Getting to the UK and applying for the right to stay is only the start of the battle, writes trainee housing solicitor John Murphy.
Newcomers to the UK, whether they have immigration status or not, face formidable obstacles in accessing services such as housing or social security.
This is a look at some common scenarios and how foreign nationals and their advisers deal with them. They are based on real client cases.
Scenario one: the single male refugee
Soon after getting refugee status, he will receive a letter telling him his National Asylum Support Service support is about to stop. He can try to rent in the private sector but he is unlikely to have a deposit. He can present at his local authority’s homeless persons unit up to 28 days before his NASS accommodation ends, as he is deemed to be threatened with homelessness.
Applications for homelessness assistance are governed by the Housing Act 1996 Part VII. The officer has to assess whether the applicant fulfils five criteria:
- they are homeless
- not intentionally
- in priority need
- have a local connection
After eligibility, the main area of contention is priority need. Pregnant women and any household with children automatically meet this requirement, but that doesn’t help our applicant. He has to show that he has one or more characteristic that renders him vulnerable. The test for vulnerability is set out in Hotak v London Borough of Southwark  UKSC 30. It is that he is more vulnerable than the ordinary person made homeless – as distinct from the ordinary homeless person.
It is common even for someone with serious health problems or disabilities to fail this test. Our young man may have fled persecution in his home country and suffer from PTSD as a result. He will nevertheless be deemed to be not in priority need.
In the first instance he may ask the local authority to review the decision. He will have a chance to present evidence of his vulnerability and make representations. His advisers might gather compelling evidence including expert psychiatrist’s reports and detailed witness statements.
Refugees are often mystified then traumatised at having to persuade the authorities that their suffering is genuine – again. If the review decision is negative, there is the option of a statutory appeal to the county court. However it is rare for a court to change the decision of a review officer. The next best outcome that the case is sent back to the local authority for a new review.
While this process goes on the applicant’s NASS support will end, then become a memory. Local authorities have a power to provide interim accommodation pending a decision, if there is reason to believe that the applicant is in homeless, eligible and in priority need. If they choose not to exercise this power this may only be challenged by judicial review. Meanwhile the applicant is left to sofa-surf or survive on the streets.
Say our applicant gets a positive decision. His prize is that the local authority accepts a duty to find him a home either from his own or another authority’s social housing stock, or with a housing association, or in the private rented sector. It will provide a temporary home while it goes about that, usually in a hostel or B&B.
In fact applicants may spend years in temporary homes while negotiating the authority’s housing allocation process, although this is often preferable to being made an offer of a permanent home. The bar for what is suitable in terms of location, size, layout, state of repair, even cleanliness, is extremely low. The local authority need only make one offer to fulfil its accepted duty. If our refugee refuses it, the duty ends.
Housing lawyers round off their file closing letters with one piece of advice to their clients: do not refuse an offer of a home without taking legal advice. Requesting reviews of suitability of allocated accommodation is a subject all its own. But it is governed by the very same process as reviewing the initial homeless decision.
Scenario two: the overstayer
Another common scenario is a woman who has overstayed a visa in the past but who has gone on to have a family in the UK. If the relationship breaks down, she and her children can find themselves facing eviction.
Those with no status or with “no recourse” conditions on their leave may not access the social security system or housing assistance. What support is available to these groups is governed by section 17 of the Children Act 1989. This places a duty on children’s services to safeguard the welfare of children in need in their area and their carers.
A child facing homelessness is deemed to be in need.
But before they are obliged to offer assistance, children’s services must also be satisfied that the overstayer has a human rights application pending which is not hopeless or frivolous, following Birmingham City Council v Clue  EWCA Civ 460.
So our overstayer approaches children’s services in the expectation of getting some help. The government’s guidance Working together to safeguard children sets out how children’s services must assess her children’s needs. As long as they follow the guidance in making the assessment, they may offer whatever they deem suitable.
The local authority resists fulfilling this duty. They delay the assessment by passing the request around internally. They house the family at a distance from the children’s schools – despite the government’s Home to school travel and transport guidance requiring them not to do this.
In our overstayer’s case the local authority agrees to pay subsistence at the rates set out in sections 4 and 95 of the Immigration Act 1999, following the court’s decision in Mensah v Salford City Council  EWHC 3537 (Admin). However when she goes to collect this, they give her a food bank voucher and an appointment the following day at the food bank.
The only way of challenging these kinds of failures is by judicial review. But even when threatened with action, children’s services and their legal teams are slow to respond. They know that this is a cumbersome and potentially expensive process and that there is no guarantee a court will offer any remedy at the end of it.
Even if a judicial review is granted and the court orders the local authority to provide housing and financial support to the family, it might move them to another part of the country. This may be successfully challenged following Nzolameso v City of Westminster  UKSC 22.
Scenario three: the Zambrano carer
In the case of a third-country national accompanying a British child returning to the UK, children’s services might arrange accommodation in a single B&B room with no cooking facilities and subsistence of £20.70 per week for the household.
The figure chosen is revealing. It is the rate of child benefit for a single child. Children’s services feel under no duty to provide for the carer, despite section 17 of the Children Act 1989 being explicit that any offer of support to a child may be extended to family members if it safeguards the child.
Children’s services produce an assessment which fails to take account of the child’s needs at all: she is never interviewed, no enquiries are made of her school, no account of her material or emotional needs is made. The assessment focuses aggressively on the carer and on her immigration status in the UK, despite the carer fitting the Zambrano criteria.
As in the overstayer’s case, the only way to challenge the unlawful assessment and inadequate support is by judicial review.
All newcomers to the UK find themselves at the back of a queue for limited resources, which is something only electorates and politicians can change. But making local authorities more accountable is one way of starting to shift policy.
Those who rely on the Children Act 1989 for support have only judicial review as an effective remedy. There is a Children Act 1989 complaints procedure but it seldom results in a practical solution for the complainant. The Housing Act 1996 procedure described above may be imperfect, but a similar statutory recourse to lower courts for children in need would draw focus to a problem that is currently neglected.