The present Government has declared its intention to create a ‘hostile environment’ for migrants. True to its word, the Go Home vans, the ‘papers please’ raids on public transport hubs, the targeting of foreign students, the increasingly demented bureaucracy of the immigration rules and the harsh family migration rules are all delivering on that pledge. Perhaps as part of that campaign, Theresa May decided in June 2013 to maintain a freeze on the level of support for destitute asylum seekers in the UK.

The High Court has now held in the case of R (On the Application Of Refugee Action) v The Secretary of State for the Home Department [2014] EWHC 1033 (Admin) that was an irrational decision that abysmally failed to take into account the real needs of that destitute group of vulnerable individuals.

The case was brought by Refugee Action on behalf of the 20,000 or so affected individuals. It is the kind of case the ‘Justice’ Secretary wants to prevent in future by means of the Criminal Justice and Courts Bill 2014 by threatening charities and NGOs with hefty legal costs even in public interest cases such as this. Note the Government’s chilling submission at paragraph 152 of the judgment: that because there had been no legal challenge to decisions to freeze payments in previous years, such decisions must therefore be lawful. This is a government that wants to be judge and jury, so to speak.

The evidence of various NGOs and charities was that the existing level of support for asylum seekers was causing real hardship, including missing meals and parents prioritising feeding their children over themselves, women being unable to afford sanitary protection, pregnant and nursing mothers being unable to afford a healthy and balanced diet, asylum seekers struggling to buy adequate clothing, particularly during the winter months, or to replace items of clothing and shoes when they wear out and many asylum seekers struggle to buy adequate toiletries or household cleaning products, and non-prescription medications.

This evidence was dismissed by the Secretary of State as being merely ‘anecdotal’ and therefore to be disregarded – unlike the Secretary of State’s reports of visits to asylum accommodation, on which the Secretary of State rather hypocritically placed reliance.

In a comprehensive judgment, Popplewell J holds that the Secretary of State failed on a number of fronts to conduct a lawful and rational assessment of the real needs of destitute asylum seekers.

The court held that the Secretary of State had failed to factor into the assessment of the level of support necessary the following essential living needs:

(1) Essential household goods such as washing powder, cleaning materials and disinfectant.
(2) Nappies, formula milk and other special requirements of new mothers, babies and very young children.
(3) Non-prescription medication.
(4) The opportunity to maintain interpersonal relationships and a minimum level of participation in social, cultural and religious life.

Further, the Secretary of State had failed to consider whether the following were essential living needs:

(1) Travel by public transport to attend appointments with legal advisors, where this is not covered by legal aid.
(2) Telephone calls to maintain contact with families and legal representatives, and for necessary communication to progress their asylum claims, such as with legal representatives, witnesses and others who may be able to assist with obtaining evidence in relation to the claim.
(3) Writing materials where necessary for communication and for the education of children.

Popplewell J also calls out the Home Office for reliance on dodgy statistics, in this case that asylum support rates had increased by 11.5% when in reality they had decreased by 11%. This was described by the judge as “erroneous and misleading”.

In assessing whether the decision to freeze rates was based on relevant and not irrelevant considerations, Popplewell J holds that the Secretary of State irrationally assumed that the inflationary rate for essential items was zero, failed to explain the increasing gulf between asylum support rates and income support, the comparison against the Office For National Statistics data on the income needs of the poorest 10% of the UK population was flawed as that data omitted some essential living expenses. the use of £10 Red Cross food parcels as a comparator was wrong and the Secretary of State failed to gather the evidence needed to make a rational judgment.

The decision to pay lower support for 16 and 17 year old children was held to be unlawfully discriminatory, in breach of the duty to promote the welfare of children and irrational.

While the judge rejects some aspects of Refugee Action’s case, the judgment is a damning one. One is left with the impression of senior civil servants and ministers with no compassion and no care for the highly vulnerable individuals supported by the asylum system. Nevertheless, the Home Office is considering whether to appeal and today the Immigration Minister James Brokenshire tells us that the levels are not ‘ungenerous’. In the meantime, Refugee Action is pressing on with the #bringbackdignity campaign.

Interested in refugee law? You might like Colin's book, imaginatively called "Refugee Law" and published by Bristol University Press.

Communicating important legal concepts in an approachable way, this is an essential guide for students, lawyers and non-specialists alike.

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