R Refugee Action v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | The Hon. Mr Justice Popplewell |
| Judgment Date | 09 April 2014 |
| Neutral Citation | [2014] EWHC 1033 (Admin) |
| Docket Number | Case No: CO/8523/2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 09 April 2014 |
[2014] EWHC 1033 (Admin)
The Hon. Mr Justice Popplewell
Case No: CO/8523/2013
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Dinah Rose QC, Alison Pickup and Ben Silverstone (instructed by the Migrants' Law Project, Islington Law Centre) for the Claimant
Clive Sheldon QC and Deok-Joo Rhee (instructed by Treasury Solicitors) for the Defendant
Hearing dates: 11, 12, 13 February 2014
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
This is an application for judicial review of the Defendant's decision, announced to Parliament on 6 June 2013, that the level of support provided in cash to meet the essential living needs of asylum seekers for the financial year 2013/2014 should remain frozen at the rates which had applied since 2011. Such support is provided pursuant to sections 95 to 98 of the Immigration and Asylum Act 1999 ("the 1999 Act"). The weekly amounts are set out in Regulations 10(2) and 10A of the Asylum Support Regulations 2000 ("the AS Regulations 2000").
The claim is brought in the interests of all asylum seekers by the Claimant, which is a charity established in 1981 to support and work with refugee communities in order to facilitate the successful resettlement in the UK of refugees and asylum seekers. In recent years it has been funded predominantly by the Defendant in order to provide advice and assistance to asylum seekers at regional centres, with the remainder of its income coming from charitable grants and individual donations.
It is worth emphasising at the outset that the question is not what the Court considers to be the appropriate amount to meet the essential living needs of asylum seekers. That judgment does not lie with the unelected judges, but is vested by Parliament in the elected government of the day. The latter's decision can only be challenged on well recognised public law principles.
Judicial review is sought on the following grounds:
(1) The Defendant's decision that the current rates of asylum support are sufficient to meet the essential living needs of asylum seekers is incompatible with her obligations under EU law and in any event is irrational. No sufficient investigation has been conducted into the level of support necessary to meet essential living needs. In taking the decision the Defendant has taken account of irrelevant considerations and/or material errors of fact, and has failed to take account of relevant considerations.
(2) The Defendant has breached her public sector equality duties ("PSED") under s. 149 of the Equality Act 2010.
(3) The Defendant has breached her duty towards children under s. 55 of the Borders, Citizenship and Immigration Act 2009.
A rolled up hearing of the application for permission, with the substantive hearing to follow immediately if permission is granted, was ordered by Kenneth Parker J on 23 August 2013.
An overview of support for asylum seekers
Unaccompanied children seeking asylum are supported outside the regime of the 1999 Act and are not the subject matter of this challenge. This case is concerned with support for adult asylum seekers and their dependant children.
Section 115 of the 1999 Act excludes asylum seekers and their dependants from entitlement to most social security benefits, including income support, disability related benefits, social fund payments and child benefit. Asylum seekers are ordinarily prohibited from working while they are waiting for a decision on their claim; they may apply for permission to work if they have been waiting for 12 months or more for an initial decision from the Defendant; if permission to work is granted, it is restricted to employment in one of the Defendant's list of shortage occupations and they are not permitted to engage in business or self-employed activities (paragraphs 360–360B of the Immigration Rules HC395).
Asylum support is limited to those who are "destitute", defined in s. 95 of the 1999 Act as those who do not have any adequate accommodation or means of obtaining it and those who cannot meet their essential living needs. Support is provided to those who apply for it and who are determined by the Defendant to meet the eligibility threshold of destitution.
Such asylum seekers are eligible for support under the 1999 Act throughout the period for which they are in this country, but a different regime applies before the determination of their asylum claim to that which applies after determination. If the determination grants refugee status, or they are otherwise given leave to remain, they are normally eligible for mainstream benefits. If the determination rejects their asylum claim, after exhaustion of rights of appeal, they may receive support under s. 4 of the 1999 Act for so long as they remain in the country as failed asylum seekers, but only if there is some good reason why they are unable immediately to leave the UK. Section 4 support for failed asylum seekers is set at a lower rate than the amounts provided pursuant to sections 95–98 to those awaiting a decision. Those lower s. 4 rates for failed asylum seekers are not within the scope of the present challenge, which, with one qualification, is confined to the support provided whilst asylum claims are awaiting determination. The qualification arises by reason of s. 95(4) of the 1999 Act which provides that failed asylum seekers who have dependant children under the age of 18 continue to receive support under the s. 95 regime rather than at the lower rate pursuant to s. 4. Therefore the asylum seekers whose support is under consideration in this case are adults and dependant children awaiting final determination of their asylum claims, and additionally failed asylum seekers who still have dependant children under 18, for so long as they remain within the country. I shall use the slightly inaccurate epithet "asylum seekers" to refer to both categories.
Although this support for asylum seekers is temporary, it is often required for a substantial period. On 27 February 2013, Mark Harper MP, then Minister for Immigration, gave the average time which asylum seekers spend on s. 95 support as 525 days. The most recent statistics I was given were that, of the 13,412 asylum applicants who came off s. 95 support in 2013, about 42% had been on it for less than 6 months, 15.5% for 6 to 12 months, 15% for 1 to 2 years, and 27.5% for over 2 years.
When an asylum seeker first applies for support, as a general rule full board accommodation is provided in Initial Accommodation Centres (pursuant to s. 98 of the 1999 Act) while there is a consideration of the support application. Once a decision has been made to grant support under s. 95, the person is then dispersed to accommodation. All accommodation provided under the 1999 Act is provided on a "no choice" basis. Accommodation of families with children is normally provided in separate houses or flats, whilst single adults, couples, and in some cases lone parents, are accommodated in shared houses. Utility bills and council tax are met by the accommodation provider. The accommodation includes the provision of basic furniture and household equipment such as a cooker, washing machine, refrigerator, cooking utensils, crockery and cutlery. Cots and high chairs are provided for young children, and sterilising equipment for babies under 12 months.
In addition the asylum seeker receives weekly cash payments to meet additional living expenses such as food and clothing in the amounts set out in Regulation 10(2) (and Regulation 10A where applicable) of the AS Regulations 2000. Where accommodation is provided which includes provision of some meals, weekly cash payments may be reduced accordingly: Regulation 10(5) of the AS Regulations 2000. It is these cash payments whose amount is the subject matter of the present challenge. It is important to emphasise, however, that this is only one part of the support which is provided to asylum seekers by the State. In addition to the accommodation support provided in kind, asylum seekers are also provided with access to healthcare, education and other community care support, pursuant to powers and duties conferred on local authorities and other organs of the State. For example, asylum seekers have free access to primary healthcare and are exempt from charges for secondary care in the NHS (Regulation 4(1)(c) of the National Health Service (Charges to Overseas Visitors) Regulations 1989. Those in receipt of asylum support are automatically issued with HC2 certificates entitling them to free prescriptions, reasonable costs of travel to and from hospital for scheduled appointments under the care of a consultant (and certain other medical appointments requiring an additional journey) where they have been referred by a doctor or dentist, and free dental treatment and sight tests. I shall return to the scope of the support which falls outside the 1999 Act later in this judgment.
When originally enacted, s. 95 of the 1999 Act gave the Defendant a power to provide support to destitute asylum seekers, but imposed no duty to do so, although s. 122 imposed a duty to provide support where a destitute asylum seeker's household included a child who did not have adequate accommodation or the means of...
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