Mostafa Shahi v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lady Justice Elisabeth Laing DBE,Lord Justice Dingemans,Lord Justice Newey |
| Judgment Date | 16 November 2021 |
| Neutral Citation | [2021] EWCA Civ 1676 |
| Docket Number | Case No: C4/2021/0585 |
| Court | Court of Appeal (Civil Division) |
[2021] EWCA Civ 1676
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
IN THE MATTER OF AN APLICATION FOR JUDICIAL REVIEW
HHJ Worster
CO/639/2020
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Newey
Lord Justice Dingemans
and
Lady Justice Elisabeth Laing
Case No: C4/2021/0585
Tim Buley QC and Raza Halim (instructed by Duncan Lewis) for the Appellant
Natasha Barnes (instructed by Government Legal Department) for the Respondent
Hearing date: 2 November 2021
Approved Judgment
Introduction
This is an appeal, with the permission of Simler LJ, against a decision of HHJ Worster, sitting as a Judge of the High Court (‘the Judge’), to make no order for costs in this case. Simler LJ gave permission to appeal, not on the grounds that she was satisfied that the appeal had a realistic prospect of success, but because a different judge (Tipples J) had ordered the Secretary of State to pay the costs of a similar claim in another case. There was a compelling reason to hear the appeal, which was to decide whether a grant of interim relief amounted to success for costs purposes.
No order for anonymity has been made so far in this case, and none was sought at the hearing. Nevertheless, and for convenience only, I will in this judgment refer to the Appellant as ‘MS’. MS was represented by Mr Buley QC and Mr Halim, and the Secretary of State by Ms Barnes. I thank counsel for their written and oral submissions.
The facts in outline
MS was born in Afghanistan on 27 November 1989. He left Afghanistan in ‘2002/2003’. He first came to the United Kingdom in ‘2004/2005’. He claimed asylum in 2006. The Secretary of State refused his claim. His appeal was dismissed on 21 February 2007. He was eventually removed to Afghanistan in 2012. At some unspecified point in 2015, he returned to the United Kingdom, after spending, on his own account, about a year in Turkey, and unspecified lengths of time in Greece, the Czech Republic and France. He was detained under immigration powers in February 2018. He made further submissions, based on his conversion to Christianity during the period after his return to Afghanistan (and on the risks associated with that), and on his mental health.
The Secretary of State recognised MS as a refugee on 3 January 2020. The Secretary of State sent a letter to MS dated 9 January 2020. MS was told that he would receive his biometric residence permit (‘BRP’) by courier within 10 working days. An attached leaflet gave him more information about the grant of asylum and the help available to him. A further leaflet from the Department of Work and Pensions (‘the DWP’) explained how the DWP could help him to find work and to claim benefits. Those leaflets were in the bundle of documents for this appeal. One of the leaflets, headed ‘Urgent things you need to do’, explained that asylum support would stop 28 days after receipt of the BRP. It also explained how to get an advance payment of benefits, how to open a bank account, and that MS's national insurance number would be endorsed on the back of his BRP.
The Secretary of State sent MS a further letter dated 11 January 2020. This letter told MS that, following the grant of refugee status, he would no longer qualify for support under ‘section 98, or 95 or 4 of the Immigration and Asylum Act 1999’ (‘the 1999 Act’). His support would end on 19 February 2020. The Secretary of State, therefore, decided to stop providing MS with support some 40 days after the grant of refugee status, and about a calendar month after the latest date by which, according to the letter of 9 January 2020, it was expected that he would receive his BRP. The letter of 11 January added that MS would continue to receive £35.39 a week until 19 February 2020. His BRP, the letter continued, had been successfully issued on 10 January 2020 (a Friday). He would be allowed to stay in the accommodation allocated to him until 19 February 2020, when he would be expected to leave. The accommodation provider would contact him separately about that. He was now allowed to take employment and claim benefits. He should show the letter of 11 January and his BRP to the DWP if he needed help from the DWP. He would shortly be contacted by Migrant Help who would give him further information and support.
On 13 January 2020, Serco, who had provided MS with accommodation on behalf of the Secretary of State, sent MS a letter telling him that he must leave that accommodation no later than 12 noon on Wednesday 19 February 2020.
It appears that MS's solicitors received his BRP on 14 January 2020 (that is the date stamped on it as the date on which it was received by them). As one of the leaflets had foreshadowed, the BRP had MS's national insurance number endorsed on its back. For a reason which is not explained in the documents, MS did not get his BRP from his solicitors until 23 January 2020.
MS's pre-action protocol letter
On 29 January 2020, so over two weeks after MS's solicitors received the BRP, they wrote a pre-action protocol letter to the Secretary of State. Its purpose was said to be to avoid litigation by giving the Secretary of State ‘the opportunity to rectify the Defendant's unlawful action’. If the Secretary of State continued to act unlawfully, the solicitors would have no option but to start a claim for judicial review on MS's behalf ‘and recover the costs from you’. MS's solicitors considered that the dispute could be resolved quickly. They insisted on ‘action being taken’ in response to the letter by 4pm on 12 February 2020. They said they were challenging two things which were unlawful:
i. ‘The decision to stop providing [MS] with support…28 days after the granting of refugee status’ and
ii. ‘The failure of the Defendant to amend Regulation 3 of the Asylum Support (Amendment) Regulations 2002 in order to provide a sufficient move-on or ‘grace’ period’.
The letter then described MS's account of his experiences, and described the letters he had received from the Secretary of State in January 2020. It said that MS's solicitors received the BRP on 14 January and that MS had received it on 23 January 2020. The letter said that MS had been to an appointment with the local housing authority on 17 January with his BRP (which seems inconsistent with the solicitors' earlier statement that MS did not receive the BRP from them until 23 January) and that he had been to an appointment to apply for Universal Credit (‘UC’) on 29 January, but had been told that he could not apply without a bank account number and sort code. The letter added that MS had now opened an account, but did not have an account number or sort code.
The letter then described two potential grounds of claim. Ground 1 was that the decision to cease support under section 95 of the 1999 Act was unlawful. The letter referred to government advice that it usually takes 35 days from the date when a person applied for UC until he received his first payment; and it could take longer. MS had arranged another appointment for 30 January. If his claim was processed in 35 days, there would be a 15-day gap in support.
The letter acknowledged that it was possible to apply for an advance of UC. It was necessary to have a BRP and a bank account (both of which, I interpose, it seems to have been anticipated that MS would have had by 30 January). The letter also acknowledged that the local housing authority had a duty to provide temporary accommodation to people who are about to become homeless and not only where they were in priority need. The letter further acknowledged that MS was arguably a person who had a priority need for accommodation. That was a question for the local housing authority to decide. If the local housing authority decided that MS was not in priority need, its duty, instead, would be to help him secure accommodation within 56 days.
The decision to stop MS's support meant that ‘there will be a gap in the provision of support for [MS] because [the Secretary of State] has no legislative power to extend that period’. The letter then asserted that regulation 2(2) of the Asylum Support Regulations 2000 (‘the Regulations’) ‘gives rise to breaches of Articles 3 and 8 ECHR where their ordinary operation will cause [MS] to become destitute with no money to feed or look after himself’. The actions of the state had put MS in a position of vulnerability ‘in this transition period’. The effects of his vulnerable status did not end as soon as he was granted asylum. The case cited by MS's solicitors, R (JS) v Secretary of State for Work and Pensions [2014] EWCA (Civ) 156; [2014] PTSR 619, shows that there was (at least in 2012) no case in which the European Court of Human Rights had held that article 8 imposes a positive duty on state to provide welfare benefits (paragraph 97). Nor was JS a case in which a domestic court recognised such a duty. MS's solicitors nevertheless contended that the Regulations were a breach of articles 3 and 8 of the European Convention on Human Rights (‘the ECHR’), and thus, a breach of the Human Rights Act 1998 (‘the HRA’).
Ground 2 was an assertion that the Secretary of State's failure to amend the Regulations was unlawful. The Regulations gave no discretion to caseworkers to extend support beyond the 28-day period. There was a real risk that individuals could become destitute ‘in breach of their human rights if their asylum support is ceased after 28 days...
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