Transition at 18
Does a local authority have a duty to house a former unaccompanied asylum seeking child who would otherwise be homeless or threatened with homelessness?
In many circumstances there will be a duty on the housing authority under homelessness legislation to provide accommodation. This is different from powers to allocate council or housing association accommodation, which is not the subject of this note.
Accommodation may also be provided to those turning 18 by the social services in certain circumstances [1].
Prior to reaching 18 an unaccompanied asylum seeking child (UASC) will in most cases have been 'looked after' [2] by a children's services department.
A duty may arise where the former UASC has applied to a housing authority and the housing authority has reason to believe that the applicant 'may be' homeless or threatened with homelessness. Whether a duty exists will also depend on their immigration status on turning 18.
When devising the 'pathway plan' with the UASC, Children's Services must consider what the young person's housing needs will be once they turn 18. Where no further duty exists on the Children's Services to house the young person after reaching 18, help could be given in assisting the young person to apply to the local housing authority if it appears that s/he may otherwise be homeless or threatened with homelessness at that time [3].
Where an application for housing assistance is made, the housing authority must 'make such enquiries as are necessary to satisfy themselves' whether or not the person is eligible, homeless, in priority need, and intentionally homeless. The authority may also enquire about whether the applicant has any local connection. Whether a full duty to house is owed will depend on the outcome of their enquiries.
Temporary Accommodation while the decision is pending
A person who applies as homeless to a local authority may be entitled to temporary accommodation while the authority considers and looks into her/his case. By virtue of section 188(1) of the Housing Act 1996, "If a local authority have reason to believe that an applicant may be homeless, eligible for assistance and have a priority need they shall secure that accommodation is available for his occupation pending a decision as to the duty owed".
For the reasons set out below former UASC will in many circumstances meet the section 188(1) criteria of homelessness, eligibility and priority need and must therefore be temporarily accommodated pending a decision on whether there is a full housing duty. A refusal to do so may be open to legal challenge, by way of judicial review.
Eligibility
Eligibility to homelessness assistance is restricted on the ground of immigration status [4] However, most UASC who have been refused asylum will have been granted a period of limited leave. If this leave was granted after 1 April 2003, it is almost always Discretionary Leave . If granted before 1 April 2003, it is Exceptional Leave to Remain.
Those with Exceptional Leave to Remain (which includes Discretionary Leave) are accorded eligibility to homelessness assistance while that leave is still current provided that the conditions attached to the grant of the leave did not exclude them from 'recourse to public funds' [5]. Grants of exceptional leave/discretionary leave to unaccompanied minors do not contain this exclusion. This can be verified by looking at the letter sent to the child by the Home Office when the period of leave was granted and will form part of the evidence of eligibility when the application is made.
The fact that the period of exceptional/discretionary leave is due to expire or has expired would not exclude them from eligibility to homelessness assistance provided that an application has been made for an extension of that leave prior to its expiry.[6] Where such an in-time application is made, the leave to remain is automatically extended [7] An application for further leave to remain is 'in-time' if it is posted before the leave expires [8]. Therefore, an application posted on the last day of the leave to remain extends that leave to remain, even if it is not received by the Home Office until after the leave has expired.
A UASC who has not submitted an in-time application for an extension of their leave would again be a 'person subject to immigration control' [9] and would not be eligible for homelessness assistance. Likewise, where no further application or appeal arising from the grant of discretionary/exceptional leave can be made, the leave will expire and the person will become ineligible for homelessness assistance and once again 'subject to immigration control'.
A UASC who turns 18 and has a pending asylum claim or appeal will remain eligible for homelessness assistance, so long as s/he has exceptional leave to remain/discretionary leave, whether as granted originally or as extended under s 3C (see above). If that person does not have leave to remain, then s/he is not eligible. If s/he was looked after by a local authority before turning 18, s/he may be eligible for leaving care services (see [1]). If s/he is not eligible for those, s/he will remain eligible for 'Asylum Support' so long as the claim/appeal has not been finally determined.
Homelessness
After considering eligibility, the local authority should consider whether an applicant is homeless or threatened with homelessness. To be considered homeless [10] a person must have no accommodation available for their occupation in the UK or elsewhere which is reasonable for him to occupy and s/he is able to and entitled to occupy because:
(a) s/he has a legal interest (including ownership, a lease or a tenancy); or
(b) s/he has a licence; or
(c) s/he has a right to occupy under a court order; or
(d) a statute or rule of law states s/he can occupy or prevents another person from recovering possession from him/her.
A person is threatened with homelessness if it is likely that they will become homeless within 28 days.
It should be noted that the definition of 'homelessness' refers to availability of accommodation in the UK or elsewhere. In the case of a former UASC, it is very unlikely that accommodation outside the UK will affect whether the person is homeless. Any grant of discretionary/exceptional leave would normally have been because the UK Border Agency (UKBA) was satisfied that there were "inadequate reception arrangements available in their own country". [11] Given also that the person was a minor when they left their country, it is very unlikely that they will have an entitlement to occupy accommodation in their own country which it is reasonable for them to exercise.
Priority Need
Only those applicants with a priority need for accommodation fall within the local authority's duty to secure accommodation [12]. Persons who have priority need for accommodation [13] include:
- A young person (other than a relevant student) who (a) is under 21; and (b) at any time after reaching the age of sixteen, but while still under eighteen, was, but is no longer, 'looked after, accommodated or fostered'
Most former UASC will fall within this definition.
Intentional Homelessness
A person becomes intentionally homeless if they deliberately do, or fail to do, anything in consequence of which they cease to occupy accommodation which is available for them to occupy and which it would have been reasonable for them to continue to occupy (under the test above). The act or omission won't be considered as deliberate where the person was unaware of any relevant fact and acted, or failed to act, in good faith.
The housing authority might consider that an asylum applicant made himself 'intentionally homeless' by leaving his accommodation abroad. [14] Where the former UASC was granted exceptional/discretionary leave, that conclusion will rarely be available (for the reasons above). The fact that the UASC left their own country, rather than looking for accommodation in that country, is irrelevant unless there would have been accommodation available for him/her (under the definition of 'available' above).
A former UASC leaving accommodation that was available to them in one area and applying for accommodation as a homeless person in another area may be intentionally homeless, depending on the reasons for doing so. If the accommodation in the former area was no longer available to them, they may not be found to be intentionally homeless but may be refused for lack of a 'local connection' (see below).
Local Connection
[15] A person has a local connection if they meet one of four criteria:
- s/he is or was in the past usually resident in it and her/his residence is or was of her /his own choice;
- s/he is employed in it;
- s/he has family associations;
- there are special circumstances
Guidance to local authorities suggest that 'normal residence' will be established by residence of 6 months of the last 12 months. If the UASC was placed in accommodation (e.g. by a local authority) without having any choice about its whereabouts, then that placement will not of itself establish a local connection. [16] However, if accommodation was provided under Section 95 [17] (as part of a family of which the UASC was then a member), then s/he is deemed to have a local connection with the last area in which the Section 95 accomodation was provided. [18]
The criteria of 'other special circumstances' leaves open a wide range of considerations that may give rise to a local connection for a former UASC.
Homelessness: what duties are owed?
Provision of temporary accommodation whilst consideration is being given to whether a full duty exists has been discussed above. It is worth bearing in mind that such accommodation must be 'suitable'. The extent to which temporary accommodation is suitable will vary according to how long it is to be occupied for.
If the authority is satisfied that an applicant is homeless, eligible, in priority need and not intentionally homeless then a duty arises to ensure that accommodation is available to the applicant [19]- this is known as the 'full housing duty'.
Notes
[1] There is a duty on Local Authorities under s.23C(4) to give "former relevant children" assistance by contributing to expenses incurred by them in living near the places where they are or will be employed or seeking employment or living near the place where they are or will be receiving education or training. This can include paying for their accommodation. For further information see the CLC guide on Care and support for asylum seeking children.
[2] 'Looked after' is defined in the Children Act 1989 section 22(1). There is a very strong presumption that an unaccompanied asylum seeking child is to be 'looked after' under s 20, Children Act 1989. Some local authorities purport to 'assist' UASC under section 17 of the Act. Section 17 provision after 7 November 2002 does not count as 'looking after' (s22(1)(b) as amended by s116 of the Adoption and Children Act 2002). However, it may be possible to challenge a local authority who claim they are (or were) merely 'assisting' a UASC under section 17.
[3] It is often the case that there are disputes between the social services department and the housing authority as to who has the responsibility for housing former UASC as they both may have a duty. This should be the subject of a protocol between the departments within the local authority in order to minimize disruption to the young person's life.
[4] By theHousing Act 1996, s 185
[5] The Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006, Regulation 5, Class B (SI 2006/1294); see Appendix A. The same rules are applied to Wales by the Homelessness (Wales) Regs 2000 SI 2000/1079
[6] If an application for an extension of ELR/DL has been made during the currency of that leave, the leave will not expire on the date it was limited to but will be automatically extended until:
- A decision is made to grant further leave (when the new leave takes over) or
- Where a decision to refuse further leave is made, until the time for bringing an appeal from that decision expires, or
- Where an appeal is brought, that appeal is finally disposed of
If ELR/DL is extended then the same entitlements will apply as in the original grant of leave.
Where further ELR/DL is refused an appeal may be brought under s82 of the Nationality, Immigration & Asylum Act 2002 which states that: "where an immigration decision is made in respect of a person he may appeal to an adjudicator". An 'immigration decision' under s.82 (2) (d) includes: "refusal to vary a person's leave to enter or remain in the United Kingdom if the result of the refusal is that the person has no leave to enter or remain". The time limit for lodging an appeal against the immigration decision is 10 days. If no appeal has been lodged all entitlements will cease at that point.
Where an appeal against the refusal to vary leave is lodged in time, all entitlement will continue until the appeal is finally disposed of. The appeal is finally disposed of when:
- It is allowed and not challenged by the Home Office - in which case further leave will be granted and entitlements will continue on the same terms or;
- It is dismissed and either no further appeal can be brought or the time for appealing further expires.
As soon as the deemed extended leave expires (i.e. when the appeal rights are exhausted) eligibility to income support/job seekers allowance, housing benefit and social housing ends because the person then becomes a person who (again) requires leave to enter or remain in the UK but does not have it and so is excluded from entitlement to JSA/Income Support and housing benefit by virtue of s.115 of the Immigration and asylum Act 1999.
[7] Immigration Act 1971, section 3C Continuation of leave pending variation decision). The section applies if (a) a person who has limited leave to enter or remain in the United Kingdom applies to the Secretary of State for variation of the leave; (b) the application for variation is made before the leave expires, and; (c) the leave expires without the application for variation having been decided. The leave extends during any period when; (a) the application for variation is neither decided nor withdrawn; (b) an appeal under section 82(1) of the Nationality, Asylum and Immigration Act 2002 could be brought against the decision on the application for variation (ignoring any possibility of an appeal out of time with permission), or; (c) an appeal under that section against that decision is pending (within the meaning of section 104 of that Act).
[11] Asylum Policy Instructions, 'Discretionary Leave' (see under 'Criteria for granting discretionary leave/Unaccompanied Asylum Seeking Children')
[9] because the expiry of leave means s/he would no longer be accorded eligibility.
[10] Housing Act 1996, section 175
[8] The Home Office accepts this: Immigration Directorate Instructions Chapter 1, section 6 §2.1.
[12] Housing Act 1996, s.183. Article 4 of the Homelessness (Priority Need for Accommodation) (England) Order 2002 (SI 2002/2051) means that a person under 21 is in priority need if, between the ages of 16 and 18, they were "looked after, accommodated or fostered". Thisis given the same meaning as in section 24 (2) of the Children Act 1989: (a) looked after by a local authority; (b) accommodated by or on behalf of a voluntary organization;(c) accommodated in a private children's home;(d)accommodated for a consecutive period of three months: (i) by any health authority, Special Health Authority, Primary Care Trust or local education authority, or(ii) in any care home or independent hospital or in any accommodation provided by a National Health Service trust [or an NHS foundation trust]; or; (e) privately fostered.
[13] For the purposes of Part 7 (Homelessness) of the Housing Act 1996
[14] because accommodation abroad is potentially relevant: Housing Act 1996, section 175(1)
[15] A 'local connection' is defined in the Housing Act 1996, section 199.
[16] Al-Ameri v Royal Borough of Kensington & Chelsea [2004] 2 AC 159, HL
[17] Section 95 of the Immigration and Asylum Act 1999 (previously known as 'NASS Accomodation')
[18] Housing Act 1996 s 199(6). Unless the accommodation was only provided under s 98, i.e., temporary accommodation pending a decision on an address for dispersal accommodation.
[19] ibid, section 193(2)
Revised 30/01/08
