R AXG v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Steyn |
| Judgment Date | 14 January 2022 |
| Neutral Citation | [2022] EWHC 56 (Admin) |
| Docket Number | Case No: CO/341/2021 |
| Court | Queen's Bench Division (Administrative Court) |
THE HONOURABLE Mrs Justice Steyn DBE
Case No: CO/341/2021
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT FOR WALES
Cardiff Civil Justice Centre
2 Park St, Cardiff, CF10 2ET
Shu Shin Luh (instructed by Simpson Millar LLP) for the Claimant
Hafsah Masood (instructed by Government Legal Department) for the Defendant
Hearing date: 5 October 2021
Approved Judgment
A. Introduction
This is a claim for judicial review. The claimant is an asylum seeker from Nigeria, and a single mother to a girl who is now six years old. Her application for asylum has not yet been determined. On 25 October 2019, the claimant and her daughter were granted asylum support pursuant to section 95 of the Immigration and Asylum Act 1999 (“the IAA 1999”). They were accommodated in full board initial accommodation from (about) 1 November 2019 until 28 June 2021 when they were provided with dispersal accommodation.
The claim challenges a decision made by the Secretary of State on 19 October 2020, and announced on 27 October 2020 (“the October 2020 decision”), in accordance with which:
i) First, the defendant paid the claimant and her young daughter a cash allowance of only £8 per person per week, in respect of the period from 27 October 2020 until 28 June 2021, whilst they were in hotel accommodation provided under s.95 of the IAA 1999, omitting to pay the (assessed) cost of £3.56 per week (or any sum) in relation to communications; and
ii) Secondly, the defendant decided to pay the claimant and her daughter backdated payments of cash allowance:
a) Limited in time to the period from 27 March 2020 to 26 October 2020, save to the extent that payments in respect of travel were further limited to the period from 1 July 2020, omitting to make cash payments:
I) from 1 November 2019 to 26 March 2020 in respect of communications, travel, clothing/footwear, non-prescription medication and (to a limited extent) laundry;
II) from 27 March 2020 to 30 June 2020 in respect of travel;
b) Omitting the assessed (or any) sum in respect of the cost of communication; and
c) Omitting the assessed (or any) sum in respect of the cost of non-prescription medication.
Since I granted permission on 17 June 2021, in the light of the judgment of Farbey J in JM v Secretary of State for the Home Department [2021] EWHC 2514 (Admin), the issues between the parties have significantly narrowed.
In JM, Farbey J found that the Secretary of State had not properly recognised or carried out her duty to provide asylum seekers in full board accommodation with the means of communication (in cash or kind) as an essential living need during the pandemic ([147] to [148]). In circumstances in which the claimant did not want the court to conduct an individualised assessment of his situation, the court declined to grant any relief relating to the claimant specifically ([155]), but considered it appropriate to make the following declaration:
“It is declared that the Secretary of State's decision of 19 October 2020 was unlawful in that she failed to have proper regard to the communication needs of asylum seekers supported in full board hotel accommodation under section 95 of the Immigration and Asylum Act 1999.”
In JM, the claimant also challenged the Secretary of State's decision relating to travel, in particular the imposition of a longstop date of 1 July 2020 for back-dated payments for travel in light of the COVID-related restrictions that were in place nationally during the relevant period. Farbey J rejected this aspect of the challenge, finding that the Secretary of State's conclusion in respect of travel during this period was one she was entitled to reach, and there had been a sufficient discharge of her duties: [113] to [123].
In this claim, both parties accept the applicability of Farbey J's conclusions in JM. The challenge referred to in paragraph 2 above (in respect of the communications allowance) is well-founded, but it is common ground that it is unnecessary for this court to grant relief. The court in JM left it to the Secretary of State to decide what needs to be done to address the unlawfulness found, and the claimant and her daughter will be encompassed in any such decision. The claimant does not pursue the challenge referred to in paragraph 2 above (in respect of the imposition of a long-stop date of 1 July 2020 for backdated payments for travel).
Accordingly, the challenge is confined to two matters that were not in issue in JM, namely, (a) the decision not to include any sum in respect of non-prescription medication in the back-dated payments the Secretary of State determined should be made in respect of the period from 27 March to 26 October 2020 and (b) the decision to impose a longstop date of 27 March 2020 for back-dated payments.
B. The legal framework
This case concerns asylum seekers who are owed the s.95 duty. It is not concerned with support provided under s.98 of the IAA 1999 pending the Secretary of State's determination whether the applicant is entitled to support under s.95. There is no dispute between the parties that the legal framework is accurately set out in JM at [11] to [23], so it is unnecessary to do more than set out the key aspects of the legal framework in this judgment.
Under s.95(1) of the IAA 1999, 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. In accordance with s.96(1) of the IAA 1999, asylum support provided under s.95 has two key elements: accommodation and “ essential living needs”. The present claim, like JM, concerns the concept of essential living needs only, not accommodation.
Although s.95 is expressed as a power to provide support, it is established and common ground that it is converted to a duty by Council Directive 2003/9/EC which laid down the minimum standards for the reception of asylum seekers: see JM at [15] to [16]. It was common ground, at the hearing, that the Reception Directive (as recast since Refugee Council) represented the position under English law at all times that are material to this claim.
There is a hard-edged minimum standard to the essential living needs to be provided under ss.95 and 96(1)(b), which the court is required to ensure is not breached: see R (Refugee Action) v Secretary of State for the Home Department [2014] EWHC 1033 (Admin) in which Popplewell J held (at [85] and [88]) that, applying the Marleasing principle, s.96(1)(b) had to be read as subject to a “ minimum content” derived from the Reception Directive.
Popplewell J observed at [85]:
“Provision for essential living needs must therefore be interpreted as including, as a minimum, provision of the minimum reception conditions required by the Directive. The minimum standard of living for which provision is required by the Directive is not a matter for the Secretary of State's subjective judgment but an objective standard. To this extent it is not open to her to treat essential living needs as having a lesser content than the objective minimum required by the Directive. Section 95 and 96 must be interpreted in such a way as to place such a view outside the range of reasonable judgments in order to be compatible with and give effect to the Reception Directive. If the Secretary of State were to make a judgment which treated essential living needs as something less than the minimum standard of living required by the Directive, it would be both irrational and unlawful.”
Any provision for living needs beyond such minimum content is an evaluative judgement for the Secretary of State. Therefore there is a role for Wednesbury review, but it only comes into play after it is established that the minimum standards protected by the Reception Directive have been complied with: Refugee Council and R (JK (Burundi)) v Secretary of State for the Home Department [2017] 1 WLR 4567.
Regulation 10 of the Asylum Support Regulations 2000 (2000/704) prescribes the kind and level of support that is required to meet an asylum seeker's essential living needs for the purposes of s.95 of the IAA 1999. The version in force until 21 February 2021 reads, so far as material:
“(1) This regulation applies where the Secretary of State has decided that asylum support should be provided in respect of the essential living needs of a person.”
(2) As a general rule, asylum support in respect of the essential living needs of that person may be expected to be provided weekly in the form of a cash payment of £37.75.
…
(5) Where the Secretary of State has decided that accommodation should be provided for a person by way of asylum support, and the accommodation is provided in a form which also meets other essential living needs (such as bed and breakfast, or half or full board), the amount specified in paragraph (2) shall be treated as reduced accordingly.”
On 22 February 2021, the amount prescribed in regulation 10(2) was increased to £39.63.
The Secretary of State is free to use contractors to perform her duty to meet the essential living needs of destitute asylum seekers under ss.95 and 96(1)(b), but the duty remains hers: R (DMA) v Secretary of State for the Home Department [2021] 1 WLR 2374 at [99]–[100].
If an individual, because of their particular circumstances, requires more support than it is assessed asylum seekers in general need, they can apply for support to be provided under s.96(2), which provides:
“(2) If the Secretary of State considers that the circumstances of a particular case are exceptional, he may provide support under section 95 in such other ways as he considers necessary to enable the...
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R (on the application of CB) v The Secretary of State for the Home Department
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