Petitions Of O Against The Advocate General For Scotland And N Against The Advocate General For Scotland For Judicial Review
| Jurisdiction | Scotland |
| Judge | Lady Wolffe |
| Neutral Citation | [2018] CSOH 7 |
| Date | 01 February 2018 |
| Docket Number | P1391/15 & P1418/15 |
| Court | Court of Session |
| Published date | 01 February 2018 |
OUTER HOUSE, COURT OF SESSION
[2018] CSOH 7
P1391/15 & P1418/15
OPINION OF LADY WOLFFE
In the Petitions of
O
Petitioner
against
THE ADVOCATE GENERAL FOR SCOTLAND
Respondent
and
N
Petitioner
Against
THE ADVOCATE GENERAL FOR SCOTLAND
Respondent
for Judicial Review
Petitioners: McBrearty QC, Irvine; Balfour + Manson LLP
Defender: Johnston QC, Gill; Office of the Advocate General
1 February 2018
2
Introduction
[1] The petitioner in each these two judicial review proceedings is a single parent
asylum seeker with one or more dependent children. Asylum seekers are ineligible for
mainstream welfare benefits. However, an asylum seeker is eligible to receive financial (ie
cash) support payable under regulation 10(2) of the Asylum Support Regulations 2000/704
(the “2000 Regulations”) in respect of themselves and any dependants (“asylum support”).
Amendment to Regulation 10 of the 2000 Regulations
[2] Following a government review of the level of asylum support, the amount of
asylum support payable was reduced, with effect from 10 August 2015, by the Asylum
Support (Amendment No 3) Regulations 2015 (the “Amending Regulations”). As a
consequence, the amounts payable in respect of each petitioner and each dependant child (of
£43.94 and of £52.90, respectively) was reduced in each case to the figure of £36.95 per
person (ie whether a child or adult). In practical terms, this resulted in a reduction of about
30% of the amount of asylum support payable to the petitioners in respect of themselves and
their dependant children. The petitioners challenge these changes in asylum support
effected by the Amending Regulations.
Regulation 9 of the 2000 Regulations
[3] They also challenge the exclusion, by virtue of amendments to regulation 9(4) of the
2000 Regulations, of (i) recreational items (ie toys), (ii) entertainmentexpenses and, as
regards school age children in particular, (iii) either the cost of computer facilities or the cost
of travel to obtain the use of free computer facilities (“the excluded items”) from the
3
definition of “essential living needs” for the purposes of section 95 of the Immigration and
Asylum Act 1999 (“the 1999 Act”).
Commission for Equality and Human Rights
[4] The Commission for Equality and Human Rights (“the CEHR”) has been given leave
to lodge written submissions in these proceedings. I summarise those below.
Orders Sought by the Petitioners
[5] The petitioners seek the following substantive orders:
1) Reduction of regulation 10(2) of the 2000 Regulations;
2) Declarator that the Secretary of State in reducing the amount of asylum support
payable in respect of each petitioner et separatim her children has acted in breach
of one or more of the following:
i. Council Directive 2003/9/EC of 27 January 2003 (“the Reception
Directive”) laying down minimum standards for the reception of asylum
seekers;
ii. Articles 21 and 24 of the Charter of Fundamental Rights of the European
Union (“the CFR”);
iii. Article 14 when read with Article 8 of the European Convention on
Human Rights and Fundamental Freedoms (“the ECHR”);
iv. section 55 of the Borders, Citizenship and Immigration Act 2009 (“the
2009 Act”);
3) Declarator that the Secretary of State has acted in breach of the public sector
equality duty (“the PSED”) in section 149 of the Equality Act 2010 (“the 2010
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