MK and Another v The Secretary of State for the Home Department Refugee Action (Intervener)
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE FOSKETT |
| Judgment Date | 10 July 2012 |
| Neutral Citation | [2012] EWHC 1896 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 10 July 2012 |
| Docket Number | Case No: CO/12131/2010 & CO/1164/2010 |
[2012] EWHC 1896 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
MANCHESTER DISTRICT REGISTRY
Manchester Civil Justice Centre
The Honourable Mr Justice Foskett
Case No: CO/12131/2010 & CO/1164/2010
and
Martin Westgate QC and Ranjiv Khubber (instructed by Platt Halpern) for the Claimants
Samantha Broadfoot and Tom Poole (instructed by The Treasury Solicitor) for the Defendant
Mark Henderson and Alison Pickup ( instructed by the Migrant's Law Project) for the Intervener made written submissions
Hearing dates: 10–11 May 2012
Introduction
This case brings into focus again the tension that exists between, on the one hand, the obligation of the State to provide temporary accommodation and assistance for those seeking asylum who are or risk being destitute whilst their renewed or fresh application for asylum is considered and, on the other, the desire of the government not to incur the considerable public expense in doing so in unmeritorious cases—which many (though not all) are ultimately found to be. In 2009/2010 the cost of funding the kind of support in issue in this case was £102 million out of a total cost of providing asylum support in the same year of approximately £514 million.
The issue arises in the context of the cases of two men, one of whom is single and the other of whom is married with children but who had not brought his family with him to the UK, who failed initially in their claims for asylum, but who then submitted new representations.
It follows that it is not a case that engages directly concerns about the interests of children or other dependants for whom the asylum seeker has responsibility and any statutory provisions designed to protect their interests (see, for example, section 94(5) of the Immigration and Asylum Act 1999—'the 1999 Act'). I should make it clear that merely because the case does not engage those issues does not mean that they are not potentially highly important: it means simply that they do not arise directly for consideration in this case and, as I shall indicate below, I propose to focus so far as possible solely on those matters that go directly to resolving the issues that arise in the present case.
Refugee Action (an independent national charity, largely funded by the UKBA, that provides advice and support to asylum seekers and refugees in the UK and which is a member of the National Asylum Stakeholder Operational Forum—'NASOF') has been permitted, on the direction of Hickinbottom J, to intervene in the proceedings and make submissions in writing. Each Claimant had, at times, received help from Refugee Action, but their present cases are, of course, advanced now by their own advisers. Refugee Action's submissions (drafted by Mr Mark Henderson and Ms Alison Pickup) deal with somewhat broader issues than those arising directly in the context of this case. Whilst the submissions are very helpful in informing the debate on the issue that lies at the heart of this case, as I have already indicated, I am proposing to confine my decision so far as possible to the way that issue is to be resolved and to that alone.
The general issue and related topics have been addressed by the courts on previous occasions during the last decade or so (see paragraph 62 et seq below). It is, perhaps, important to emphasise at the outset that the court's role is simply to review the legality of the current policy by reference to the well-established public law parameters: it is not to review or comment on the policy implications as such and certainly not upon its political implications. I venture to draw attention to what Lord Hope of Craighead said in the case of Limbuela v Secretary of State for the Home Department (to which I will be referring in more detail later at paragraphs 93–100) when he said this:
"13. The question whether, and if so in what circumstances, support should be given at the expense of the state to asylum-seekers is, of course, an intensely political issue. No one can be in any doubt about the scale of the problem caused by the huge rise in the numbers of asylum-seekers that has occurred during the past decade due to the fact that more and more people are in need of international protection. There is a legitimate public concern that this country should not make its resources too readily available to such persons while their right to remain in this country remains undetermined. There are sound reasons of policy for wishing to take a firm line on the need for applications for asylum to be made promptly and for wishing to limit the level of support until the right to remain has been determined, if and when support has to be made available.
14. It is important to stress at the outset, however, that engagement in this political debate forms no part of the judicial function …."
The statutory obligation concerning accommodation and assistance in this context arises pursuant to section 4 of the 1999 Act (as amended by section 49 of the Nationality, Immigration and Asylum Act 2002) which, together with regulations made pursuant to it, is the provision that forms the backdrop to each of these applications. An asylum seeker who is yet to receive a decision on his or her initial asylum claim is entitled to support and accommodation where appropriate under section 95 of the Act if he or she would otherwise be destitute (see paragraph 50 below).
The policy or practice in issue in this case is, in summary, that the further submissions advanced by someone whose previous application for asylum has been rejected must be considered before the application for support under section 4 is considered unless 15 working days have elapsed and there is to be further "justifiable delay" in deciding on the further submissions. In that latter situation support under section 4 should be considered. In other words, the policy or practice (if it exists) would involve an in-built delay before any application for support or assistance is considered on its merits (see further at paragraphs 139–150 below). It is argued that this policy, which is said deliberately to institute a systemic delay of at least three weeks before an application for section 4 support will even be considered, is unlawful.
The issue, thus formulated, is a fairly narrow one, but there is a significant background to it to which it will be necessary to make some reference before addressing it directly.
The procedural background
The precise issue in this case, namely, the legality of the policy or practice summarised in paragraph 7 above has not been considered by the courts previously. However, in the period prior to the adoption of that policy or practice, judicial review claims had been advanced by various individuals arising from alleged delays between the submission of a fresh claim for asylum and the provision of accommodation by the Secretary of State pending determination of their claims.
That issue was raised and considered on a renewed oral permission application before Blair J on 14 October 2009 in a case which I will identify simply as ' LG': [2009] EWHC 3674 (Admin). (That, incidentally, was the date upon which the policy or practice the subject of the present challenge was implemented.) Either by the time the application for judicial review was considered on the papers or by the time the renewed hearing took place, each of the three claimants in that case had been accommodated and provided with assistance. To that extent it was contended on behalf of the Secretary of State in each case that the proceedings were "academic". That was the conclusion reached by the judge who dealt with the matter on the papers in ' LG' and also that of Blair J, who gave a full judgment on the matter having heard argument from Mr Ranjiv Khubber (who, as junior counsel to Mr Martin Westgate QC, represents the Claimants in this case) and Mr Tom Poole for the Secretary of State (who also appears as junior counsel to Ms Samantha Broadfoot in the present case).
In due course, on 19 May 2010, having heard from Mr Westgate and Mr Khubber, Moses LJ gave permission to appeal against the decision of Blair J (see [2010] EWCA 1638), but affording the Secretary of State the opportunity to contend at the substantive hearing that the claims were indeed academic. The option of taking the matter back to be dealt with substantively by a single judge of the Administrative Court or arguing the matter at a substantive appeal against the decision of Blair J was given to the Secretary of State: [2010] EWCA Civ 977.
Moses LJ said that he was "concerned that there is a real dispute as to the proper legal approach to these questions of urgency under section 4 that require resolution" and that "perhaps a decision will at least assist in bringing a quietus to this problem." Mr Westgate had told him that there were at that time about 36 cases to the knowledge of his Instructing Solicitor that raised issues of this nature.
On the basis of the material before him, Moses LJ said that "there was prima facie delay in relation to all three of these applicants [which was] clear from the comparison between the time which the Secretary of State [set] as a target for making [the] decision and for implementation, two and then five days, and the actual number of days, which in one case amounted to two months, provision only being made after injunctions from the court."
As I understand it, the Secretary of State elected to have the matter determined...
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