Sumaya Ghulam and Others v Secretary of State for the Home Department Equality and Human Rights Commission (Intervener)

JurisdictionEngland & Wales
JudgeThe Hon. Mr Justice Flaux
Judgment Date24 October 2016
Neutral Citation[2016] EWHC 2639 (Admin)
Docket NumberCase Nos: CO/4853/2014, CO/4885/2015 & CO/587/2016
CourtQueen's Bench Division (Administrative Court)
Date24 October 2016

The Queen (on the application of)

Between:
(1) Sumaya Ghulam
(2) K
(3) YT & RG
Claimants
and
Secretary of State for the Home Department
Defendant

and

Equality and Human Rights Commission
Intervener

[2016] EWHC 2639 (Admin)

Before:

The Honourable Mr Justice Flaux

Case Nos: CO/4853/2014, CO/4885/2015 & CO/587/2016

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Rolls Building

7 Rolls Building

Fetter Lane

London EC4A 1NL

Manjit Singh Gill QC, Ramby De Mello & Tony Muman (instructed by Bhatia Best Solicitors) for the 1 st Claimant

Stephen Knafler QC & Zoe Leventhal (instructed by Birmingham Community Law Centre) for the 2 nd Claimant

Martin Westgate QC & Ranjiv Khubber (instructed by Platt Halpern) for the 3 rd Claimants

Clive Sheldon QC, James Cornwell & Joseph Barrett (instructed by the Government Legal Department) for the Defendant

Caoilfhionn Gallagher (instructed by the Equality and Human Rights Commission) for the Intervener

Hearing dates: 5 th, 6 th, 7 th and 8 th July 2016

Approved Judgment

The Hon. Mr Justice Flaux

Introduction

1

These three conjoined claims for judicial review all challenge decisions by the Secretary of State setting the level of weekly support payments to asylum seekers pursuant to sections 95 to 98 of the Immigration and Asylum Act 1999 ("the 1999 Act"). The impugned decisions all follow the decision of Popplewell J in R (Refugee Action) v SSHD [2014] EWHC 1033 (Admin). In that case, which forms an important part of the background to the present case and which will need to be looked at in some detail hereafter, the Court quashed the decision of the Secretary of State in June 2013 that the weekly support payments for the 2013/2014 year should remain frozen at the rate of £36.62 per week, which had applied since 2011.

2

The decisions currently impugned are:

(1) The decision on 11 August 2014 (four months after the judgment in Refugee Action) to maintain the level of support payable to single adult asylum seekers at £36.62 per week, albeit that the Secretary of State maintains that that decision was reached using a different methodology to that employed in 2013, of which Popplewell J had been critical in a number of respects. That decision ("the 2014 Decision") is challenged in Ghulam.

(2) The decision on 8 April 2015 pursuant to the Asylum Support (Amendment) (No. 2) Regulations 2015 to increase the rate for single adult asylum seekers from £36.62 to £36.95 per week with effect from 6 April 2015. That decision is also challenged in Ghulam, essentially on the same basis as the challenge to the 2014 Decision.

(3) The decision announced on 16 July 2015 to reduce the level of support payable with respect to child dependants of asylum seekers from £52.96 to £36.95 per week, the same rate as for adults. That decision was given effect to by the Asylum Support (Amendment) (No. 3) Regulations 2015. That decision ("the 2015 Decision") is challenged in K and in YT and RG.

3

In broad summary, what is alleged by the claimants is that the Secretary of State:

(1) Failed to carry out a proper enquiry in making the 2014 decision.

(2) Failed to comply with Directive 2003/9/EC laying down minimum standards for the reception of asylum seekers.

(3) Discriminated as between the child dependants of asylum seekers and the children of nationals in receipt of Income Support, in breach of Article 14 of the European Convention on Human Rights ("ECHR") and/or Article 21 of the Charter of Fundamental Rights of the European Union.

(4) Failed to provide for the recreational needs of the child dependants of asylum seekers.

(5) Acted irrationally, failed to carry out proper enquiry and/or was in breach of section 55 of the Borders, Citizenship and Immigration Act 2009 in reaching the 2015 Decision.

(6) Was in breach of the Public Sector Equality Duty ("PSED") under section 149 of the Equality Act 2010 in respect of the 2015 Decision.

4

Permission to apply for judicial review was granted in Ghulam on 9 out of 11 grounds by Holman J at an oral permission hearing on 10 February 2015, following refusal on paper by Blake J. One of the grounds on which permission was refused by Holman J was discrimination. Permission to apply for judicial review in K was granted by Cheema-Grubb J on 6 January 2016, who also ordered that the case be heard with Ghulam. YT and RG was ordered to be heard on a rolled-up basis with the other two cases by me at a Case Management Conference on 15 March 2016. Permission for the Equality and Human Rights Commission ("EHRC") to intervene in K was granted by Soole J on 12 May 2016.

5

At the outset of the present hearing, in an application supported by the EHRC, Mr Martin Westgate QC on behalf of YT and RG applied to amend the grounds raised by them to add further grounds of challenge: (i) to add to the existing claim for breach of the PSED a further "protected characteristic" under section 149 of the Equality Act 2010 of sex to the existing one of disability and (ii) to challenge the entire system of exceptional support under section 96(2) of the 1999 Act. This application was resisted by Mr Clive Sheldon QC on behalf of the Secretary of State. I allowed permission in respect of the additional argument under section 149, but on the basis that the Secretary of State should be at liberty to put in further evidence which was done by way of Mr Bentley's sixth witness statement dated 7 July 2016. I refused permission in respect of any attempt to launch a systemic attack on the Secretary of State's approach to section 96(2).

Overview of asylum support and the legislative framework

6

Popplewell J undertook a detailed analysis of the history of asylum support in the Refugee Action judgment which I do not propose to repeat here. For present purposes, the points to be highlighted are as follows. Asylum support is limited to those who are destitute, defined by section 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. When an asylum seeker applies for support, and a decision is made to grant such support, accommodation is provided, at no cost to the asylum seeker, under section 96(1)(a) of the 1999 Act. Utility bills and council tax are met by the accommodation provider. The accommodation includes basic furniture and household equipment (cooker, fridge, washing machine, cooking utensils, crockery and cutlery). Cots and high chairs are provided for young children and sterilising equipment for babies under twelve months.

7

In addition, the asylum seeker receives a weekly cash payment under section 96(1)(b) of the 1999 Act to meet essential living needs such as food and clothing for him or herself and dependants, as set by the relevant Regulations and it is those weekly cash payments which are the subject of the present challenges. However, it is important to note at the outset that this is not the only means by which the UK discharges its obligations to asylum seekers. In addition to the accommodation support provided in kind and the weekly cash payments, asylum seekers have free access to the NHS. They obtain free prescriptions, dental care, eye tests and glasses. They are reimbursed reasonable costs of travel to and from hospital for scheduled appointments. They benefit from free access to libraries.

8

Child dependants of asylum seekers are also entitled to free state education for those aged between 5 and 18, free early years childcare of at least 15 hours a week for 38 weeks of the year for children aged between 2 and 5, free school meals in term time and free transport to and from school up to the age of 16, where the school is outside the statutory walking distance or in certain other circumstances. They may also benefit from discretionary schemes run by local authorities in certain areas such as free or concessionary travel on public transport and grants for the purchase of school uniforms.

9

The relevant provisions of the 1999 Act are as follows:

"94(1) In this Part:

"asylum-seeker" means a person who is not under 18 and has made a claim for asylum which has been recorded by the Secretary of State but which has not been determined;

"claim for asylum" means a claim that it would be contrary to the United Kingdom's obligations under the Refugee Convention, or under Article 3 of the Human Rights Convention, for the claimant to be removed from, or required to leave, the United Kingdom;

(5) If an asylum-seeker's household includes a child who is under 18 and a dependant of his, he is to be treated (for the purposes of this Part) as continuing to be an asylum-seeker while—

(a) the child is under 18; and

(b) he and the child remain in the United Kingdom.

"95.(1) The Secretary of State may provide, or arrange for the provision of, support for—

(a) asylum-seekers, or

(b) dependants of asylum-seekers,

who appear to the Secretary of State to be destitute or to be likely to become destitute within [14 days]

……..

(3) For the purposes of this section, 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.

(4) 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.

……

(7) In determining, for the purposes of this section, whether a person's other essential living needs are met, the Secretary of State—

(b) may not have regard to such matters as may be prescribed for the purposes of...

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