R (on the application of CB) v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Fordham |
| Judgment Date | 21 December 2022 |
| Neutral Citation | [2022] EWHC 3329 (Admin) |
| Docket Number | Case No: CO/1804/2022 |
| Court | King's Bench Division (Administrative Court) |
[2022] EWHC 3329 (Admin)
Mr Justice Fordham
Case No: CO/1804/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
SITTING IN MANCHESTER
Jamie Burton KC and Michael Spencer (instructed by Greater Manchester Law Centre) for the Claimant
Colin Thomann (instructed by Government Legal Department) for the Defendant
Hearing date: 15/12/22
Approved Judgment
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HON. Mr Justice Fordham
I. INTRODUCTION
In these judicial review proceedings there are two Agreed Issues. Issue (1): Did the Defendant (“the SSHD”) err in law for the reasons set out in the Claimant's Grounds of Challenge in setting the rate of weekly cash payment in respect of the essential living needs of persons to whom she has decided to provide asylum support, by regulation 2 of the Asylum Support (Amendment) Regulations 2022 (SI 2022 No. 78) (“the 2022 Regulations”) with effect from 21 February 2022 (“the Uprating Decision”)? Issue (2): Did the SSHD in any event err in law in failing to reconsider and/or review the rate of asylum support after 21 February 2022 and is she currently in breach of her obligations under s.95 of the Immigration and Asylum Act 1999 (“the 1999 Act”)?
As can be seen from Agreed Issues (1) and (2), this case is an example of a “then and now” claim (cf. R (Rowley) v Minister for the Cabinet Office [2021] EWHC 2108 (Admin) [2022] 1 WLR 1179 at §10). It does not fall foul of the vices associated with “rolling judicial review”. Declaratory relief can be “then” or “now” or both. Mandatory orders – and one is sought in the present case – are by nature about “now”. The claim form and grounds for judicial review stand as a fair and clear framework with distinct temporal focuses. On Agreed Issue (1), the focus in time is on the position on 11 November 2021 when the SSHD decided what rate to set, and on 26 January 2022 when she made the 2022 Regulations setting it (£40.85). On Agreed Issue (2), the focus in time is the period after 21 February 2022 and, ultimately, the date of the hearing before me (15 December 2022). None of this is in dispute: the issues are agreed.
Issue (2) encompasses these questions: (i) whether the SSHD erred in law in failing to make a decision after 21 February 2022; (ii) whether the SSHD erred in law and breached her obligations under s.95 in failing to increase the rate after 21 February 2022; and (iii) whether as at the present time the SSHD is acting unlawfully and in breach of her obligations under s.95. At the substantive hearing before me, Colin Thomann for the SSHD accepted that he “could not resist” – albeit nor could he “consent” to – the Court making Declarations against the SSHD on all these questions. On behalf of the SSHD, he accepted that he was unable to identify or advance any viable argument as to why any of these three conclusions of law would be incorrect, or as to why Declarations would be inappropriate to reflect the correct legal position. I was, and am, quite satisfied that Mr Thomann was right to take that course. I announced at the end of the hearing that I had decided to make Declarations, with my reasons to follow in this judgment. I explained that my judgment would also deal with the arguments I had heard about whether to make a Mandatory Order, subject to any appropriate submissions on consequential matters following receipt of a confidential draft judgment. The judgment would also need to deal with Issue (1) Grounds (i)-(iii).
By an Order dated 16 December 2022, and referring to an Advice to Ministers (31.8.22) to which I will return later, I recorded:
UPON the Defendant having disclosed in these proceedings, inter alia, an Advice to Ministers dated 31st August 2022, and the Court being satisfied that the appropriate date for the purposes of Declaration (1) below is 2 weeks (14 September 2022) from the date of that Advice
AND UPON the Defendant by her Counsel not being able to resist the making of the Declarations below, but nor consenting to them
IT IS DECLARED THAT: (1) The SSHD has since at least 14 September 2022 acted unlawfully in failing (i) to review the rate of asylum support under section 95 of the Immigration and Asylum Act 1999 and (ii) to ensure that the rate of asylum support under section 95 of the Immigration and Asylum Act 1999 is adequate to meet the essential living needs of asylum seekers. (2) Unless and until the SSHD increases the rate of asylum support by policy and/or by amendment to regulation 10(2) of the Asylum Support Regulations 2000, the SSHD will be acting unlawfully and in breach of her statutory duty to ensure that the rate of asylum support is necessary to meet the essential living needs of asylum seekers .
Agreed Issue (1) refers to the “reasons set out in the Claimant's Grounds of Challenge”. The Claimant's Grounds for Judicial Review summarised these as follows. Ground (i) (breach of statutory duty): In the context of accelerating inflation, the Uprating Decision represents a significant real-terms cut in the rate of asylum support, in breach of the SSHD's duty to ensure that asylum support can maintain a dignified standard of living. Under Ground (i), the SSHD accepts that the Uprating Decision “requires justification by a careful examination if it is to be defended as rational” (see §36 below). Ground (ii) (breach of Tameside duty of inquiry): In making the Uprating Decision, the SSHD failed to undertake a sufficient inquiry to enable her to make an informed and rational decision as to the rate required to meet the minimum standard, including by failing to consider the most relevant and up to date data as to the impact of price rises on the ability of asylum seekers to meet their essential living needs. Ground (iii) (failure properly to consult): Having committed to holding a consultation with leading voluntary sector groups, the SSHD failed to do so properly, by adopting a new (fundamentally flawed) approach not canvassed during the consultation.
II. CONTEXT
The Claimant
The Claimant is a Nigerian national aged 32 who arrived in the UK in April 2021, accompanied by her three children aged 6, 7 and 8. They are survivors of domestic violence. The eldest child has Cerebral Palsy and Sickle Cell Disease. The Claimant claimed asylum on 22 November 2021 and was housed with her children in temporary accommodation in Liverpool. On 16 December 2021, she was granted asylum support under s.95 and is accommodated by the Home Office in a two-bedroom house in Liverpool. The children attend school and receive free school meals. Since 21 February 2022, the Claimant receives £163.40 per week (£40.85 for her and each of her three children) paid onto a specially issued debit card usable to take out cash and in shops. It was clarified by Mr Thomann at the hearing, and subsequently specifically confirmed (by letter dated 19 December 2022 from Laura Cameron, Head of the Asylum Support Policy Team) that the Claimant is entitled to ‘carry forward’ an unspent balance to the following week.
The Five Cases ( Refugee Action to AXG)
The legal framework applicable to the present case has been laid down in primary and secondary legislation. The way it operates, and the Court's own responsibilities, have been explained by the Courts in previous cases. The parties placed before me five cases in which the Courts have dealt with judicial review claims in respects of aspects of the weekly cash payment in respect of the essential living needs of persons to whom the SSHD has decided to provide s.95 asylum support. These cases provide authoritative guidance for the parties and for me, and reference points which I can gratefully incorporate. The sequence is as follows: R (Refugee Action) v SSHD [2014] EWHC 1033 (Admin) [2014] PTSR Digest D18 (Popplewell J, 9.4.14); R (SG) v SSHD [2016] EWHC 2639 (Admin) [2016] ACD 133 (Flaux J, 24.10.16); R (JK (Burundi)) v SSHD [2017] EWHC 433 [2017] 1 WLR 4567 (on appeal from SG) (CA, 22.6.17); R (JM) v SSHD [2021] EWHC 2514 (Admin) [2022] PTSR 260 (Farbey J, 4.10.21); R (AXG) v SSHD [2022] EWHC 56 (Admin) (Steyn J, 14.1.22).
Statutory Scheme
The statutory scheme can be summarised as follows ( JM §§11–19). Section 115 of the 1999 Act excludes asylum seekers and their dependants from entitlement to most social security benefits. Asylum seekers are also ordinarily prohibited from working while they are waiting for a decision on their claim. Part VI of the 1999 Act prescribes a scheme of support and is accompanied by the Asylum Support Regulations 2000 (SI 2000 No. 704) (the “2000 Regulations”). Under section 95(1) of the 1999 Act, the SSHD may provide or arrange for the provision of support to asylum seekers who appear to the SSHD to be destitute or likely to become destitute within a prescribed period. Destitution is defined by section 95 Act as those who do not have any adequate accommodation or means of obtaining it and those who cannot meet their essential living needs ( SG §6). Although section 95 is expressed as a power to provide support and section 96 as a power to provide accommodation and essential living needs, the powers were treated as duties ( Refugee Action §13, SG §10) on account of the provisions of an EU Directive 2003/9/EC (subsequently recast as Directive 2013/33/EU: see JM §16). The Directive is “retained law” insofar as it confers rights that are “recognised” by a relevant court in a case decided before “exit day” (s.4(2)(b) of the European Union (Withdrawal) Act 2018). It was common ground that, for the purposes of the present case, the Court should proceed on the basis...
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