apply for section 98 if such accommodation would be unsuitable in relation to their recovery needs. In such circumstances, MSVCC accommodation should be applied for via The Salvation Army instead (see above). There may be circumstances, however, where a victim may want to apply for section 98 accommodation, for example, where hostel-style accommodation would not be unsuitable in relation to their recovery needs.

Eligibility

The following are eligible for section 98 support:

Asylum seekers and their dependants who appear to the Home Office that they may be destitute (that they do not have access to ‘adequate accommodation’ or they cannot meet their ‘essential living needs’) and are awaiting a decision on an application for section 95 support
Asylum seekers and their dependants who appear to the Home Office that they may be destitute (that they do not have access to ‘adequate accommodation’ or they cannot meet their ‘essential living needs’) and require support before they are able to submit an application for section 95 support. In these cases, an application for section 95 support must be submitted following the receipt of section 98 support.

Who is an asylum seeker?

Who is a dependant?

What is destitution?

The destitution test is contained in section 95(3) of the IAA 1999:

… a person is destitute if:

(a) he does not have adequate accommodation or any means of obtaining it

(whether or not his other essential living needs are met); or

(b) he has adequate accommodation or the means of obtaining it, but cannot

meet his other essential living needs

Accommodation that is unsuitable in relation to the recovery needs of a victim would be unlikely to constitute ‘adequate accommodation’.

Again, note that the destitution test for section 98 support is less stringent than for section 95 support. For section 98 support, the individual must only appear to the Home Office that they ‘may’ be destitute, where for section 95 support the individual must appear to the Home Office to ‘be’ destitute. Additionally, in contrast with section 95 support where the individual must be destitute either at the point of application or within 14 days, the individual must appear that they may be destitute at the time of application.

Section 55

Section 55 of the NIAA 2002 requires the Home Office to refuse section 98 support to individuals where the Home Office is not satisfied that their claim for asylum was made ‘as soon as reasonably practicable’. The Home Office’s guidance states that this should generally be accepted to be within three days, although the Home Office is required to assess each case individually. Regardless, victims are obviously adversely affected by this provision as they are often held in exploitation in the UK following their arrival.

However, the Home Office cannot refuse support under section 55 where refusing support would breach the individual’s human rights. As a refusal of accommodation where the individual would otherwise be street homeless would usually be a human rights breach, in practice the Home Office does not make section 55 decisions in cases where accommodation is applied for.

How to apply?

Section 98 support can be requested in two ways, either at the same time as the individual claims asylum, or after a claim has already been made.

Section 98 support can be requested at the asylum screening interview. In these cases, evidence of destitution should be brought to the interview. No appointment is required if the individual is homeless. The Home Office requests that individuals call the asylum intake unit on 0300 123 4193 (Monday to Thursday, 9am to 4:45pm, Friday, 9am to 4:30pm) to determine the closest asylum registration location and its opening hours.

In cases where the individual has already claimed asylum, section 98 accommodation can be requested with the ‘Initial Accommodation Referral Form’. Though this form is not available on the Home Office website, ASAP has made it available. The form should be emailed to RoutingIAValidation@homeoffice.gov.uk. A decision should be made before the end of the working day on which the application is received.

Evidence of destitution should be enclosed with the form, if possible. A statement from the individual should also be enclosed, explaining the individual’s particular vulnerabilities, their accommodation requirements in the light of those vulnerabilities, and the circumstances surrounding the individual’s destitution. Evidence supporting the individual’s vulnerabilities should be enclosed, if possible.

Advisors or support workers should complete the form on the individual’s behalf. Migrant Help can also assist individuals to submit an application.

The accommodation

The standard of accommodation used by the Home Office to discharge its duties under section 98 tends to be of a low standard. An individual is likely to be placed in full-board hostel accommodation, with shared bedrooms. Section 98 accommodation is likely to be mixed sex. It is our experience that section 98 accommodation is often unsuitable for victims.

Challenging unsuitable accommodation

Section 98 accommodation can be unsuitable for a victim or their family for many reasons. A victim may require single-sex accommodation, or self-enclosed accommodation. The accommodation may be in an area connected to their exploitation, putting them at risk. It may be overcrowded. Or it may be in a location far from their support network. It may be in a state of disrepair. It may be unsuitable for a disabled child. A victim may have been accommodated in section 98 accommodation for an unsuitable length of time, due to delays in processing their application for section 95 support.

In cases where section 98 accommodation is unsuitable in relation to the needs of a victim, this should be brought to the attention of the Home Office via Migrant Help (ASCorrespondence@migranthelp.org), and it is usually helpful to copy in (escalations@migranthelpuk.org) and The Salvation Army (mstsupport@salvationarmy.org.uk) as soon as possible. Evidence of unsuitability should be enclosed, including medical evidence if possible. Alternative accommodation should be requested, and a date in the near future by which such accommodation must be provided should be given. This date should not be more than two weeks in the future. Importantly, it may be that the risk of harm of remaining in the unsuitable accommodation is so great that it would be unreasonable for the individual to remain in the accommodation for any longer. In such cases, an earlier deadline should be given. The length of time within which accommodation should be sourced should be determined by the needs of the victim. In certain cases, it will be reasonable to request a very short deadline of 24 hours or less.

Challenging delays, refusals or terminations

If a decision is not made on a section 98 application ‘before the end of the working day on which the application is received’, a legal aid public law solicitor should urgently be sought to challenge the delay by judicial review.

There is no right of appeal against a refusal of section 98 support, however, a reconsideration of the decision can be requested, although, given the urgency of section 98 requests, this is not likely to be an adequate solution. If the Home Office refuses to reconsider, or makes another negative decision, or if the matter is urgent, the assistance of a Legal Aid public law solicitor should be sought, as an application for judicial review including an application for interim relief will often be the only effective remedy.

Section 98 support can be terminated for a number of reasons. Section 98 support is only provided pending an application for section 95 support. If the application for section 95 is refused, section 98 support will end. Individuals have a right of appeal against section 95 support (but there is no Legal Aid available for this) and section 98 accommodation may continue pending the appeal if the individual is vulnerable.

In cases where a victim’s section 98 support is terminated following a refusal of an application for section 95 support, the assistance of a Legal Aid public law solicitor should be sought.

Section 98 support can also be terminated if the individual fails to travel to their section 95 accommodation. In these cases, reasons why the individual failed to travel should be communicated to the Home Office as soon as possible and an alternative date for travelling to the section 95 accommodation should be requested. The assistance of a Legal Aid public law solicitor should be sought following the termination of section 98 support on this basis.

Finally, section 98 support will be terminated following a final decision on the individual’s asylum claim. 21 days’ notice will be given if the individual’s appeal rights have been exhausted, and 28 days’ notice will be given if the individual has been granted leave to remain. In cases where the individual’s appeal rights have been exhausted, the individual may be eligible for section 4 support (see below), or for MSVCC accommodation (see above). If the individual has been granted leave to remain, they will likely be eligible for homelessness assistance from a local authority (see below).

Case study: Challenging a delay in decision on section 95 accommodation

Manjola is an Albanian asylum seeker with two children, aged two and seven. She has severe PTSD which is aggravated by living with men. She has a positive reasonable grounds decision.

She was living with a friend in Enfield, North London. However, last year, her friend moved back to Albania at short notice and Manjola was due to be homeless in a matter of days. She called Migrant Help who helped her apply for section 98 support. The next day, she was placed in a single room with her two children, in a large hostel building in South London. The accommodation was shared with men.

Migrant Help helped her complete an application for section 95 support which was submitted shortly after moving in. She was told that the hostel accommodation was only temporary. However, after ten months, Manjola and her children were still in the room, with terrible consequences for her mental health.

She then instructed public law solicitors to challenge the delay in making a decision on her section 95 accommodation. An urgent pre-action letter was sent to the Home Office, with supporting psychological evidence and evidence from her support worker testifying to the effect of the accommodation on her psychological recovery. Her solicitors requested the Home Office provide appropriate and safe section 95 accommodation within three days.

No response was received, and an application for judicial review was lodged on the fourth day at the Administrative Court. Following the serving of the application on the Home Office, the Home Office then provided accommodation that was suitable for Manjola and her children, and the case was settled.

Section 4

Support, including accommodation, may be provided, or arranged, by the Home Office under section 4(2) of the IAA 1999 to failed asylum seekers or dependents of failed asylum seekers who are destitute.

Section 4 support takes the form of accommodation and financial support on a prepaid card. It is not possible to apply for financial support only. The rate of financial support is currently set at £39.63 per person per week. See the Government website which outlines the asylum support rates. It is possible to apply for extra money to pay for services such as travelling to healthcare appointments, travelling to register a birth, travel for dependants, the provision of birth certificates, maternity payments, and stationary. For a full list, see the section 4(2) guidance.

Where the victim is also entitled to MSVCC financial support, their asylum support should be topped up by The Salvation Army to £65 a week.

Eligibility

To be eligible for section 4 support, failed asylum seekers must meet the criteria outlined in the Immigration and Asylum (Provision of Accommodation to Failed Asylum-Seekers) Regulations 2005.

The criteria is as follows:

The failed asylum seeker must be destitute
The failed asylum seeker must also meet one of the following conditions:
- Be taking all reasonable steps to leave the UK
- Be unable to leave the UK on account of a physical impediment to travel or some other medical reason
- Be unable to leave the UK because in the opinion of the Secretary of State there is currently no viable route of return available
- Have made an application for judicial review of a decision in relation to his asylum claim which has, in England and Wales, been granted permission to proceed
- Be in circumstances where the provision of support is necessary to avoid a breach of human rights

Who is a failed asylum seeker?

A failed asylum seeker for the purposes of asylum support is an individual who is over 18 and whose claim for asylum under the Refugee Convention or whose claim under Article 3 ECHR has been refused with no further right of appeal. It does not include those whose applications for leave to remain on any other basis have been refused. It does include those whose asylum or Article 3 ECHR applications have been refused and who have outstanding further submissions that have not been recorded by the Home Office as constituting a fresh claim for asylum.

Who is a dependant?

What is destitution?

For section 4 support, a person meets the destitution test if they are destitute now or facing destitution within 14 days, or, if they are already receiving support, within 56 days.

The destitution test is contained in section 95(3) of the IAA 1999:

… a person is destitute if:

(a) he does not have adequate accommodation or any means of obtaining it

(whether or not his other essential living needs are met); or

(b) he has adequate accommodation or the means of obtaining it, but cannot

meet his other essential living needs

Accommodation that is unsuitable in relation to the recovery needs of a victim would be unlikely to constitute ‘adequate accommodation’.

Section 55

Section 55 of the Nationality, Immigration and Asylum Act 2002 requires the Home Office to refuse section 95 support to individuals where the Home Office is not satisfied that their claim for asylum was made ‘as soon as reasonably practicable’. The Home Office’s guidance states that this should generally be accepted to be within three days, although the Home Office is required to assess each case individually. Regardless, victims are obviously adversely affected by this provision as they are often held in exploitation in the UK following their arrival.

Human rights

This section will focus only on the final human rights criterion, which is the most likely to apply to victims. For an overview of all five of the section 4 conditions, see the ASAP factsheet on section 4 support. It must again be emphasised that section 4 support is highly unlikely to be suitable accommodation for victims, and should be seen only as a last resort. In many cases, a victim who has an entitlement to section 4 support will be entitled to NRM accommodation, which is more likely to be suitable.

In many circumstances, it will not be arguable that a breach of human rights will follow a refusal of section 4 support, as in many cases a breach can be avoided by the individual returning to their country of origin. However, there are many cases where a refusal of section 4 support will constitute a human rights breach. It is likely that a disproportionate number of these cases will involve victims, as victims are likely to have strong further arguments following a refusal of asylum in favour of a grant of leave to remain or in favour of a reconsideration of a negative NRM decision, and they are highly likely to suffer from vulnerabilities, especially mental health conditions.

ASAP has provided a list of examples where support has been provided on human rights grounds. These include where an out-of-time appeal has been submitted to the First-Tier Tribunal, where further submissions have been submitted, where further submissions have not yet been submitted but an appointment has been made at the Further Submissions Unit, where an Article 8 ECHR claim is outstanding, and where potential judicial review proceedings have commenced, or proceedings in the European Court of Human Rights.

In addition to the above examples, it would likely be a breach of an individual’s rights under Article 4 ECHR to refuse to provide section 4 support to a victim who is in the NRM or who has received a positive conclusive grounds decision and who would otherwise not have appropriate and safe accommodation.

However, in these types of cases it is likely that the individual would also have an entitlement to NRM accommodation. In such cases it is often in the individual’s interest to make a request to The Salvation Army to re-enter NRM accommodation (see above).

It may also be a breach of an individual’s ECHR rights to refuse support in cases where the individual is unable to leave the UK due to a severe mental health condition. Medical evidence should be sought in these cases.

How to apply?

To access section 4 support, the form ASF1 must be completed and sent by email to ASCorrespondence@migranthelpuk.org. Advisors or support workers should complete the form on the individual’s behalf. Migrant Help can also assist individuals to submit an application.

Evidence of destitution must be enclosed with the form. Section 14 of the ASF1 has a very small space for detailing ‘individual circumstances’ and a box for victims to tick. Section 15 has a small space to detail individual accommodation requirements. Instead of trying to confine the individual’s circumstances to these small boxes, a statement from the individual should be enclosed with the ASF1, explaining how the individual satisfies at least one of the five section 4 criteria, the individual’s particular vulnerabilities, their accommodation requirements (including location) in the light of those vulnerabilities, and the circumstances surrounding the individual’s destitution. Evidence supporting all submissions made should also be enclosed, if possible.

The accommodation

Section 4 accommodation is usually in multiple occupancy houses. It is usually mixed sex. Home Office policy is to ‘disperse’ individuals outside of London and the South East unless there are exceptional reasons why they cannot be dispersed. These reasons should be explained with the ASF1 along with supporting evidence.

Challenging unsuitable accommodation

Section 4 accommodation can be unsuitable for a victim or their family for many reasons. A victim may require single-sex accommodation, or self-enclosed accommodation. The accommodation may be in an area connected to their exploitation, putting them at risk. It may be overcrowded. Or it may be in a location far from their support network. It may be in a state of disrepair. It may be unsuitable for a disabled child. The victim may have a need for a support worker under the MSVCC. The lack of suitable accommodation may be placing the victim at risk of further exploitation by impeding their recovery.

In cases where section 4 accommodation is unsuitable in relation to the needs of a victim, this should be brought to the attention of the Home Office via Migrant Help (ASCorrespondence@migranthelp.org), and it is usually helpful to copy in (escalations@migranthelpuk.org) and The Salvation Army (mstsupport@salvationarmy.org.uk) as soon as possible. Evidence of unsuitability should be enclosed, including medical evidence, if possible.

Alternative accommodation should be requested, and a date in the near future by which such accommodation must be provided should be given. This date should not be more than two weeks in the future. Importantly, it may be that the risk of harm of remaining in the unsuitable accommodation is so great that it would be unreasonable for the individual to remain in the accommodation for any longer. In such cases, an earlier deadline should be given. The length of time within which accommodation should be sourced should be determined by the needs of the victim. In certain cases, it will be reasonable to request a very short deadline of 24 hours or less.

If the Home Office (either the asylum support team or The Salvation Army or both) fails to secure alternative accommodation, the assistance of a Legal Aid public law solicitor should be sought.

Challenging delay, refusals or terminations

It is common for there to be lengthy delays to the processing of applications for section 4 support. To challenge delays, the assistance of a Legal Aid public law solicitor should be sought.

If an application for section 4 support is refused, individuals have a right of appeal to the Asylum Support Appeals Tribunal. Legal Aid is generally not available for these appeals. The Asylum Support Appeals Project provides free legal advice and representation at the Tribunal, and runs an advice line for advice agencies. It is advisable to contact them following a refusal of section 4 support.

There are several grounds on which section 4 support may be terminated. For example:

The individual may be granted leave to remain on the basis of their further submissions or on another basis. In this case they will be given 28 days’ notice to leave the accommodation (and they will usually become eligible for mainstream homelessness assistance (see below)).
The individual’s further submissions may be refused with a right of appeal, with the further submissions recorded as a fresh claim for asylum or leave under Article 3 ECHR. This means that the individual will no longer be eligible for section 4 support but will become eligible for section 95 support, for which they may have to apply.
Section 4 support may be terminated following the refusal of the individual’s further submissions with no right of appeal. In these cases, however, there is a right of appeal of the refusal of section 4 support to the Asylum Support Tribunal—see above.

Case study: Reconsideration

Abeo is a Nigerian failed asylum seeker. His appeal rights have been exhausted. He has a negative conclusive grounds decision. He was poorly represented at his asylum appeal and his immigration solicitors did not challenge the negative conclusive grounds decision, which had numerous issues with it.

He had been accommodated in section 4 accommodation. However, he received a letter from the Home Office giving him 28 days to leave the accommodation, as the Home Office stated that it would not breach his human rights to terminate the accommodation.

Following this letter, Abeo instructed immigration solicitors who submitted a request for reconsideration of the negative conclusive grounds decision on the grounds of new evidence. However, the Single Competent Authority Authority had not agreed to reconsider by the time he had been given to leave the accommodation.

His support worker from the British Red Cross submitted a request for NRM accommodation to The Salvation Army. This was refused on the basis that Abeo had received a negative conclusive grounds decision. Abeo was facing homelessness in a week. Abeo then instructed public law solicitors, who wrote a pre-action letter to the Home Office requesting emergency NRM accommodation (on the basis that a reconsideration request had been submitted). In response to the pre-action letter, the Home Office agreed to move Abeo into NRM accommodation.

Schedule 10

Schedule 10 accommodation is provided for a limited period (usually up to three months) under Schedule 10 of the IA 2016. It is accommodation provided to those on immigration bail, that is, individuals who have no permission to be in the UK but who are not detained, and who must instead report to an immigration reporting centre. It is difficult to apply for and to be granted Schedule 10 accommodation, to the extent that a recent judgment has characterised the Schedule 10 system as ‘systematically unfair’ (R (on the application of Humnyntskyi & Ors) v Secretary of State for the Home Department [2020] EWHC 1912 (Admin). The Home Office is now required to update its policy, however it is unclear when a new policy will be published.

One important outcome of this case is that individuals whom the Home Office continued to detain following a grant of ‘bail in principle’ pending the securing of Schedule 10 accommodation may have a claim for unlawful detention. Legal advice should be sought from a solicitor with a Legal Aid contract for claims against public authorities.

Eligibility

Schedule 10 accommodation is a true last resort. In practice, victims are likely to require Schedule 10 accommodation in circumstances where they are not eligible for MSVCC accommodation due to a negative NRM decision, cannot access asylum support due to not having claimed asylum, cannot access accommodation under the Care Act 2014 or the Localism Act 2011, perhaps because they have been been refused accommodation by a local authority, and cannot access section 17 support due to having no dependent children.

However, in these cases immigration advice should always be sought as soon as possible, especially because it is likely that a victim will have grounds to argue an asylum claim or a claim under Article 3 ECHR. If such a claim is made, they would then become eligible for asylum support.

It is not enough to be in the position of having no other options. The guidance limits the granting of Schedule 10 support to ‘extreme circumstances’. This includes Foreign National Offenders (FNOs) who are assessed as being at a high risk or very high risk of causing serious harm to the public. But it also includes circumstances where a failure to grant Schedule 10 accommodation would result in a human rights breach. In cases where the individual cannot be expected to return to their country of origin, street homelessness would likely constitute a breach of Article 3 ECHR. For example, where new evidence has been obtained for the purposes of making a request for reconsideration of a negative NRM decision (but the request has not yet been submitted), the individual could not be expected to leave the UK, and a refusal to provide Schedule 10 accommodation would therefore likely constitute a breach of Article 3 ECHR (and possibly also Article 4 ECHR).

How to apply?

For individuals in detention, Legal Aid is available for bail applications. The assistance of a Legal Aid immigration solicitor should be sought.

It is advisable that individuals in detention who have been granted bail in principle pending the provision of Schedule 10 accommodation write to the Home Office requesting immediate release, explaining that their continued detention is unlawful in the light of the recent judgment R (on the application of Humnyntskyi & Ors) v Secretary of State for the Home Department [2020] EWHC 1912 (Admin).

For individuals who are classed as FNOs, or who have been granted bail by the Special Immigration Appeals Commission (SIAC), reference should be made in their bail application (form B1 or BAIL 401) as to why they satisfy the ‘exceptional circumstances’ criteria in the guidance. This should usually be an explanation of why a failure to grant Schedule 10 accommodation would breach their ECHR rights.

Individuals who are not FNOs or SIAC cases, whether they are detained or not, should set out why they satisfy the ‘exceptional circumstances’ criteria on form BAIL 409 in addition to their application for bail. This should usually be an explanation of why a failure to grant Schedule 10 accommodation would breach their ECHR rights.

The individual’s particular accommodation requirements should also be outlined on the form.

Decisions on BAIL 409 forms should be made within five working days. However, in the cases of vulnerable people including those who are street homeless or potential victims of trafficking (see the guidance at page 59 for a non-exhaustive list), a decision should be made within two working days.

The accommodation

The guidance states at page 58 that:

There are three different levels of bail accommodation as follows:

Level 1 – initial accommodation – high, multiple-occupancy accommodation, this:
- Accommodates females as well as single persons of either gender and lone parents
- Contains shared accommodation spaces used by families and individuals
- Is located in high-density urban residential areas
- Is unlikely to be suitable for FNOs who meet the exceptional criteria for accommodation provision
Level 2 – standard dispersal accommodation, mostly high multiple-occupancy accommodation, individual accommodation but often with shared common spaces, lone adult males do not share accommodation with families or lone females

Level 3 – complex bail dispersal accommodation, increased liaison with local authorities in sourcing appropriate accommodation, accommodation providers’ staff have specialist training and increased risk awareness, the authority can request specific location or specify how far the service user should be from local amenities, schools and so on, lone adult males do not share accommodation with families or lone females.

Challenging unsuitable accommodation

Schedule 10 accommodation provided to a victim that is inappropriate and unsafe in relation to their recovery needs can, in theory, be challenged via judicial review. However, given that an individual is likely to be in Schedule 10 accommodation only when they are not entitled to MSVCC accommodation, it will likely be difficult to establish their rights under the trafficking legal framework. It may be, however, that an individual is provided with Schedule 10 accommodation who is then later granted reconsideration, or is referred into the NRM. In any case, the advice of a Legal Aid public law solicitor should always be sought.

Challenging delay, refusals or terminations

Following a delay of more than two working days in deciding on a victim’s application for Schedule 10 accommodation, the advice of a public law solicitor should be sought.

There is no right of appeal of a refusal to provide Schedule 10 accommodation. The only remedy is judicial review. Additionally, public law legal advice should be sought following the termination of Schedule 10 accommodation.

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