8 February 2018
8 February 2018
This note explores eligibility for s4 support for those with an outstanding Article 8 application.
It is well established that destitute refused asylum seekers who have outstanding further submissions relating to asylum or Article 3 ECHR (a ‘fresh claim’) are eligible for s4 support.
They come within reg 3(2)(e) of the Immigration and Asylum (Provision of Accommodation to Failed Asylum Seekers) Regulations 2005:- the provision of accommodation is necessary for the purpose of avoiding a breachof a person’s Convention rights, within the meaning of the Human Rights Act 1998
It is also the case that those who have outstanding Article 8 applications are eligible under reg 3(2)(e).
This was established via the Mulumba case (see below) and the Asylum Support Tribunal (AST) decision of Principal Judge Storey’s decision of 10/8/15.
29. In my judgment, there is no legal basis for the Secretary of State’s argument that only a protectionbased application entitles a failed asylum seeker to Section 4 support under Regulation 3(2)(e). This is not what the regulations state and it is not what the Secretary of State’s own policy promotes. In the circumstances, I find that any application for leave to remain may entitle the applicant to Regulation 3(2)(e) support where the provision of accommodation is necessary for the purpose of avoiding a breach of a person’s Convention rights, subject to the requirement that the application is not obviously hopeless or abusive. https://assets.publishing.service.gov.uk/media/584e94f740f0b60e4a000087/AM_v_SOS_A S_14_11_32141.pdf
Notwithstanding this decision, the Home Office on occasions still refuses these s4 applications, simply because the outstanding immigration application is not a ‘protection claim’.
However, as confirmed by PJ Storey, there is nothing in the regulation to suggest that the further submissions have to relate to asylum or Article 3 (together known as ‘protection’ claims).
The logic of granting s4 support to a destitute person with an outstanding application (of any sort) is asfollows:
In 2014 ASAP intervened in the Article 8 s4 case of R (Mulumba) and First-tier Tribunal (Asylum Support) and the Secretary of State for the Home Department.
The case settled, as the Home Office conceded that thosewith outstanding Article 8 applications may also be eligible for s4 support. Home Office policy on reg 3(2)(e) is contained in the Asylum support, section 4 policy and process instruction P. 17-18.https://assets.publishing.service.gov.uk/media/68cc1869b6d7ea468dbea686/Section+4+policy+and+process+guidance+_1___1_.pdf
Notwithstanding the Mulumba settlement and PJ Storey’s decision, this has not been amended to state specifically that Article 8 applicants are eligible
No. It is important for your client to seek immigration advice before applying for s 4 support on this basis. It is essential that none of the information in the s4application contradicts or could be construed to contradict anything in your client’s outstanding Article8 application. For example, their Article 8 cases might be based on being in a stablecommitted couple. While your client’s partner’s inability to accommodate or support them financially is not necessarily incompatible with having a strong subsisting relationship, applying for s4 support could damage that claim. It is imperative that they seek immigration advice before providing destitution evidence from their partner in support of their s4 application.
One example would be fathers who no longer live with their children (or withthe children’s mother) but have maintained strong relationships with their child or children, which forms the basis of their Article 8 claim. Whilst it is not the role of the AST judge to consider the substantive merit of an outstanding immigration application, they may take into account whether it is repetitious or hopeless. Therefore, just as with further submissions on protection grounds, support will notbe awarded where it appears the Article 8 case has little or no merit. Applying for s 4 support may trigger a decision on any outstanding application, especially if the facts are weak.
This is more tricky, and ASAP’s advice should be sought. If the person was given a right of appeal, and they are waiting for that appeal to be heard, then they are in a strong position, as it would not be reasonable for them to abandon their appeal, which would happen ifthey left the UK. If, as is more likely, they were not given a right of appeal, then theirimmigration advisor may be considering challenging the decision by way of judicial review. If the decision is to be judicially reviewed, then it is worth applying for s4 support (assuming the immigration advisor agrees). In all cases check with the immigration advisor.
Support under section 4(2) Immigration and Asylum Act 1999 (IAA 1999) is only forrefused asylum seekers. They may be able to obtain Schedule 10 support.