JM v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Farbey |
| Judgment Date | 04 October 2021 |
| Neutral Citation | [2021] EWHC 2514 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4563/2020 |
[2021] EWHC 2514 (Admin)
Mrs Justice Farbey
Case No: CO/4563/2020
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Chris Buttler QC and Mr Raza Halim (instructed by Duncan Lewis Solicitors) for the Claimant
Mr Alan Payne QC and Ms Saara Idelbi (instructed by Government Legal Department) for the Defendant
Hearing dates: 15, 16, 28 June 2021 and 4 October 2021
Approved Judgment
Introduction
This is my judgment following a “rolled-up” hearing in a claim for judicial review. The issue raised by the claim is whether or not asylum seekers accommodated in hotels ought to have received support for travel and communication needs as part of their overall asylum support during certain periods of the Covid-19 pandemic.
The claimant is a national of Honduras who has applied for asylum. His asylum claim has not been determined. From 1 May 2020 until 1 February 2021, he was provided with full board accommodation by way of asylum support under section 95 of the Asylum and Immigration Act 1999 (“s.95”). From 1 May 2020, he resided in what has been described to me as the Jaguar Building which is said to be a hotel. On 26 June 2020, he was moved to the Hallmark Hotel where he remained until he was moved to self-catering accommodation on 1 February 2021.
In his amended grounds of challenge, the claimant contends that:
i. In the period prior to 19 October 2020, which marked a change of policy, the defendant unlawfully failed to make any calculation of his entitlement to asylum support and unlawfully failed to pay more than £5 per week cash support; and
ii. The defendant's subsequent decision to make back payments failed to provide an adequate remedy for the failure to have made a lawful decision in the period prior to 19 October 2020.
As regards relief, the grounds seek quashing orders; declarations that the defendant's failures were unlawful; and a mandatory order for the appropriate back payment to him and to all other asylum seekers who were affected by the defendant's errors. Before me, only the claim for declarations was pursued.
By order dated 14 December 2020, Swift J directed that the question of interim relief be considered at a hearing. On 18 December 2020, before Sir Duncan Ouseley sitting as a High Court Judge, the parties indicated that they had reached agreement on the substance of interim relief. As a result, the application for interim relief was withdrawn. Agreement was reached, and the interim relief application withdrawn, on the basis of evidence on behalf of the defendant that turned out to be inaccurate (as I shall identify below). The court went on to give case management directions, designating the claim as the “lead claim on the challenge to the Defendant's asylum support arrangements for asylum seekers supported under section 95 in full board accommodation.” The court ordered a rolled-up hearing for consideration of permission to apply for judicial review and, if granted, the substantive merits of the claim.
Owing to late disclosure by the defendant, Mr Chris Buttler QC (who appeared with Mr Raza Halim on behalf of the claimant) focused his oral submissions in a way that was different from the amended grounds. He mounted what was in effect a substantive and a procedural challenge. The substantive challenge was that the defendant had breached her statutory duty to provide the claimant with (i) cash for travel and (ii) access to a telephone while he was in full board accommodation after he had been granted s.95 support. He submitted in addition that the procedure used to reach decisions about cash for travel and access to a telephone was unlawful.
I shall refer to asylum seekers like the claimant, who have been granted s.95 support but kept in full board hotel accommodation, as “FBAs.” I shall call the need for FBAs to be provided with cash for travel “the travel need” and the need to have access to a telephone “the communication need.” That latter need may also be satisfied by access to a wi-fi enabled device such as a tablet on which video or audio applications (“apps”) such as WhatsApp have been installed. In this judgment, my references to phones should be taken to include the use of apps as well as phone calls.
The claim is concerned only with the need to communicate with people other than a lawyer, a doctor or Migrant Help (an organisation funded by the defendant to provide advice and assistance to supported asylum seekers). Those three undoubtedly important categories of communicant are covered by discrete provision. My conclusions in this judgment do not cover them.
The hearing was listed for two days. At the end of the second day, I granted permission to apply for judicial review. The defendant had served significant documents on the day before the hearing which meant that (i) neither the court nor the claimant had had a proper opportunity to consider them and (ii) the defendant's skeleton argument, which was bound to deal with these important documents, became available only a few working hours before the hearing date. During the course of the hearing, Mr Alan Payne QC (who appeared with Ms Saara Idelbi on behalf of the defendant) informed the court of certain other potentially significant matters as part of the duty of candour.
Given these developments, and the court's concern to ensure that the question of remedy be fully considered as well as the merits of the claim, I adjourned the hearing part heard on directions for a further half-day hearing. I am grateful to all counsel for their helpful submissions.
Legal framework
Duty to provide support
Section 115 of the Immigration and Asylum Act 1999 (“the 1999 Act”) excludes asylum seekers and their dependents from entitlement to most social security benefits. Asylum seekers are also ordinarily prohibited from working while they are waiting for a decision on their claim (they may apply under para 360 of the Immigration Rules for permission to work if they have been waiting for 12 months or more for an initial decision from the defendant). Instead, Part VI of the 1999 Act prescribes a scheme of support. The overall framework of Part VI is accompanied by detailed provisions of secondary legislation: the Asylum Support Regulations 2000 (“the Regulations”).
Under s.95(1) of the 1999 Act, the Secretary of State may provide or arrange for the provision of support to asylum seekers who appear to the Secretary of State to be destitute or likely to become destitute within a prescribed period. The Regulations prescribe a period of 14 days (regulation 7).
A destitute person is defined by s.95(3) as a person who:
“(a) … does not have adequate accommodation or any means of obtaining it (whether or not his other essential living needs are met); or
(b) … has adequate accommodation or the means of obtaining it, but cannot meet his other essential living needs.”
By virtue of s.96(1), and insofar as relevant to this claim, support may be provided under s.95 in the following ways:
“(a) by providing accommodation appearing to the Secretary of State to be adequate for the needs of the supported person and his dependants (if any);”
(b) by providing what appear to the Secretary of State to be essential living needs of the supported person and his dependants (if any);…”
Asylum support therefore has two key elements: accommodation and “essential living needs.” The present claim concerns the concept of essential living needs.
Although s.95 is expressed as a power to provide support and s.96 as a power to provide accommodation and essential living needs, it is not in dispute that the powers should be treated as duties on account of the provisions of the Reception Directive. In R (Refugee Action) v Secretary of State for the Home Department [2014] EWHC 1033 (Admin), para 13, Popplewell J (as he then was) observed:
“When originally enacted, s.95 of the 1999 Act gave the Defendant a power to provide support to destitute asylum seekers, but imposed no duty to do so, although s.122 imposed a duty to provide support where a destitute asylum seeker's household included a child who did not have adequate accommodation or the means of meeting his essential living needs. However, following Council Directive 2003/9/EC which laid down the minimum standards for the reception of asylum seekers (“the Reception Directive”), the UK came under an obligation to provide a minimum level of support to all asylum seekers and their dependant children. It gave effect to this obligation in part by converting the power under s.95 into a duty, by Regulation 5 of the Asylum Seekers (Reception Conditions) Regulations 2005…”
The Reception Directive has been recast since Popplewell J applied it in the Refugee Action case: see Directive 2013/33/EU laying down standards for the reception of applicants for international protection, 26 June 2013 (hereafter “the Directive”). The recast provisions form part of the Common European Asylum System but, by virtue of s.5 of the European Union (Withdrawal) Act 2018, they represented the position under English law at all times that are material to this claim.
Temporary support
When providing accommodation under s.95, the Secretary of State must have regard to the fact that the accommodation is to be temporary pending the determination of the asylum seeker's claim for asylum (s.97(1)). However, s.98(1) makes separate provision for temporary asylum support which may be provided “only until the Secretary of State is able to determine whether support may be provided under section 95” (s.98(2)). Parliament has therefore delineated temporary support as something different from ongoing s.95 support. The Secretary of State has no power to...
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