R (Secretary of State for the Home Department) v Asylum Support Adjudicator
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE HOLMAN |
| Judgment Date | 16 May 2006 |
| Neutral Citation | [2006] EWHC 1248 (Admin) |
| Date | 16 May 2006 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/10382/2005 |
[2006] EWHC 1248 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2
MR JUSTICE HOLMAN
CO/10382/2005
MISS N GREANEY (instructed by Treasury Solicitor) appeared on behalf of the CLAIMANT
MRS W OUTHWAITE (instructed by Treasury Solicitor) appeared on behalf of the DEFENDANT
I am indebted to each of Miss Greaney, on behalf of the Secretary of State, and Mrs Outhwaite, on behalf of the Asylum Support Adjudicator, for their clear and helpful arguments today.
This is an application by the Secretary of State for the Home Department for judicial review of three decisions by asylum support adjudicators. In each case, the asylum support adjudicator was considering an appeal to him or her by an appellant who was a "failed asylum seeker", in relation to whom officials of the National Asylum Support Service had decided that he/she was ineligible for support under the relevant statute and regulations. In each case, the asylum support adjudicator allowed the appeal and substituted for the earlier decision on behalf of the Secretary of State, a decision that the respective appellant is entitled to the provision of support.
It is clear that the Secretary of State considers that, in the approach of asylum support adjudicators to cases of this kind, there is or may be a pervasive error, and accordingly this application is brought, in part, as a test case.
It is convenient if I first set out the relevant framework of legislation and regulations. Next, I will venture some observations on the proper approach to the construction and application of the Act and regulations. I will then consider the facts of each of the three cases and the reasons of the respective asylum support adjudicator, identifying (anticipating the overall outcome of this case) the ways in which I feel they fell into error.
The underlying statute is the Immigration and Asylum Act 1999. It is convenient first to refer to section 95(1), which empowers the Secretary of State to 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 likely to become destitute".
That section accordingly makes provision in relation to people who are current "asylum seekers" or their dependants. The essential test for the provision of support is that it appears to the Secretary of State that the person or his dependant is "destitute or likely to become destitute".
Provision in relation to people whose claim for asylum has already been determined or adjudicated upon and rejected (ie "failed asylum seekers") is contained within section 4(2) of the Act. That provides as follows:
"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."
Pausing there, sub-section (2) is permissive. It provides that the Secretary of State "may provide …". It identifies the category of people to whom he may provide it, but does not otherwise give any indication as to the test or approach to be applied in deciding whether actually to provide accommodation.
Sub-section (5) provides as follows:
"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 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."
Thus, sub-section (5) contemplates that regulations may be made which will specify the criteria to be used, and that the criteria specified in any regulations will be conscientiously applied both by the Secretary of State and by any asylum support adjudicator on appeal from the Secretary of State.
The regulations
The relevant regulations are The Immigration and Asylum (Provision of Accommodation to Failed Asylum-Seekers) Regulations 2005 (SI 2005/930). These were made on 24 March 2005 and came into force on 31 March 2005. Although the principal Act was enacted in 1999, I have been told that these are the first such regulations to be made specifying criteria for the purpose of section 4(5).
The regulations are made in exercise of powers conferred upon the Secretary of State by section 166(3) of the Act, and also by section 4(5) itself. The only regulation to which it is necessary to refer for the purposes of this case is regulation 3. That provides as follows:
"3 (1) Subject to regulations 4 and 6 [which are not germane to this case], the criteria to be used in determining the matters referred to in paragraphs (a) and (b) of section 4(5) of the 1999 Act in respect of a person falling within section 4( 2) or (3) of that Act are-
(a) that he appears to the Secretary of State to be destitute, and
(b) that one or more of the conditions set out in paragraph 2 are satisfied in relation to him."
Pausing there, section 4 itself of the Act does not make reference to the state of being destitute, but clearly the effect of sub-paragraph (a) of the regulation is to import in relation to failed asylum seekers the criterion that applies by section 95 of the Act in the case of current asylum seekers, that the person in question appears to the Secretary of State to be destitute. But whereas no additional criterion appears within section 95, these regulations, made pursuant to section 4, add in relation to failed asylum seekers the further criterion that one or more of the conditions set out in paragraph 2 of regulation 3 are also satisfied in relation to him. In other words, as one would indeed expect, when contrasting the position of a failed asylum seeker with a current asylum seeker, the regulations are more restrictive.
Paragraph 2 provides as follows:
"(2) Those conditions are that-
(a) he is taking all reasonable steps to leave the United Kingdom or place himself in a position in which he is able to leave the United Kingdom, which may include complying with attempts to obtain a travel document to facilitate his departure;
(b) he is unable to leave the United Kingdom by reason of a physical impediment to travel or for some other medical reason;
(c) he is unable to leave the United Kingdom because in the opinion of the Secretary of State there is currently no viable route of return available;
(d) he has made an application for judicial review of a decision in relation to his asylum claim … [And other conditions in relation to judicial review that are not germane to this case]; or
(e) the provision of accommodation is necessary for the purpose of avoiding a breach of a person's Convention rights within the meaning of the Human Rights Act 1998."
This case and the three appeals with which I am concerned all relate to condition (b) and no other condition.
The guidance document
My attention has rightly been drawn also to a document headed "Policy Bulletin 71, section 4 of the Immigration and Asylum Act 1999", which was issued on 31 March 2005 by or on behalf of the Secretary of State. The first paragraph of the policy bulletin defines its purpose and scope as being:
"To provide guidance to NASS staff, accommodation providers, one stop services and applicants' representatives on the criteria that a failed asylum seeker must meet to qualify for support under section 4 of the … 1999 Act, and the conditions under which this support shall be provided."
As those words make plain, this is a "guidance" document and cannot be a substitute for the underlying Act and regulations themselves. But since guidance is designed to help a range of people on both sides of the divide (that is, both NASS staff and also applicants' representatives), it is clearly a document of some importance.
Paragraph 5.3 of the document states:
"If the NASS caseworker is satisfied that a person applying for support under section 4 is destitute, they must then determine whether the person meets one or more of the conditions set out in 3.1(i)-(v) above [which in turn reproduces the conditions in regulation 3(2)]. In making this determination, the NASS caseworker shall consider any supporting evidence submitted by the applicant. The NASS caseworker shall be satisfied that a person meets a relevant condition if the following evidence is available …
(ii) Physical impediment to travel or other medical reason: a letter from the applicant's doctor stating in clear terms that the person is unfit to travel, and the date by which the person is expected to be able to do so. General letters detailing medical treatment that the applicant is receiving will not normally be sufficient to establish that the person is unfit to travel. If a woman applies for support under section 4 on the grounds that she is in the late stages of pregnancy and is therefore unable currently to leave the UK, she should provide a MATB1 form, if available, or other recent medical documentation confirming pregnancy and stating the expected date of delivery. If a woman has a new-born child under six weeks old and is therefore unable currently to leave the UK, she should provide a copy of the child's long birth certificate, if available, or medical documentation stating the child's birth date."
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