The Queen (on the application of KMI) v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lewis,Mr Justice Garnham |
| Judgment Date | 03 March 2021 |
| Neutral Citation | [2021] EWHC 477 (Admin) |
| Docket Number | Case No: CO/309/2021 |
| Date | 03 March 2021 |
| Court | Queen's Bench Division (Administrative Court) |
[2021] EWHC 477 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Lewis
and
Mr Justice Garnham
Case No: CO/309/2021
Simon Cox and Daniel Clarke (instructed by Deighton Pierce Glynn Solicitors) for the Claimant
Alan Payne Q.C., Ben Keith and Saara Idelbi (instructed by Government Legal Department) for the Defendant
Hearing date: 11 February
APPROVED JUDGMENT
Lord Justice Lewis and Mr Justice Garnham handed down the following judgment of the Court:
Introduction
The Claimant, who has the benefit of an anonymity order and is known in these proceedings as “KMI”, is a failed asylum seeker. He has commenced judicial review proceedings against the Defendant, the Secretary of State for the Home Department (“the Secretary of State”). First, the Claimant seeks to challenge the Secretary of State's decision to refuse his own application for accommodation and support under s. 4 of the Immigration and Asylum Act 1999 (“the 1999 Act”). Second, he seeks to challenge the Defendant's policy to refuse to provide accommodation under s.4 during the Covid-19 public health emergency to all destitute former asylum seekers who do not make a voluntary departure from the UK. He also seeks a declaration that in adopting the policy the Defendant acted unlawfully.
The Claimant also sought interim relief requiring the defendant to provide him with accommodation pursuant to s.4 of the 1999 Act pending the determination by the First-Tier Tribunal (Social Entitlement Chamber) (“AST”) of his appeal against the refusal of accommodation. By an order dated 27 January 2021, Chamberlain J granted interim relief on consideration of the papers alone requiring the Defendant provide the Claimant with accommodation within London Zones 1–6 from 2 p.m. on 28 January 2021 (the time by which accommodation was to be provided was subsequently varied).
Pending resolution of his application for permission to apply for judicial review, the Claimant seeks interim relief in one or other of two forms. He seeks what was described as “class interim relief” by way of an order requiring the Secretary of State either:
(i) to offer accommodation under s.4 of the 1999 Act to any person who applies for such accommodation whom she considers to be a destitute failed asylum seeker; or alternatively
(ii) to offer accommodation under s.4 to persons with a pending appeal to the AST from a decision of hers to refuse such accommodation, in which she does not dispute that the person is a destitute failed asylum seeker.
As is clear from the terms of the order sought, that interim relief did not apply to persons who were parties to this claim for judicial review. Rather it was intended to apply to classes, or categories, of persons described in the abstract. Chamberlain J declined to grant such interim relief on the papers and directed a hearing noting that whether “class interim relief is appropriate at all, or is appropriate on the facts of this case, are issues of potentially wider significance”.
In the event, neither party made detailed submissions on the jurisdiction to grant such interim relief, or the circumstances in which such interim relief would be appropriate. Rather, both parties approached the issue on the basis of the usual approach to interim relief in cases where an order is sought by a party to proceedings against another party to those proceedings, namely whether there was a serious issue to be tried and, if so, whether the balance of convenience, having regard to the wider public interest, favoured the grant or refusal of interim relief.
At the close of the hearing, which was conducted remotely on 11 February 2020, we indicated that we would refuse both those applications. We did not consider that it was appropriate on the facts of this case to grant interim relief to persons who were not parties. We did recognise, however, that there was a need to put in place an urgent, and stream-lined process, for persons in a similar situation to the Claimant to be able to make an application for interim relief before issuing a claim for judicial review. The order we made, therefore, included the following:
“It is DIRECTED that:
…The High Court will, until further order, be prepared to consider urgent applications, before the issuing of a claim for judicial review, for interim relief in the following category of individual cases: Any appellant to the First-Tier Tribunal (Social Entitlement Chamber) (“FTT”) who has given notice of appeal, in accordance with rule 23 of the Tribunal Procedure (First-Tier Tribunal) (Social Entitlement Chamber) Rules 2008, against a decision of the Defendant refusing support under section 4 of the Immigration and Asylum Act 1999 (“section 4 support”) whom the Defendant accepts is destitute.
We indicated we would give our reasons for that order in writing subsequently. We now set out those reasons.
The Legal Framework
The Statutory Scheme
Section 4 of the 1999 Act provides, so far as material, that:
“(2) 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…
(5) 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 of 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…
(10) The Secretary of State may make regulations permitting a person who is provided with accommodation under this section to be supplied also with services or facilities of a specified kind.
(11) Regulations under subsection (10)–
(a) may, in particular, permit a person to be supplied with a voucher which may be exchanged for goods or services,
(b) may not permit a person to be supplied with money,
(c) may restrict the extent or value of services or facilities to be provided, and
(d) may confer a discretion.”
Section 95(3) of the 1999 Act provides:
“(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.”
This definition of “destitute” is adopted for cases under s. 4 by the Immigration and Asylum (Provision of Accommodation to Failed Asylum-Seekers) Regulations 2005 (“Accommodation Regulations”), reg. 2. In exercise of the power under s. 4(5), reg. 3 provides:
“Eligibility for and provision of accommodation to a failed asylum-seeker
(1) Subject to regulations 4 and 6, 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.
(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–
(i) in England and Wales, and has been granted permission to proceed pursuant to
Part 54 of the Civil Procedure Rules 1998, …
(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.”
Under reg. 2 of the Accommodation Regulations, “destitute” has the meaning given in s.95(3) of the 1999 Act:
“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.”
Rule 8 of the Tribunal Procedure (First-Tier Tribunal) (Social Entitlement Chamber) Rules 2008 (S.I. 2008 No. 2685) provides so far as is material:
“(3) The Tribunal may strike out the whole or a part of the proceedings if—…
(c) the Tribunal considers there is no reasonable prospect of the appellant's case, or part of it, succeeding.
(4) The Tribunal may not strike out the whole or a part of the proceedings under paragraph ( 2) or (3)(b) or (c) without first giving the appellant an opportunity to make representations in relation to the proposed striking out.
(5) If the proceedings, or part of them, have been struck out under paragraph ( 1) or (3)(a), the appellant may apply for the proceedings, or part of them, to be reinstated.
…
(7) This rule applies to a respondent as it applies to an appellant except that— (a) a reference to the striking out of the proceedings is to be...
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