HA, SXK, K, NY, and AM v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Swift |
| Judgment Date | 21 July 2023 |
| Neutral Citation | [2023] EWHC 1876 (Admin) |
| Court | King's Bench Division (Administrative Court) |
| Docket Number | Case Nos: CO/1599/2022, CO/549/2022, CO/2813/2022, CO/2415/2022, CO/3910/2022 |
[2023] EWHC 1876 (Admin)
Mr Justice Swift
Case Nos: CO/1599/2022, CO/549/2022, CO/2813/2022, CO/2415/2022, CO/3910/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Zoe Leventhal KC and Ben Amunwa for HA, SXK (instructed by Deighton Pierce Glynn)
Alex Goodman KC and Natasha Jackson for K, NY and AM (instructed by Leigh Day) for the Claimants
Catherine Brown and Jack Anderson (instructed by Government Legal Department) for the Defendants
Hearing dates: 6–8 June 2023
Approved Judgment
A. Introduction
Each of these five applications for judicial review concerns the Home Secretary's obligations under the Immigration and Asylum Act 1999 (“the 1999 Act”) and the Asylum Support Regulations 2000 (“the 2000 Regulations”), to provide accommodation and support to meet the essential living needs of asylum claimants.
The primary issue in HA and SXK's application is whether additional support the Home Secretary must provide to pregnant women and children under 3 years old, by reason of regulation 10A of the 2000 Regulations, must be given by way of the cash payment referred to in regulation 10A, or whether the obligation under that regulation can be discharged by provision in kind. When they commenced their claims, both HA and SXK also complained that the Home Secretary had failed to decide their section 95 applications sufficiently promptly and for that reason too, had failed to comply with her obligations under the 1999 Act and the 2000 Regulations. Shortly before the hearing the Home Secretary conceded this part of each claim, and the terms of a consent order have been agreed. K's application arises in circumstances in which there was significant delay by the Home Secretary in deciding an application under section 95 of the 1999 Act. K's claim also concerns the Home Secretary's obligation under section 98 of the 1999 Act to provide temporary support pending decisions on section 95 applications for support. In NY's case the Home Secretary agreed to provide section 95 support but then failed to do anything for several months. Both NY and K also contend that the Home Secretary's failures amounted to a breach of article 3 of the European Convention on Human Rights and claim damages under the Human Rights Act 1998. The last case listed to be heard was brought by AM. Shortly before the hearing, AM and the Home Secretary agreed terms to compromise the claim save for one point: whether the Home Secretary should pay AM's costs of the proceedings assessed on the standard basis or on the indemnity basis. I will address that point at the end of this judgment.
The facts giving rise to each claim occurred in 2021 and 2022. During this period the asylum support system continued to operate under the pressures that had built up during the pandemic period. Ordinarily, before the pandemic, asylum seekers requesting section 95 support would first be provided with initial accommodation, which was full board. This would typically be for a short period, one that corresponded to the time the Home Secretary needed to take a decision on the section 95 application and make different longer-term provision for the asylum claimant in what is referred to as dispersal accommodation. Dispersal accommodation is self-catered accommodation. This sequence fitted with the working assumption made for the purpose of applying the 2000 Regulations that the Home Secretary would meet the costs of essential living needs by a cash payment (now provided through a debit card arrangement, the Aspen card). In practice, therefore, asylum claimants would move through the system for provision of support at a pace that fitted with the Home Secretary's ability to take decisions on section 95 applications.
The pandemic upset that balance; several adverse circumstances combined. The time taken to deal with substantive asylum claims increased. This meant those in dispersal accommodation tended to stay longer in that accommodation. Second, for entirely obvious reasons, from the end of March 2020 the Home Secretary ceased to remove asylum claimants whose claims had failed from dispersal accommodation. In many cases the circumstances of the pandemic prevented removal from the United Kingdom, and in any event, there were clear public health reasons for not removing those concerned from dispersal accommodation notwithstanding that their asylum claims were at an end. Third, it became progressively more difficult to find additional dispersal accommodation. Fourth, the number of asylum claims and claims for asylum support began to rise. The cumulative effect was that the Home Secretary had to place greater reliance on initial accommodation, and the period an asylum claimant was likely to spend in initial accommodation increased dramatically. All this is some context for the problems raised by the Claimants in this litigation.
B. Statutory provisions
Part VI of the 1999 Act contains provisions central to the present claims. By section 95 of the 1999 Act the Home Secretary has a power to provide support for asylum seekers and their dependants if they are either destitute or likely to become destitute within a prescribed period (which, by regulation 7 of the 2000 Regulations, is 14 days). Destitution for this purpose is defined at section 95(3).
“(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.”
It is common ground that the power in section 95 of the 1999 Act is a duty to the extent either section 122 of the 1999 Act or regulation 5 of the Asylum Seekers (Reception Conditions) Regulations 2005 (“the 2005 Regulations”) applies. The former requires the Home Secretary to offer section 95 support if it appears to her either that the essential living needs of a child are not being met or that a child does not have adequate accommodation; the latter requires the Home Secretary, if a section 95 application has been made, to provide support if she thinks the applicant is eligible for support.
Section 96 of the 1999 Act specifies the ways in which support can be provided. These include by providing accommodation the Home Secretary considers “adequate” for the needs of the person concerned and his dependants; or by providing essential living needs (as they appear to the Home Secretary) of the person concerned and his dependants; or by providing both. Regulation 10 of the 2000 Regulations, titled “Kind and levels of support for essential living needs”, is as follows:
“ 10.—Kind and levels of support for essential living needs
(1) This regulation applies where the Secretary of State has decided that asylum support should be provided in respect of the essential living needs of a person.
(2) As a general rule, asylum support in respect of the essential living needs of that person may be expected to be provided weekly in the form of a cash payment of £40.85
(3A) For the purposes of paragraph (1), a decision to grant support is made on the date recorded on the letter granting asylum support to the applicant.
…
(5) Where the Secretary of State has decided that accommodation should be provided for a person by way of asylum support, and the accommodation is provided in a form which also meets other essential living needs (such as bed and breakfast, or half or full board), the amount specified in paragraph (2) shall be treated as reduced accordingly.”
It is common ground that the amount the Home Secretary now pays in respect of essential living needs is £45.00 per week. This has been the position since 20 December 2022; regulation 10(2) has not yet been amended to keep pace. Regulation 10(5) does not anticipate that the relevant reduced amount, paid when accommodation also meets other essential living needs, will be specified in regulations. From time to time since October 2020, the Home Secretary has announced the amount she will pay. As of 27 October 2020, the amount was £8.00 per week; from 21 February it rose to £8.24; and from 22 December 2022 it rose to £9.10. That weekly cash payment (“the regulation 10(5) payment”) is made in respect of essential living needs, other than food and toiletries, identified by the Home Secretary as clothing and footwear, travel, communications, and non-prescription medicines.
Regulation 10A provides for “additional support” for pregnant women and children under 3:
“ 10A.—Additional support for pregnant women and children under 3
(1) In addition to the cash support which the Secretary of State may be expected to provide weekly as described in regulation 10(2), in the case of any pregnant woman or child aged under 3 for whom the Secretary of State has decided asylum support should be provided, there shall, as a general rule, be added to the cash support for any week the amount shown in the second column of the following table opposite the entry in the first column which for the time being describes that person.
…”
The amounts in the table are: £3.00 for a pregnant woman; £5.00 for a child aged under 1 year; and £3.00 for children aged between 1 and 3 years old. Regulation 10A was introduced by the Asylum Support (Amendment) Regulations 2003 (“the Amendment Regulations”) with effect 3 March 2003. The rates in the table have not changed since then.
C. Decision. HA and SXK .
(1) Facts
HA arrived in the United Kingdom on 22 November 2021 with her two children aged 1 and 2. She claimed asylum the same day and from 23 November 2021 HA and her children were provided with full-board accommodation at the...
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