R JK v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Gross,Lord Justice Irwin,Lady Justice Hallett,and |
| Judgment Date | 22 June 2017 |
| Neutral Citation | [2017] EWCA Civ 433 |
| Docket Number | Case No: C1/2016/4367 |
| Court | Court of Appeal (Civil Division) |
| Date | 22 June 2017 |
Lady Justice Hallett
Lord Justice Gross
and
Lord Justice Irwin
Case No: C1/2016/4367
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Mr Justice Flaux
Royal Courts of Justice
Strand, London, WC2A 2LL
Stephen Knafler QC and Zoe Leventhal (instructed by Birmingham Community Law Centre) for the Appellant
Clive Sheldon QC and James Cornwell (instructed by Government Legal Department) for the Respondent
Hearing dates: 22 March, 2017
Judgment Approved
INTRODUCTION
The immediate issue on this hearing involves a challenge to a decision by the Secretary of State for the Home Department ("the Respondent") as to the weekly rate of asylum support paid for child dependants of asylum seekers. Underlying the challenge, however, are questions as to the proper province of the Judiciary and that of the Executive in matters such as this. Still further, the facts of the present case highlight, disconcertingly, the time taken to dispose of asylum applications.
On the 17 th January, 2017, the Applicant was granted an extension of time and her application for permission to appeal from the judgment of Flaux J (as he then was), dated 24 th October, 2016 ("the judgment"), was adjourned into court, to be considered by way of a rolled-up hearing.
The Applicant is a single parent with three dependent children aged, 2, 4 and 10. She is a national of Burundi, who first entered the United Kingdom under a false identity in 2004. In 2006, an asylum claim (in her correct identity) was refused. In 2009, the Applicant was removed from the United Kingdom but, on account of her own disruptive behaviour, was taken off a transit flight at Nairobi and returned to the United Kingdom. Later in 2009, further asylum submissions were refused. There is some controversy as to the detail of the Applicant's criminal convictions, which need not be elaborated upon here. In 2010, the Respondent agreed to reconsider her further asylum submissions. Sundry communications followed over the ensuing years between the Respondent's officials and the Applicant concerning the Applicant's children, their fathers and her family or private life. A decision to deport was made in 2016 but, by letter dated 1 st February, 2017, the Applicant was informed that deportation would not be pursued and that she would be granted discretionary leave to remain. It can thus be seen that the Applicant's fresh claim for asylum, made in 2010, was not determined for over six years. We were told at the hearing that the Applicant had been in receipt of asylum support since November 2011.
On the 16 th July, 2015, the Respondent decided ("the decision") to reduce the weekly rate of asylum support paid for child dependants of asylum seekers from £52.96 to £36.95 per week, amounting to a 30% reduction. The decision was made pursuant to the Asylum Support (Amendment No. 3) Regulations 2015 ("the 2015 Regulations"). On the same day, the Respondent explained, in a letter to the National Asylum Stakeholder Forum ("NASF"), that the payment levels then in place for families had exceeded the amount required for them to meet essential living needs. It was further stated that there would still be sufficient funds for parents to care for their children safely and effectively.
By way of a claim for judicial review, the Applicant challenged the decision on a variety of grounds. That challenge was dismissed by Flaux J, for the reasons set out in the judgment.
Ultimately, at the commencement of the hearing, the Applicant's grounds were helpfully narrowed to two:
i) First, the Respondent had carried out a flawed assessment by failing to treat the best interests of children as a primary consideration; the Respondent had wrongly focused on subsistence rather than the welfare of children ("Best Interests").
ii) Secondly, the Respondent had discriminated against the child dependants of asylum seekers compared with the children of settled residents in receipt of welfare benefits ("Discrimination").
In the course of the hearing, Mr Knafler QC for the Applicant, correctly in our view, abandoned the Discrimination ground. If the Applicant succeeded on the Best Interests ground, then she did not need the Discrimination ground; if, on the other hand, she failed on the Best Interests ground, then she was bound to fail on the Discrimination ground – the justification for any "discrimination" would answer itself. Accordingly, the appeal and this judgment are solely concerned with the Best Interests ground.
THE LEGAL FRAMEWORK
(1) Domestic Law: To my mind, the starting point must be the domestic statutory provision for support to asylum seekers, pursuant to Part VI of the Immigration and Asylum Act 1999 ("the IAA 1999") and Regulations made thereunder.
S.95 of the IAA 1999 provides as follows:
"(1) The Secretary of State may provide, or arrange for the provision of, support for –
(a) asylum-seekers, or
(b) dependants of asylum-seekers,
who appear to the Secretary of State to be destitute or to be likely to become destitute within such period as may be prescribed.
(3) For the purposes of this section, a person is destitute if –
(a) he does not have adequate accommodation or any means of obtaining it (whether or not his other essential living needs are met); or
(b) he has adequate accommodation or the means of obtaining it, but cannot meet his other essential living needs.
(4) If a person has dependants, subsection (3) is to be read as if the references to him were references to him and his dependants taken together.
(8) The Secretary of State may by regulations provide that items or expenses of such a description as may be prescribed are, or are not, to be treated as being an essential living need of a person for the purposes of this Part."
S.96 of the IAA 1999 makes provision for the various ways in which support may be provided. Thus, s.96(1)(a) deals with the provision of accommodation. S.96(1)(b) is in these terms:
"(1) Support may be provided under section 95 –
(b) by providing what appear to the Secretary of State to be essential living needs of the supported person and his dependants (if any);"
S.96(2) goes on to permit the Secretary of State to provide support under s.95 in such other ways as he considers necessary if he "considers that the circumstances of a particular case are exceptional".
In respect of child dependants, the power to provide support pursuant to s.95 is, in effect, converted into a duty by s.122 of the IAA 1999. S.122(4) provides that if it appears to the Secretary of State that essential living needs of the child are not being met, "he must" exercise his powers under s.95 of providing or arranging for the provision thereof.
Turning to the Regulations, the reduction in the weekly rate of asylum support paid "as a general rule" to child dependants of asylum seekers in respect of their essential living needs, from £52.96 to £36.95, was introduced by the 2015 Regulations amending reg. 10(2) of The Asylum Support Regulations 2000 ("the 2000 Regulations"), with effect from 10 th August, 2015.
It may be noted:
i) Reg. 10A(1) of the 2000 Regulations makes provision for the payment of additional support in respect of pregnant women and children under the age of three.
ii) Reg. 9(3) of the 2000 Regulations provides that none of the "items and expenses mentioned in paragraph (4)" is to be treated as "being an essential living need". As set out in para. 4, those items and expenses are as follows:
"(a) the cost of faxes;
(b) computers and the cost of computer facilities;
(c) the cost or photocopying;
(d) travel expenses, except the expense mentioned in paragraph (5);
(e) toys and other recreational items;
(f) entertainment expenses."
(2) European Law: Council Directive 2003/9/EC ("the RCD") lays down "minimum standards for the reception of asylum seekers". As provided in para. (5) of the Preamble to the RCD:
"This Directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union. In particular, this Directive seeks to ensure full respect for human dignity and to promote the application of Articles 1 and 18 of the said Charter."
Para. (7) of the Preamble provides as follows:
"Minimum standards for the reception of asylum seekers that will normally suffice to ensure them a dignified standard of living and comparable living conditions in all Member States should be laid down."
Art. 1 states that the purpose of the RCD is to lay down "minimum standards" for the reception of asylum seekers in Member States.
Art. 13 of the RCD furnishes general rules on material reception conditions and health care. Art. 13.2 requires Member States to make provisions:
"…on material reception conditions to ensure a standard of living adequate for the health of applicants and capable of ensuring their subsistence. Member States shall ensure that that standard of living is met in the specific situation of persons who have special needs, in accordance with Art. 17…."
Chapter IV of the RCD, beginning at Art. 17 deals with provisions for persons with special needs, including minors. Art. 18.1 is in these terms:
"The best interests of the child shall be a primary consideration for Member States when implementing the provisions of this Directive that involve minors."
Art. 24.2 of the RCD provides that it is incumbent on Member States to "allocate the necessary resources" for its implementation.
As already observed, the RCD seeks to give effect to the Charter of Fundamental Rights of the European Union ( 2012/C 326/02)...
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