R (Kiana) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judgment Date | 20 April 2010 |
| Neutral Citation | [2010] EWHC 1002 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 20 April 2010 |
| Docket Number | CO/14630/2009 |
[2010] EWHC 1002 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Before: M Supperstone QC
Sitting as a Deputy High Court Judge
CO/14630/2009
Mr M Westgate QC and Mr R Khubber (instructed by Messrs Ben Hoare Bell LLP) appeared on behalf of the Claimant
Mr Ben Lask (hearing) and Ms Julie Anderson (judgment) (instructed by the Treasury Solicitor) appeared on behalf of the Defendant
THE DEPUTY: Introduction
The claimants challenge the decision of the Secretary of State for the Home Department (“the defendant”) made on 16th November 2009 to offer the first claimant support in the form of accommodation and subsequently vouchers to purchase food and essential toiletries. The first claimant declined the offer because it would require him to live separately from his partner, the second claimant, and his young daughter.
This case raises an issue of general application as to the scope of assistance under section 4 of the Immigration and Asylum Act 1999 (“the 1999 Act”). Section 4(2) gives the defendant power to “provide or arrange for the provision of facilities for the accommodation of” failed asylum seekers.
The question is the nature of the support that the defendant may provide or arrange where an applicant has access or the means of access to accommodation but cannot meet his essential living needs. The context in which the question arises in the present proceedings is that of a “mixed household” where a section 4 applicant is living with a person who is entitled to work and to mainstream benefits, but their joint income, absent section 4 support, is such that they are still destitute. The second claimant is a British citizen, as is the daughter of the claimants.
On 20th January 2010, Stadlen J directed that this matter be listed for a “rolled up” hearing on an expedited basis. Two other cases raising the same issues have been set down to be heard on 23rd April 2010. The first claimant has in fact now being granted three years discretionary leave, which renders his application academic. However, given the importance of the legal issue to be considered, the parties have agreed that this matter should still proceed. The claimant's solicitor suggests the issue in this case “affects many hundreds, if not thousands, of section 4 applicants or potential applicants”.
Factual background
The first claimant is a national of Iran. He arrived in the UK on 28th August 2007 and applied for asylum on the same day. On 7th January 2008, his application for asylum was refused. His appeal was dismissed on 7th March 2008. The first claimant's appeal rights became exhausted on 18th April 2008. Further representations were submitted by the first claimant's then solicitors on 5th November 2008. By letter dated 12th January 2010, he was informed that it had been decided that the decision of 7th January 2008, upheld by an immigration judge on 7th March 2008, should not be reversed and that the submissions did not amount to a fresh claim. Subsequently, on 12th March 2010, further representations were made on the first claimant's behalf in which it was submitted that his removal from the UK would constitute a disproportionate interference with his rights under Article 8 of the ECHR. By letter dated 13th April 2010, the first claimant was informed that he is to be granted three years discretionary leave. No reasons for the decision have as yet been given.
On 7th September 2007, the first claimant was granted support under section 95 of the 1999 Act. On 1st May 2008, he was notified that his section 95 support was to be discontinued with effect from 15th May 2008 since he had exhausted his appeal rights in his asylum claim on 18th April 2008. On 5th October 2009, the first claimant applied for support under section 4 of the 1999 Act on the grounds that he was destitute and required support in order to avoid a breach of his rights under the ECHR. He stated:
“As I am staying with my partner I require support in a mixed household with my partner who is [in] receipt of main stream benefit[s].”
On 17th October 2009, the application for support was refused on the grounds that it did not appear to the defendant that he was destitute. He appealed that decision and on 4th November 2009 the First-tier Tribunal, Asylum Support, allowed his appeal and decided that he was entitled to receive section 4 support. By letter dated 16th November 2009, the first claimant was informed that support would be provided to him in the form of separate accommodation on a no choice basis. The offer was made subject to conditions, one of which was:
“You must reside at the accommodation provided to you and must not be absent without the permission of the Secretary of State from the accommodation for more than 7 consecutive days and nights or for more than a total of 14 days and nights in a 6-month period.”
The offer of support was not taken up by the first claimant as it would require him to live separately from his partner and daughter, which he did not wish to do. On 23rd November 2009, a pre-action protocol letter was written to the defendant and the present claim for judicial review was filed on 2nd December 2009.
The legislative framework
Separate provision is made in the 1999 Act for support for asylum seekers and support for persons whose asylum applications have failed. By section 95(1) the defendant may provide or arrange for the provision of support for asylum seekers or 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. By section 95(3) 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.”
Section 95(4) states that:
“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.”
Support under section 95 can be provided in the ways set out in section 96:
“(1) Support may be provided under section 95—
(a) by providing accommodation appearing to the Secretary of State to be adequate for the needs of the supported person and his dependants (if any);
(b) by providing what appear to the Secretary of State to be essential living needs of the supported person and his dependants (if any)…
(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 supported person and his dependants (if any) to be supported.”
The Asylum Support Regulations 2000 set out the circumstances in which support under section 95 will be provided. They are supplemented by the Asylum Seekers (Reception Conditions) Order 2005. Support under section 95 applies only for so long as the person is an asylum seeker and their application is pending, although an asylum seeker with dependant children living with them remains an asylum seeker so long as they continue to so reside and are under 18 and unless and until they are given leave to remain (section 95(5) and (6)). Section 4 governs the provision of support to failed asylum seekers. So far as is material, it states:
“4(2) The Secretary of State may provide, or arrange for the provision of, facilities for the accommodation of a person if —
(a) he was (but is no longer) an asylum seeker, and
(b) his claim for asylum was rejected.
…
(5) The Secretary of State may make regulations specifying criteria to be used in determining —
(a) whether or not to provide accommodation, or arrange for the provision of accommodation, for a person under this section;
(b) whether or not to continue to provide accommodation, or arrange for the provision of accommodation, for a person under this section.
…
(6) The regulations may, in particular —
(a) provide for the continuation of the provision of accommodation for a person to be conditional upon his performance of or participation in community activities in accordance with arrangements made by the Secretary of State;
(b) provide for the continuation of the provision of accommodation to be subject to other conditions;
(c) provide for the provision of accommodation (or the continuation of the provision of accommodation) to be a matter for the Secretary of State's discretion to a specified extent or in a specified class of case.
…
(10) The Secretary of State may make regulations permitting a person who is provided with accommodation under this section to be supplied also with services or facilities of a specified kind.
(11) Regulations under subsection (10)-
(a) may, in particular, permit a person to be supplied with a voucher which may be exchanged for goods or services,
(b) may not permit a person to be supplied with money,
(c) may restrict the extent or value of services or facilities to be provided, and
(d) may confer a discretion.”
The Immigration and Asylum (Provision of Accommodation to Failed Asylum Seekers) Regulations 2005 have been made under section 4(5) and the Immigration Asylum (Provision of Services or Facilities) Regulations 2007 have been made under section 4(10) and (11). By regulation 3 of the 2005 regulations, the criteria to be used to determine the matters referred to in paragraphs...
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