Contents:
This section looks at common housing problems that asylum seekers and refugees, and other people given leave through the asylum process, may face. It includes some references to relevant case law, and links to the relevant regulations.
What are the housing and housing benefit rights of refugees, etc?
Refugees and people with discretionary leave and humanitarian protection are all eligible for an allocation from the council, to get help if they become homeless and to claim housing benefit, without any further requirement that they are habitually resident. They can also get accommodation from housing associations. This applies equally when they have limited or indefinite leave to remain and also when they are waiting for renewal of that leave, as long as they applied before the previous leave ran out. Further information is available about relevant housing and housing benefit regulations from the Scottish Government’s practice guide on housing allocations (section 3.1 deals with eligibility).
People arriving in the UK on special resettlement programmes may have different rights:
- The Gateway Protection Programme brings refugees from various parts of the world to the UK with refugee status and indefinite leave to remain and they are eligible for housing and benefits in Scotland.
- The Syrian Resettlement Programme gives selected people from Syria humanitarian protection for five years and they are also eligible for housing and benefits.
- The special programme for Afghan interpreters and support staff (announced in 2013) brings people with five years limited leave to remain, who may then apply to settle. They are eligible for housing benefit provided they are habitually resident but not for homelessness assistance or a housing allocation in Scotland. However, when a local authority signs up to the programme it agrees to provide accommodation initially and then assist in finding permanent housing, so entitlement to housing and homelessness help may only be an issue for people if they move or become homeless.
- ‘Dubs children’, unaccompanied children stranded in Europe and their dependants, get leave via section 67 of the Immigration Act 2016 from 6th July 2018.
Special arrangements for accommodating asylum seekers are described briefly on the page for refugees and asylum seekers and asylum seeker support is covered on the page on destitution.
What about their family members?
The husband/wife/civil partner of a refugee and their children are covered by the refugee status as well, even if they have just arrived or not yet sorted out their status, as long as the relationship was in existence when the refugee left their home to seek asylum. So they are all eligible for housing and homelessness services and for housing benefit, even if their documentation does not say that they have refugee status (R (Jimaali) v Haringey LBC, QBD (AC) Legal Action, November 2002, p24).
The family members of people with other types of status are usually included in any asylum application and get leave in line with the applicant. If they arrive later, they must apply to stay through the asylum system, and will be asylum seekers until they get leave. Their details must be included in any applications for housing benefit but only the person with leave to remain can apply for the benefit and s/he will be awarded benefit as a single person.
If the family members have nowhere to live, they can apply to the Home Office for accommodation as asylum seekers and can include the person with leave in the application, but it is likely that the family will be offered 'dispersed' accommodation on a no-choice basis anywhere in the UK. Asylum support will be offered as a top-up to any income from the person with leave.
Discrimination against refugees and others with leave
Refugees and others with limited leave to remain often report discrimination against them by housing providers who refuse to deal with their applications until they have indefinite leave to remain, or refuse to house them while they are waiting for a renewal application to be approved. This may be unlawful discrimination and should be challenged. In the private rented sector, this may be a particular problem in areas where 'right to rent' checks now have to be carried out (although so far this applies only in England).
Benefit problems
If an application for asylum or (or discretionary leave etc) is finally determined following an appeal to an immigration tribunal the right to benefit only starts from the date the leave is actually granted – not from the date of the successful appeal even though the decision of the immigration tribunal means that the grant of leave from the Home Office will inevitably follow (see this case).
Refugees and others with limited leave to remain often face delays whilst their claim for UC/HB/CTR is processed. Their claim is dependent on them (or if they have a partner both of them) having applied for or being allocated a national insurance number. For more information about problems applying for national insurance numbers see the law on housing benefit.
Local connection
In addition to the usual local connections provided by residence, work or family, a person also has a residential local connection with a local authority if s/he was, at any time, provided with asylum support accommodation in that district.
However, this local connection does not apply to any asylum accommodation provided in Scotland because the Scottish legislation assumes that the person did not freely choose to live there themselves. This is explained further in the Code of Guidance on Homelessness (see paragraph 8.14).
No type of local connection is more or less important than any other. For example, if the applicant applies in an area where s/he has a local connection through work or previous residence with a friend, that authority has to deal with the application, even if the applicant has apparently stronger local connections in other areas.
If the application is made in an area where the applicant has no local connection, but s/he does have a connection in two or more other areas, then their wishes should be taken into account (i.e. whether they have a preference) before the referral is made.
So, if a new refugee has no other type of local connection (work, residence in some other form of accommodation, family) then s/he can apply to the Scottish local authority of their choice.
If the applicant was provided with asylum support accommodation in Scotland, and applies as homeless to an English or Welsh authority, and the applicant has no local connection in England, Wales or Scotland, that local authority will have a discretion to provide temporary accommodation for a period to give the applicant a reasonable opportunity to find accommodation (presumably including the option of applying in Scotland).
Problems with asylum support accommodation
A person who has claimed asylum (at a port or airport or in the UK according to the rules on where and how asylum can be claimed) becomes an 'asylum seeker' and remains one until his/her asylum application is finally determined (all appeals resolved). For a new asylum claim, if the applicant says that they have no accommodation and/or support, this will be provided, initially to assess the need (this is called Section 98 support), and then until the claim ends (called Section 95 support). Section 95 support includes accommodation, if needed, on a no-choice basis, provided by contractors to the Home Office and money (at significantly below UK benefit levels) paid via local post offices on a card.
Accommodation for asylum seekers is offered on a no choice basis and supplied by contractors to the Home Office, mostly in areas of lower housing demand. Exceptional circumstances justifying a request for accommodation in a specific area are described in Home Office guidance. Asylum seekers offered tenancies (for example of flats and houses, as opposed to rooms in hostels etc which are more likely to be licences) have restricted rights. Landlords can evict them once the tenancy has ended without getting a court order. In practice, this option is rarely used. In other respects, asylum support accommodation is subject to the same law and regulation in relation to overcrowding, health and safety, houses in multiple occupation etc as any other accommodation. There is more detail on asylum support on the page on advising destitute migrants.
The Asylum Support Appeals Project has a comprehensive set of useful factsheets on most aspects of the asylum support system. The ASH Project helps asylum seekers report repairs.
Further information
The SRC's Practitioners' Guide to Integrating Asylum Seekers and Refugees, published in 2016, is a comprehensive guide to all aspects of housing refugees in Scotland, including coverage of the local connection issue.
Shelter Scotland publish an advice guide on housing former asylum seekers.
