On 13 December 2023 the Home Office announced that the rates of additional payments made to pregnant asylum seekers and children under 4 years old under Regulation 10A of the Asylum Support Regulations 2000 would be increased in line with the Department of Health and Social Care’s ‘Healthy Start’ scheme. The increase was brought into effect yesterday, 15 January 2024.

This announcement marks the first increase in the rate of additional payments since 2003 and follows a string of challenges to the rate of asylum support in light of the rate of inflation.

Background: The rate of inflation and the asylum support rate

There have been numerous attempts in the High Court to challenge the methodology used by the Home Office to determine the appropriate level of weekly payments to asylum seekers under section 95 Immigration and Asylum Act 1999. This includes the cases of  R (Refugee Action) v SSHD [2014] EWHC 1033 (Admin), R (SG) v SSHD [2016] EWHC 2639 (Admin), R (JK (Burundi)) v SSHD [2017] EWCA Civ 433, R (JM) v SSHD [2021] EWHC 2514 (Admin) and R (AXG) v SSHD [2022] EWHC 56 (Admin). The most recent challenge was CB v SSHD [2022] EWHC 3329 (Admin), which sought to challenge the failure of the Home Office to increase the asylum support rate in light of the rates of inflation.  

In the CB case Mr Justice Fordham held that the Secretary of State’s failure to follow the advice of her own civil servants and increase the main asylum support rate in line with inflation using the established methodology rather than simply relying on an uplift based on the CPI rate, was irrational and unlawful.  

The court made a mandatory order on 21 December 2022 requiring the Home Office to increase the main rate of asylum by 10.1% on an interim basis. Following the judgment, by way of an interim policy announcement, the weekly rate of section 95 support for asylum seekers was increased from £40.85 to £45 per week and from £8.24 to £9.10 per week for individuals in full-board accommodation. Since the judgment in CB, the main asylum support rate has been twice reviewed and adjusted due to high levels of inflation.

The rate of inflation and the regulation 10A support rate

Unlike the well-trodden path of challenges to the main asylum support rate, the issue of the rate of additional payments for pregnant women and young children had not been litigated in court. In light of the CB case, it arguably followed that enhanced payments to pregnant women and young children, similarly impacted by the increasing rate of inflation, should also be adjusted and increased accordingly.

In its report, Report on review of weekly allowances paid to asylum seekers and failed asylum seekers: 2021, 19 April 2022, the Home Office stated that:

[…] The needs of children are not identical to adults, but detailed assessments since 2015 have shown the costs of meeting those needs tend, if anything, to be lower than the costs of meeting the needs of an adult. The flat-payment system therefore results in all family groups, regardless of their size or composition, receiving sufficient funds to cover their essential living needs.

The Home Office therefore appeared to conclude that the increase to the main asylum support rate (then £40.85 per week) was sufficient to encompass the additional essential needs of particular groups such as children. An internal memo, only disclosed during the subsequent litigation, suggested there would be a review.

A brief history: regulation 10A payments

Regulation 10A of the Asylum Support Regulations 2000 was introduced following the judgment in R (T) v SS for Health and SSHD (2003). In this case the High Court held that the Secretary of State’s refusal to provide additional welfare food support to T, an HIV positive asylum seeker and her infant child, under section 96(2) of the 1999 Act was irrational. 

T, as an asylum seeker, was excluded from the then named Welfare Food Scheme which applied to expectant or breast-feeding mothers, children aged under 1 and children aged at least 1 but under 5 in low-income families receiving certain mainstream welfare benefits.  Beneficiaries under the scheme were entitled to tokens for free milk free milk (7 pints), dried milk (infant formula) and vitamins. The vouchers are now provided for under the Healthy Start Scheme and have increased in value over time to reflect the increasing costs of these items.

The additional needs of pregnant women and children under 3 years old

The Home Office’s Asylum Support: Policy Bulletins Instruction states that the Asylum Support (Amendment) Regulations 2003 allow for additional payments to be made to supported women who are pregnant and to children under the age of 3 already in receipt of section 95 support and to those who have made an application where they have been assessed as eligible for support under section 95.

According to the policy bulletin, the purpose of Regulation 10A is “to allow supported asylum seekers to purchase healthy foods.” Though it is not expressly stated it in the policy, it is implied that this cohort have additional essentials needs compared to the average adult asylum seeker.

On 28 April 2023, our client, AJO, was a pregnant women with a 2 year old child being supported by the Home Office under section 95. She issued a judicial review in the High Court challenging the Home Secretary’s ongoing failure to increase the rate of Regulation 10A payments in light of the rate of inflation. She argued that the Home Secretary was in breach of her statutory duty under section 95 to provide adequate support for the essential living needs of eligible pregnant women and children under the age of 3 as well as her statutory duty under 55 of the Borders, Citizenship and Immigration Act 2009 to have regard to the need to safeguard and promote the welfare of affected children. She also argued that the Home Secretary’s ongoing failure to review or increase the Regulation 10A payments was irrational/unreasonable and breached the public sector equality duty under section 149(1) of the Equality Act 2010 for the failure to consider adequately or at all the equality objectives by reference to pregnancy, maternity, sex and age.

In evidence provided in AJO’s case, Rosalind Bragg of Maternity Action, highlighted the particular needs of this cohort:

… pregnant asylum-seeking women are generally acknowledged to be at high risk of poor physical and mental health outcomes. The National Institute for Health & Care Excellence (‘NICE’) has issued guidance that identifies pregnant asylum seekers as having ‘complex social needs’ and recommends additional measures to improve their access to care and support

Ms Bragg further highlighted some of the particular risks to new mothers and children:

Women:

Anaemia, which can occur as a result of inadequate food intake, is considered to be a high-risk disorder in pregnancy which may require attention from an antenatal care provider. The 2022 MBRRACE report stated that ‘an unrecognised poor nutritional state contributed to the deaths of a number of women’, who had become critically unwell during their pregnancy. Some of these women were of ‘potentially normal’ or even raised BMI16 at the time, so may not have been obviously malnourished. Burnie et al (2022) note that: ‘Low BMI is an avoidable cause of low birthweight and preterm birth’.

Children:

Poor diet is … associated with low birthweight, preterm birth, birth defects and slower development. Lack of access to nutritious foods is also thought to have long-term impacts on the social gradient in child development as well as cardiovascular and metabolic health conditions in adulthood, contributing to cyclical adverse impacts on future generations.

The impact of inflation on the rate of additional payments

The additional support rates were £3 for a pregnant woman and a child under 3 years old, and £5 a week for a child under 1. These had not increased at all since their introduction in March 2003, over 20 years ago. Prices of essential food items have increased by approximately 70% overall since 2003 and as a result the value of Regulation 10A payments have been significantly reduced by inflation.

Dr Robert O’Neill, an economist, illuminated the significant cut in real terms in the level of support to meet the basic nutritional needs of this cohort:

In 2023 terms such a payment [of £5] would be worth £2.68 and a payment of (£5×1.8664) = £9.33 would be required to make a payment with equivalent economic value. A payment of £3 in 2003 would be worth £1.61 in 2023 and a payment of £5.60 would be equivalent in 2023 to a payment of £3 in 2003.

In her evidence, Ms Bragg also noted the impact of the inflationary rate on asylum seekers to meet their additional needs:

Low-income families, including asylum seekers, are more heavily impacted by the rising cost of food and non-alcoholic drink. The rates of asylum support mean that women do not have the option of reducing other spending to cover the costs of nutritious food, so it is, in our experience, highly likely that women will have a less nutritious diet as a result, with the associated risks that entails, as above.

The Home Office settled AJO’s claim by agreeing to increase the rates of Regulation 10A support. This increase was implemented on 15 January 2023. The rates have increased by 75% and 90% respectively, from £3 to £5.25 for pregnant women and children under 4 years old (previously 3 years old) and from £5 to £9.50 per week for children under 1 years old.  The Home Office also confirmed that the age of children eligible for the additional payment would be increased to 4 years old from 3 years old.

This uplift is greatly welcomed and represents a huge victory for this vulnerable cohort and for individuals campaigning for the rights of asylum seekers to a dignified and healthy standard of living.

Thank you to Maternity Action and Robert O’Neill for providing importance evidence in DPG’s client’s case.

Sasha Rozansky and Aiya Nakash of Deighton Pierce Glynn instructed Zoe Leventhal KC of Matrix Chambers and Ben Amunwa of The 36 Group.