Section 95 asylum support rates held lawful and rational

Weekly payments of asylum support set by the Secretary of State for the Home Department under section 95 of the Immigration and Asylum Act 1999 using a methodology devised following the Refugee Action case complied with the Reception Directive (2003/9/EC).

R (SG and Ors) v Secretary of State for the Home Department, the Equality and Human Rights Commission intervening [2016] EWHC 2639 (Admin) (Flaux J), 24 October 2016

Three conjoined claims for judicial review challenged decisions by the Secretary of State setting level of weekly support payments to asylum seekers pursuant to section 95 Immigration and Asylum Act 1999.

Three decisions were under challenge:

1. Decision post-dating Refugee Action ([2014] EWHC 1033 (Admin)) to maintain the level of weekly support to single adult asylum seekers at £36.62 per week;
2. 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 £36.65 per week with effect from 6 April 2015;
3. Decision announced on 16 July 2015 pursuant to reduce the level of support payable with respect to child dependants of asylum seekers to the same rate used for adults, namely from £52.96 to £36.95 per week. The decision is given effect to by the Asylum Support (Amendment) (No 3) Regulations 2015.

Grounds of challenge were broadly:

1. Failure to carry out a proper enquiry in making the 2014 decision;
2. Failure to comply with the Reception Directive;
3. Discrimination as between child dependants of asylum seekers and children of nationals in receipt of Income Support in breach of Article 14 ECHR and / or Article 21 of the Charter of Fundamental Rights of the EU;
4. Failure to provide for recreational needs of child dependants of asylum seekers;
5. Decision of 2015 is irrational, unlawful on account of a failure to carry out a proper enquiry and / or in breach of section 55 Borders Citizenship and Immigration Act 2009;
6. Breach of section 149 of the Equality Act 2010 in respect of the 2015 decision.

Each of the three claimants advanced their case slightly differently and Flaux J’s judgment deals with conclusions on each case separately.

The basis of dismissal of all three claims are as follows:

1. Subject to the minimum standard required by the Reception Directive being achieved, it is a matter for judgment of the Secretary of State what needs are to be regarded as essential living needs, and it is only open to review on traditional public law grounds: [37], [139]
2. Any entitlement to asylum support for dependants derives from Regulations assed to comply with the UK’s obligations under the Reception Directive whereas those with a right to remain here and who need social assistance will receive mainstream benefits for themselves an their children under an entirely separate statutory scheme. That the level of weekly support is different for these two groups of families is not discriminatory: [235]-[238]; [327]-[328]. There has been no breach of section 149 Equality Act 2010: [329]-[335].
3. Even if it were necessary to justify difference in treatment between asylum seekers and their dependants and those on Income Support, the Secretary of State can justify that difference because (i) there is a legitimate purpose in settling rates that would discourage economic migration and ensure limited financial resources are not expended on providing asylum support in excess of the UK’s obligations under the Reception Directive and what the Secretary of State assesses as ‘essential living needs’; and (ii) the difference in treatment is justified as between those children with right to remain and those who have no established right to remain: [241]-[243].
4. Although all claimants asserted that the asylum support rate of £36.62 in 2014 and £36.95 in 2015 fails to comply with the minimum standard under the Directive, there is no evidence from the general cohort of able-bodied asylum seekers that they cannot maintain a dignified standard of living on the basis of the overall support they are receiving: [141], [253]-]258]
5. In order to establish if the amount paid is insufficient, it would be necessary to establish exactly what it was spent on over some considerable period of time. Spend diaries for short periods of time provide little assistance since some purchases will last some time: [144]. Itemised consideration of cost of children’s food and clothing does not alter the conclusion as to the rationality of the rate: [253]-[258] (food and non-alcoholic drinks), [262]-[270] (clothing); [271]-[275] (toiletries, cleaning, medicine); [276]-[277] (travel); [278] (communications).
6. Reduced rates for dependant children are justified: [281]-[282]
7. Fact that additional payments for exceptional needs are available under s96(2) as part of the overall system of support demonstrates that the rate of weekly support for essential living needs under s96(1)(b) need only be set at a level which ensures a dignified standard of living for the general cohort of asylum seekers: [146].
8. Applying the approach of scrutinising specific cost of items does not change the conclusion that the rate is not unlawful or irrational: [147]-[169].
9. The level of support is not so low that it imposes an intolerable burden of the asylum seeker pressuring her to abandon her claim and thereby impinging on her procedural rights under Article 18 of the Reception Directive: [170].

Full judgment: http://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWHC/Admin/2016/2639.html&query=([2016])+AND+(ewhc)+AND+(2639)+AND+((Admin))