Factsheet 12 - Section 4 and Human Rights

This Factsheet looks at situations where s4 support may be available necessary to prevent a breach of human rights.

In this Factsheet:

• Breach of European Convention of Human Rights
• Out of Time Appeals to the First-tier Tribunal (Immigration and Asylum)
• Asylum-Seeker has Submitted Fresh Representations
• Refused Asylum- Seekers with Outstanding Applications for Leave Under ECHR Article 8
• Judicial Review Proceedings
• European Court proceedings
• Other Human Rights Situations

Section 4 Support and Human Rights   

Reg 3(2)(e) states that ‘the provision of accommodation is necessary for the purpose of avoiding a breach of a person’s Convention rights’ and it is this criteria which is examined here (for other criteria see Factsheet 2). Immigration and Asylum Act 1999, section 4(2)

Breach of European Convention of Human Rights

Support must be provided if otherwise a person’s rights under the European Convention of Human Rights (ECHR) would be breached. Article 3 states ‘no one shall be subjected to torture or to inhuman or degrading treatment or punishment’. The courts have found that denying support to asylum-seekers whose claims are outstanding, given that they are not allowed to work and would be faced with street homelessness, constitutes ‘inhuman and degrading treatment’, in breach of Article 3. This principle applies to refused asylum-seekers.   

Fears about how they will be treated in their home country are not relevant for s4 purposes.  This is because such fears would have been addressed when their asylum claim was considered and refused, unless such fears have been raised in fresh representations (see further below).

The following are examples of circumstances where the Home Office (HO) or the First-tier Tribunal (Asylum Support) (AST) has provided support on human rights grounds.  This is for guidance only.   The HO and AST judges often have different approaches to when it would be unreasonable to expect an applicant to leave the UK, and hence many appeals are successful.  AST decisions are not binding on other judges, although decisions of the Principal Judge are seen as persuasive.  A selection of AST decisions can be seen on the AST database.

If you have any doubts about eligibility, call ASAP’s advice line.

• Out of time appeals to the First-tier Tribunal (Immigration and Asylum)

  HO guidanceAsylum support, section 4(2): policy and process, version 4, p17 states that support may be provided under reg 3(2)(e) where

  they have submitted a late appeal against the rejection of their asylum or Article 3 ECHR claim and the First-tier Tribunal is considering whether to allow the appeal to proceed out of time

  If the appeal is allowed to proceed the person will then become eligible for s95 support.

• The asylum-seeker has submitted a fresh claim (referred to as ‘further submissions’ by the HO)

  A refused asylum-seeker who has exhausted their appeal rights may have new evidence or arguments to put before the HO as part of a fresh claim for asylum, or under ECHR Article 3.  Once they have submitted these further submissions to the HO, there is likely to be a delay before the HO decides if these submissions constitute a fresh claim.  During this period, the refused asylum-seeker is not eligible for s95 support, but will be entitled to s4.

  The HO accept that it would not be reasonable to expect a refused asylum-seeker to leave the UK where:-

  • They have lodged further submissions and
  • The HO has not yet decided whether to record the submissions as a fresh claim or to refuse them; and
  • The submissions ‘are not clearly abusive, manifestly unfounded or repetitious’ Immigration and Asylum Act 1999, section 4(2)

   The refused asylum-seeker will then remain on s4 support until the HO considers those further submissions.  When it does, there are 3 possible decisions to be made:-

  1. Grant status: Therefore s4 support will be discontinued, usually in 28 days.
  2. Record the further submissions as a fresh claim for asylum or under Article 3, as they meet the Immigration Rule 353 threshold of being ‘something new’, but simultaneously refuse the application, with a right of appeal to the Asylum and Immigration Tribunal:  In this scenario, your client has now switched from being a refused asylum-seeker to an asylum-seeker, and so will be entitled to s95 support. This may not happen automatically and so an application will need to be made.
  3. Refuse the further submissions with no right of appeal:  The s4 support will be discontinued, with a right of appeal. See Factsheets 5 and 6.
• Further Submissions not yet submitted

  From 8 April 2026, the process for making further submissions is set out in the Immigration Rules.Paragraphs 353AA and 353AB of the UK Immigration Rules

  In most cases, further submissions must be made in person at a Home Office  specified service centre (SSC). These are located in Liverpool, Belfast, Cardiff, and Glasgow.

  An appointment must be booked by phone through the Further Submissions Unit. Submit new evidence to support your asylum claim - GOV.UK.

  Some people cannot travel to a service centre. This may be because of:

  • serious illness
  • disability
  • other exceptional and compelling reasons

  In these cases, it may be possible to ask the Home Office to accept submissions by email, post, or local arrangement. Further submissions.

  There have been reports of difficulty getting through to the booking phone line.

  Where delays are not the fault of the applicant, this can be relevant when assessing eligibility for Section 4 support.

  Those who can demonstrate that they have further submissions that are not hopeless, abusive, and merely repetitious or manifestly unfound, may be eligible for s4 support before their further submissions have been lodged, if the delay is outside of their control.

  In these situations, it may be argued that the person has done all they reasonably can. It may therefore be unreasonable to expect them to leave the UK to avoid destitution.

  However, the approach of the judges varies and some may refuse support unless the submissions have already been submitted. 

  If the applicant is particular vulnerable, that may strengthen the case for support.

• Refused Asylum-seekers with outstanding applications for Leave to Remain under ECHR Article 8

  Individuals who have never claimed asylum but instead apply for leave to remain on Article 8 grounds (family and private life) are not eligible for asylum support under s95.

  However, destitute refused asylum-seekers who have an outstanding Article 8 claim may be eligible for s4 support under regulation 3(2)(e). It would not be reasonable to expect such people to leave the UK until their Article 8 claim has been determined.   In August 2015 the Principal Judge in AS/14/11/32141 found that Article 8 applicants are eligible for s4 support.  This judgment is persuasive on other judges and the HO, and should be followed. 

  However, Article 8 applicants should seek immigration advice before applying for s4 support.

  They will need to prove their destitution to be eligible and in doing so they should not put forward any information to the HO which could contradict or weaken their Article 8 application.  ASAP can advise further and assist with any asylum support appeal.

• Statelessness Applicants

  Since 2013 it has been possible to apply for leave to remain in the UK as a stateless person on a specified and detailed HO form.  Once the application is lodged and whilst it is still outstanding, it is possible to apply for s4 support under reg 3(2)(e).  However, this means that only stateless applicants who are also refused asylum-seekers can benefit. This is because only refused asylum-seekers can apply for s4 support.

• Potential Judicial Review Proceedings following the refusal of Further Submissions

  Further submissions are usually refused, as the HO decides they do not meet the threshold of being a fresh claim. Therefore the applicant does not have a right of appeal to the First-tier Tribunal (Immigration and Asylum) and the only remedy is to challenge the decision by way of judicial review, on the basis that it is unlawful.

  The AST is likely to grant support in the following circumstances:-

  • The appellant has started the judicial review proceedings and is waiting for a judge to decide whether to grant permission for the application to proceed. 
  • The appellant has sent a pre-action protocol (PAP) letter to the HO threatening judicial review proceedings but is waiting for the prescribed period to end before issuing court proceedings.  The Protocol is a set of rules which should be followed by claimants before they start judicial review proceedings against a government body.  They must send a ‘pre-action letter’ setting out their arguments and requesting a response within a deadline (usually 14 days).  AST judges generally accept that it would not be reasonable to expect the appellant to leave the UK while they are waiting for a response to this letter.  There can then be further (reasonable) delays after a negative HO response to the PAP letter, as the appellant waits to be granted legal aid, without which their solicitor cannot issue the judicial review.  Again this is something some the AST judges will take into account.
• European Court of Human Rights proceedings

  Refused asylum-seekers who have exhausted all available appeals and remedies in the UK sometimes make applications to the European Court of Human Rights (ECtHR).  In decision  AS/11/06/26857 the Principal Judge set out guidance on when such applicants will be eligible for support. 

• Other Possible Human Rights Situations

  There may be other situations where it is not currently reasonable, or possible, to leave the UK.  Therefore, there may potentially be a breach of human rights if support is refused or withdrawn.  For example the applicant needs to remain in the UK temporarily because of civil or criminal court proceedings or care proceedings.  Or they suffer from serious mental health problems, such that the AST judge considers it would be a breach of reg 3(2)(e) for their support to be discontinued whilst they are in the UK.