R Cai Juan Chen v Secretary of State for the Home Department and Another
| Jurisdiction | England & Wales |
| Judge | Mr Justice Beatson |
| Judgment Date | 14 September 2012 |
| Neutral Citation | [2012] EWHC 2531 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 14 September 2012 |
| Docket Number | Case No: CO/4450/2011 |
[2012] EWHC 2531 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT IN BIRMINGHAM
Birmingham Civil Justice Centre
33 Bull Street, Birmingham, B4 6DS
The Honourable Mr Justice Beatson
Case No: CO/4450/2011
Ben Chataway (instructed by Bhatia Best Solicitors) for the Claimant
David Manknell (instructed by The Treasury Solicitor) for the First Defendant
The Second Defendant did not appear and was not represented
Hearing date: 9 July 2012
Further submissions: 20 and 23 July 2012
Introduction
Part VI of the Immigration and Asylum Act 1999 ("the 1999 Act") contains a scheme for the support and subsistence of those who apply for asylum in the United Kingdom who appear to be or to be likely to become destitute and the dependants of such persons. Such support is provided by the National Asylum Support Service (hereafter "NASS"), a section of the United Kingdom Border Agency. The claimant, Cai Juan Chen, a national of the People's Republic of China, is a person whose application for asylum has been refused but who continues to receive support and subsistence under section 95 of the 1999 Act because she has a dependant child under eighteen in the United Kingdom. She is in what can loosely described as an "off/on" relationship with Wen Bun Wu, another national of the People's Republic of China whose application for asylum has been refused.
In these proceedings, launched on 16 May 2011, the claimant challenges the decision of the Social Entitlement Chamber (Asylum Support) of the First Tier Tribunal on 1 March 2011 dismissing her appeal against the refusal of the Secretary of State to treat Mr Wu as her dependant for the purposes of the law on asylum support. If he is treated as her dependant, the Secretary of State will be obliged to provide her with additional support, including, it is submitted on her behalf, permitting him to reside with her at the accommodation provided to her by NASS. Amended grounds were filed on her behalf on 7 November, and, at a hearing on 30 January 2012, permission was given by HHJ Cooke.
In general (see for example MK and TM v Secretary of State for the Home Department [2010] EWHC 1002 (Admin) at [8] – [10], affirmed [2011] EWCA Civ 671) support and subsistence under section 95 of the 1999 Act is only provided for asylum seekers pending the determination of their application for refugee status. By section 95(4) the dependants of a person who is in receipt of support under section 95 are also entitled to the benefit of that support. After an individual's application for refugee status has been refused, in general he or she will only be entitled to a more restricted level of support pursuant to section 4 of the 1999 Act. The support under section 4 is restricted in order to minimise the incentive for those whose applications for asylum have been rejected to remain in the United Kingdom although they have no legal right to do so. It was established as an alternative to detention for such persons where there is a temporary barrier to removal.
Section 94(1)(a) and (b) of the 1999 Act provide that spouses and dependant children under 18 are to be treated as dependants. Section 94(1)(c) enables further categories of "dependant" to be to be added by regulations. Six additional categories have been added by the Asylum Support Regulations 2000 SI 2000 No 704 ("the 2000 Regulations"). One of those is a person in the United Kingdom who "had been living with [the asylum-seeker or supported person] as a member of an unmarried couple for at least two of the three years before the relevant time": see regulation 2(4)(f) of the 2000 Regulations. The "relevant time" is (see regulation 2(5)) the time a person in receipt of section 95 support applies for the other person to be treated as a dependant. It is common ground that Mr Wu does not qualify as the claimant's dependant under 94(1)(a) or on any ordinary reading of the 2000 Regulations, in particular regulation 2(4)(f).
The question for determination is whether the ordinary (common law) interpretation of regulation 2(4)(f) complies with the the requirements of Articles 8 and 14 of the European Convention on Human Rights ("the ECHR"), and, if it does not, whether Parliament has required the court, by virtue of section 3 of the Human Rights Act 1998, to read the provision so as to make it comply with the Convention.
After the substantive hearing on 9 July, the parties made further written submissions in the light of the 18 July 2012 decision of Eady J in Laurie Swift v Secretary of State for Justice [2012] EWHC 2000 (QB). In the claimant's submissions, my attention was also drawn to the 13 July 2010 decision of the Strasbourg court in Clift v United Kingdom [2010] ECHR 1106 which differed from the House of Lords as to whether the difference of treatment in that case was on a ground protected by Article 14 of the ECHR.
Factual background
The claimant arrived in the United Kingdom on 29 September 2007 and applied for asylum. Her application was refused in March 2008. In July 2009 she gave birth to a son, now aged three. She maintains that Mr Wu is the father of this child. Although the Secretary of State did not formally concede that he is, the case before me largely proceeded on the assumption that he is. For the purposes of these proceedings I also assume that he is. After the birth of her son, the claimant made further submissions in support of her claim to asylum. Those submissions were refused in April 2010. Her appeal against that decision was dismissed by the Immigration and Asylum Chamber of the First Tier Tribunal in October 2010.
Mr Wu entered the United Kingdom clandestinely after the claimant. At his asylum appeal he claimed to have arrived at Glasgow airport on 2 December 2007. He worked illegally until he was arrested on 7 September 2010. He applied for asylum the next day but his application was refused on 1 October 2010. His appeal against that refusal was dismissed by the Immigration and Asylum Chamber of the First Tier Tribunal on 22 December 2010. In the period between 8 September and 22 December 2010, while Mr Wu was an applicant for asylum, he was provided with his own support under section 95. That support included accommodation 23 St Paul's Road, Nottingham, at the address at which the the claimant was also provided with accommodation under section 95. Mr Wu's position changed after his application for asylum was refused and his appeal was dismissed. He was informed that his own support under section 95 was to be discontinued on 21 February 2011. Jumping ahead in the chronology, after these proceedings were brought, on 20 June 2011, Mr Wu applied for the more limited support under section 4 of the 1999 Act. The application was refused on the same day.
Discussion
For both the claimant and Mr Wu, absent the applicability of an exception to the general rule (to which I have referred at [3]), they were entitled to asylum support under section 95 of the 1999 Act until the determination of their applications for asylum. Thereafter they were not. It is clear that the claimant falls within the exception to the general rule in section 94(5) of the 1999 Act because she is a person who has a dependant minor child in the United Kingdom. Section 94(5) provides that such a person is to be treated as continuing to be an asylum-seeker for support purposes, so long as the child is under eighteen and the person and the child remain in the United Kingdom. The claimant has been provided with accommodation and subsistence support under section 95 since shortly before the birth of her son in July 2009.
If Mr Wu qualifies under the legislative scheme as the claimant's dependant, although his own independent support under section 95 of the 1999 Act ceased on 21 February 2011 he would fall within section 95(4). As such, although he is a failed asylum-seeker, he would be entitled to support under section 95 by virtue of that dependancy. He would thus fall within what might be described as another exception to the general rule. The difficulty facing this view of the position is that Mr Wu is not married to the claimant and his relationship with her has not been a consistent one. There is a dispute as to its history and extent, and the decisions of both the Immigration and Asylum Chamber and the Social Entitlement Chamber (Asylum Support) of the First Tier Tribunal put into question his and the claimant's credibility.
There is no agreement as to the underlying factual position. Mr Manknell, on behalf of the Secretary of State, relied on the findings made by the Tribunals which have considered the cases of the claimant and Mr Wu. Those Tribunals rejected a number of the important parts of the evidence in support of the claimant's case and made adverse credibility findings in respect of both of them.
The claimant's evidence in these proceedings is that she and Mr Wu lived together in China as a couple for around three years from 2004, had one child and adopted another, but separated in early 2007 due to arguments. Her evidence is that they were reunited in the United Kingdom in December 2007 and lived together, but separated again in February or March 2008. She also stated that Mr Wu stayed with her at 23 St Paul's Road for two or three nights a week between June and September 2009, and that they became reconciled in September 2010, the month in which he was arrested, since when they have been...
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