R SATU v London Borough of Hackney
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SCHIEMANN,LORD JUSTICE KEENE,LORD JUSTICE KAY,LORD JUSTICE SIMON BROWN |
| Judgment Date | 06 December 2002 |
| Neutral Citation | [2002] EWCA Civ 1843,[2002] EWCA Civ 1451 |
| Docket Number | C/2002/0898,C1/02/0898 |
| Court | Court of Appeal (Civil Division) |
| Date | 06 December 2002 |
[2002] EWCA Civ 1451
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
DIVISIONAL COURT
(MR JUSTICE KENNEDY)
Royal Courts of Justice
Strand
London, WC2
Lord Justice Schiemann
C/2002/0898
MR S KADRI QC (instructed by Aaronson & Co) appeared on behalf of the Applicant.
The Defendant did not appear and was not represented.
Friday, 4 October 2002
Before me is an application for permission to appeal from a judgment of the Divisional Court [2002] EWHC 952 (Admin), which relates to the support given to asylum seekers. I propose to give permission to appeal, not because I am convinced that the appeal would have a real prospect of success; but I do so because there seems to me to be another reason why the appeal should be heard.
The argument addressed to me by Mr Kadri QC today is one that was not addressed to the Divisional Court at all. I have found it difficult to follow at times but it is to the effect that the Asylum Support (Interim Provisions) Regulations 1999, Statutory Instrument No.3056 were made ultra vires the Immigration and Asylum Act 1999.
The applicant is a lady who was an asylum seeker. Her claim for asylum has now been finally determined and has failed. However, it is submitted that under section 94(5) it is provided that if an asylum-seeker's household includes a child who is under 18 he is to be treated as continuing to be an asylum seeker while the child is under 18 and he and the child remain in the United Kingdom. As I understand it the appellant falls into this category; so it is said she is an asylum seeker. She has been awarded payments by the Local Authority under the 1999 Regulations (to which I have referred).
The factual problem is this. As I understand it the amounts which are awarded under that legislation are less both than the regime which appertained before that legislation came into force and under the regime which is effective under the Asylum Support Regulations Statutory Instrument No.704, which came into force on 3rd April 2000 and which have been amended, so far as the rates are concerned, by the Asylum Support (Amendment) Regulations 2000 Statutory Instrument No.3053, and more recently by the Asylum Support (Amendment) Regulations 2002 Statutory Instruments 492. It is said that the payments fall short of what the lady would get under the new regulations.
The argument as to ultra vires is based on section 95(13) of the Immigration and Asylum Act 1999, which provides that schedule 9 makes temporary provision for support for the period before the coming into force of this section. Now, that seems at first complicated, but we learn from section 170(3) that section 95(13) came into force on the passing of this Act. The remainder of that section has, I am told, come into force at various dates thereafter in 2000. The argument is that whereas schedule 9 in principle allows the making of regulations such as the interim provisions regulations, those should be dealing only until the period before the coming into force of this section, whereas in fact they appear to cover more than this interim and thus this lady is caught by having a smaller payment than would be the amount to which she would be entitled either under the new regulations which are generally applicable, or under the old statutes which appertained prior to the coming into force of the interim regulations. That is one argument.
It is buttressed by two factors. One is a series of quotations from various government ministers sponsoring the 1999 Act, to the effect that asylum seekers would not be worse off in general terms under the new regulations than under the old, and at the time, I think it was envisaged that the interim period would only be a matter of two to four months; whereas it seems now to be in this lady's case for two to four years on-going. The other buttress is some dicta, I think one cannot put it higher than that, of Newman J in a case called R v Derby County Council ex parte Bajric Crown Office reference CO/1139/2000, decided on 14 August 2000, to the effect that when one compares the Interim Regulations with the 2000 Regulations one sees that they both stem from the same Act and it is unlikely that what was envisaged was that the end result would not be the same.
For my part I see some force, so far as this last point is concerned, in the comments of the Divisional Court about it, but I think it right to give Mr Kadri leave to advance the argument before the full court.
Despite adjourning the case from yesterday I have still not had in front of me a clear written exposition of the argument which Mr Kadri wishes to advance, and so it is conceivable that I have misrepresented it in part. I require that the argument be placed in writing so that its validity will be more easily tested. I shall give permission to appeal.
I shall order the case to come on before three Lords Justices not before the end of this October, but as soon as possible thereafter, because this will affect quite a number of people, and uncertainty is bad in this area. I apprehend that the hearing of the case will, if proper skeleton arguments are furnished on each side, not take longer than half a day. I order that the claimant serve her skeleton argument within the next ten days on the London Borough of Hackney, and I order that it also be served on the Treasury Solicitor, since she may receive instructions to defend the validity of the statutory instrument.
(Application granted; no order for costs).
[2002] EWCA Civ 1843
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(KENNEDY LJ and NELSON J)
Lord Justice Simon Brown
(Vice President of the Court of Appeal, Civil Division)
Lord Justice Kay
Lord Justice Keene
C1/02/0898
MR S KADRI QC and MR R KHUBBER (instructed by Aaronson & Co, London SW5 9BA) appeared on behalf of the Appellant
MR A UNDERWOOD QC and MR K RUTLEDGE (instructed by Hackney Directorate of Law & Probity, London N11 0ZH) appeared on behalf of the Respondent
MR P HAVERS QC and MR S RAHMAN (instructed by the Treasury Solicitor) appeared for the Interested Party
This appeal raises principally a short but important point about the lawfulness of the regulations concerned with the interim support scheme for asylum-seekers. In broad terms the scheme requires local authorities to provide financial support and accommodation for asylum-seekers who appear to be destitute or likely to become so in the very near future. There is now also in operation a more permanent scheme under which the Home Secretary is responsible for providing support for destitute asylum-seekers and their dependents. To that end there has now been established the National Asylum Support Service ("NASS") to whom applications for support have to be made by certain new asylum applicants. The two schemes are intended to provide support specifically for asylum-seekers instead of leaving them to claim more generally available benefits under the National Assistance Act 1948 and the Children Act 1989.
Camara Satu is an asylum-seeker who arrived in the United Kingdom in December 1995. Her claim for asylum was refused in 1998. An appeal by her against that refusal has been determined, but the claim against the authority continues under section 94(5). A daughter was born to her in December 1996 and a son in April 1999. From 6 December 1999 assistance previously given to her under the Children Act 1989 was provided under the interim support scheme by the London Borough of Hackney ("Hackney"). However, in 2001 solicitors on her behalf complained that she was receiving a lower level of financial support than would be provided by NASS. Hackney reviewed the rates it paid in comparison with those paid by other local authorities and NASS but by letter dated 17 August 2001 it stated that it was not required automatically to pay NASS rates and that it considered the level of support being provided to be sufficient for the family's essential needs.
The appellant sought to change that decision by way of judicial review. Permission to do so was refused on the papers but granted after an oral hearing on one ground only, namely,
"whether the Defendant is entitled to set a rate under Asylum Support Interim Provisions Regulations 1999 for 'essential living needs' which is designedly less than the rate payable under the Asylum Support Regulations 2000 for persons eligible for assistance from NASS."
The Divisional Court before whom this matter came answered that question in the affirmative. Kennedy LJ (with whom Nelson J agreed) concluded that a local authority was not required to pay NASS rates and that a claimant could only succeed by showing that the rate paid cannot have been one which appeared to the local authority to meet the essential needs of a claimant and his or her dependents. The evidence did not establish that. The claim was therefore dismissed by the Divisional...
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R PO and Others v The Council of the London Borough of Newham
...of local conditions, prices or services available from the local authority and others, having regard to the decisions in R (Satu) v the London Borough of Hackney [2002] EWHC 952 (Admin) at [20]-[25] and [2002] EWCA Civ 1843 at [25]. But he also accepted that child benefit was not intended ......