In the case of JM v Secretary of State for the Home Department [2021] EWHC 2514, the High Court has held that the government failed to cater for asylum seekers’ essential living needs during the pandemic. 

The court found that JM, who was housed in a hotel during the COVID pandemic with no cash support, was deprived of the means to communicate with his friends and family. By not providing him with support “in cash or kind” under section 95 of the Immigration and Asylum Act 1999, the Home Office acted unlawfully in failing to have regard to one of his essential living needs.

Section 95 support and the pandemic

Despite the wording of section 95 (“may provide support” etc), it has been interpreted as imposing a duty on the Home Office to provide a minimum level of support for destitute asylum seekers to meet their “essential living needs”. This comes in the form of self-catering accommodation and a cash payment of £39.63 a week (which is less than half the standard rate of Universal Credit for a single adult over 25).

During the pandemic, the already chaotic asylum support system came under intense pressure. Thousands of asylum seekers were accommodated in unfit housing such as dilapidated army barracks and hotels. 

Many hotel residents who were eligible for full section 95 support were instead provided with support under section 98, normally only for those waiting for their section 95 applications to be processed. As such, many asylum seekers entitled to cash payments did not receive them, in part due to the Home Office’s baseless assumption that their needs were being met by the hotels themselves. Documents disclosed during the proceedings showed that ministers maintained the decision to withhold cash payments despite advice to the contrary from senior Home Office officials. 

What are “essential living needs”?

Mrs Justice Farbey considered that the means to communicate was not in itself an essential living need, but maintaining interpersonal and social relationships was, and that required the means to communicate. As such, the Home Office was duty-bound under section 95 to make provision for this. By making no arrangements, it had failed to have proper regard for that duty.

One argument the Home Office advanced in its defence was that asylum seekers often entered the country in possession of a mobile phone and so that need had already been met. Farbey J thought this missed the point (as would everyone who has ever run out of credit) given the realities of fleeing persecution:

The defendant’s position that most asylum seekers have smartphones fails in my judgment to have regard to the situation of genuine refugees fleeing persecutors. A person who flees out of fear may be expected not to delay his or her departure to gather material resources. He or she may not have time to make plans about what possessions to bring on what may be a perilous journey… in public law terms, the defendant has failed to have regard to a relevant factor, namely the logic of a system that may leave genuine refugees without the ability to communicate even if other [asylum seekers] may be able to do so.

It is striking how little officials actually knew about what was happening at accommodation providers on the ground. The court was critical of the Home Office for its poor understanding and shoddy preparation. Witness evidence asserting the ample provision of phones and wifi had to be retracted and replaced. Other evidence related to an entirely different accommodation provider and did not assist the court at all.

On this the judge stated:

The defendant has had ample opportunity to gather evidence for these proceedings. I am not prepared to infer from the partial picture presented to me that [asylum seekers] have been given adequate access to a mobile phone for the essential purpose of maintaining social relationships. Any such inference would in my judgment amount not to judicial restraint in entering the territory of factual assessment in judicial review proceedings but to judicial indulgence of a party’s failure to provide evidence.

Small sums, massive impact

The judgment also sheds some light on how the Home Office decides the rate of asylum support payments, which remain shockingly low. For instance, the judgment gives a breakdown of the section 95 cash allowance as of February 2020:

• Food and drink: £26.49
• Toiletries/Healthcare/Household cleaning items: £1.52
• Clothing including footwear: £2.90
• Travel: £4.50
• Communications: £3.52
• Total: £38.93
• Adjustment for inflation at 1.7%: £39.60.

Tiny though these amounts may be, they make a big difference to destitute asylum seekers, and this decision may leave the Home Office open to thousands of claims for backdated payments.