The government has published the Illegal Migration Act 2023 (Amendment) Regulations 2024 enabling the Home Office to process and grant leave to remain to people whose claims were paused from last year. However, these changes will inevitably result in increased homelessness. We explain the policy background and what this will mean for councils supporting people with no recourse to public funds who are exiting asylum accommodation.
Background
The Illegal Migration Act 2023 placed a duty on the Home Secretary to make the arrangements for removal of anyone who arrived in the UK without permission to enter such as those who had arrived after crossing the Channel by irregular means. Although these powers had not yet been brought into force, they were intended to be applied retrospectively to anyone arriving on or after 20 July 2023 and so claims from people arriving from this date could not yet be processed.
The act also originally outlined that where the duty to remove applied, individuals would be considered permanently inadmissible to the asylum system and unable to access various forms of leave to remain, including refugee status and citizenship, in the UK. This ban on accessing leave to remain applied to those who had arrived by irregular means from 7 March 2023. Those claims could not be processed as the duty to remove had not yet been implemented. Additionally, provisions barring access to leave to remain would have made it unlawful for the Home Office to grant permission to stay to anyone arriving through irregular means in this period.
What has changed?
The regulations published by the government enable the Home Office to process all asylum claims and grant leave to remain where eligible, as the amendments have removed the retrospective application of the duty to remove and the prohibition against granting leave to remain. This means that two cohorts of asylum claims – the Illegal Migration Bill cohort (those who arrived between 7 March 2023 and 20 July 2023) and the Illegal Migration Act cohort (those who arrived after 20 July 2023) can now be processed under existing policy legislated through the Nationality and Borders Act 2022.
The government has stated that this change will enable the Home Office to increase asylum decision-making and that they are considering a fast-track process for some groups. It is therefore likely that there will be a rise in evictions from asylum accommodation, not only for people who have been granted leave to remain, but also from those who have been refused asylum.
More decisions mean more negative discontinuations
People seeking asylum have no recourse to public funds but can access section 95 Home Office asylum support while their claim is ongoing. Eligibility for section 95 support ceases when a person becomes appeal rights exhausted (ARE), unless they have dependent children under the age of 18. ARE refers to when a person’s asylum claim has been refused, subsequent appeals have been unsuccessful, and they have no further appeal rights. While some ARE asylum seekers may be able to access section 4 support from the Home Office if they can demonstrate there is a barrier to their return to their country of origin, most will not qualify for this support. Additionally, a person with an inadmissibility only qualify for section 4 support, but this is dependent on meeting the narrow criteria for this support.
When asylum support is ended following a negative asylum decision, the Home Office provides a notice period of 21 days before support is terminated, and the person must leave their accommodation. Both ARE asylum seekers and inadmissible asylum seekers are treated as ‘negative discontinuations’ by the Home Office meaning they are given just 21 days’ notice of their support ending.
Impacts and risks for councils
The increase in decision making will inevitably lead to an increase in homelessness from people exiting asylum accommodation as shown by the increase in decision-making from 2023, which contributed to a 634% increase in requests for local authority homelessness assistance within this cohort in the past two years. For those who are granted leave to remain, they have access to public funds and so are eligible for homelessness assistance, although will only qualify for limited assistance unless they have a priority need.
However, for those who are refused asylum, councils have limited time to mitigate the risk of homelessness due to the shorter grace period. This places additional pressure on housing and homelessness services’ ability to respond. Moreover, ARE asylum seekers have no recourse to public funds, meaning there is no statutory duty to provide homelessness assistance them. Read more about local authority housing assistance and what happens when asylum support ends.
An increase in negative decisions should only create a risk of homelessness for adults without dependent children under 18 as those with children under the age of 18 are currently not evicted from asylum accommodation where they have exhausted their appeal rights. Adult social care services could find themselves supporting more people leaving asylum accommodation. Although the local authority will already be providing accommodation and financial support to some asylum seekers with care and support needs, and this duty remains to people with care needs despite eligibility for asylum support, some people with social care needs may only be identified after they have exited Home Office support. Consequently, there may be a greater demand for needs assessments as people develop care needs following periods of homelessness. Although, the AASC contract requires accommodation providers to refer to the local authority if they become aware of an individual having any potential care and support needs, some of these cases may still go unidentified.
While Home Office accommodation providers are contractually obliged to share data with local authorities on upcoming evictions of people granted status, there is no requirement to notify councils of evictions of those who have been refused asylum. Councils may be unaware and unable to implement informed responses to pending homelessness among refused asylum seekers leaving Home Office accommodation. Therefore, they cannot consistently provide advice to prevent street homelessness or identify social care duties for these individuals.
There will be financial impacts on councils as they will be required to respond where there are duties to people with no recourse to public funds. Councils are already incurring costs by providing accommodation and financial support to people seeking asylum, and this is likely to increase again in the coming months as the Home Office processes more asylum claims. Data collected from 85 local authorities using NRPF Connect shows that in the past year, councils have already spent £81m supporting people with no recourse to public funds who have care and support needs. More specifically, our data shows that 25% (246) of adults with care needs who were receiving support from their council under the Care Act 2014 or Social Work (Scotland) Act 1968 were seeking asylum or were ARE asylum seekers. The annual cost of providing accommodation and financial support to people who have sought asylum and who have care and support needs amounted to £24.5 million collectively for these 85 councils.
While councils will be cognisant that any increase in homelessness places additional pressure on local authority services to assess and advise individuals, there may also be wider impacts on health and wellbeing services, public health, and the voluntary and community sector. Immigration tribunals will also experience a rise in appeals from people appealing a negative asylum decision and this will add to already long waiting lists for hearings, as well as increase the demand for legal services, placing further pressure on the already scarce availability of immigration advice provision. Councils will have concerns not only about the pressure created from the number of individuals exiting asylum accommodation but also the rate of evictions and whether these will be spread at a rate manageable for their area and its services.
What actions councils must take to mitigate risks
Councils will need to consider how both homelessness services and adult social care services can best respond to an increase in demand for services from people exiting asylum support. Frontline council services will need to be trained and equipped to respond appropriately when adults who have left asylum support present as homeless or in need of support. Local housing authorities must be able to identify any potential care needs and refer these cases to adult social care teams for relevant assessments, as they are most likely to encounter individuals from this group.
Local authorities could benefit from engaging with regional strategic migration partnerships, the Home Office, contracted providers, and the Local Government Association to address concerns about responding to future increases in evictions. It is essential that adult social care managers are engaged with local authority strategic asylum and migration leads to ensure that they are receiving updates regarding the asylum evictions process, are involved in any discussions, and are able to contribute to or provide feedback where necessary. As the Home Office will be providing on-site support at asylum hotel sites, good working relationships between these officers and councils could help mitigate some risks. Partnership working amongst all relevant stakeholders over operations at a local level would also be beneficial.
Monitoring the availability for advice and support, including legal advice, in their area, and supporting the local infrastructure where gaps are found, should also be an action for councils. When a person is refused asylum, they will have limited time to lodge an appeal so will need to access legal advice as soon as possible - councils may need to consider how people in asylum accommodation can be assisted to access legal advice if they don't already have a representative. The provision of advice around the appeals process will be crucial in preventing people from becoming destitute as a result of not exercising their appeal rights where they have received an initial refusal of their claim from the Home Office.
Councils must continue to prepare and develop their responses to supporting migrants living with the no recourse to public funds condition. This includes subscribing to and utilising the benefits of NRPF Connect, accessing our training, and familiarising themselves with our guidance materials on supporting adults with care needs. Councils using NRPF Connect must ensure that people with no recourse to public funds, including people with current or refused asylum claims, who are supported by adult social care are added to the system, and that the financial information is kept up to date.