In the recent judgment R (HA and Ors) v SSHD [2023] EWHC 1876 (Admin) the High Court (Swift J) found that the Home Secretary failed to meet even her minimalist legal obligations to provide support to destitute asylum seekers. The details of the case make shocking reading, even for those familiar with the modern Home Office.

The background  

Under section 95 of the Immigration and Asylum Act 1999, the Home Secretary is under a legal duty to provide destitute asylum seekers with accommodation and/or financial support to meet their essential living needs. The statute does not specify how quickly the Home Secretary must, firstly, assess whether an applicant is destitute, or secondly, provide support to eligible applicants.

Because many applicants will need emergency support whilst waiting for an assessment decision, the Home Secretary is also under a “section 98” duty to provide temporary support (accommodation and/or financial) to asylum seekers who appear to be destitute.

At the time the claim was lodged, many applicants were waiting several months to receive an eligibility decision. At the same time, the Home Secretary would only exercise her emergency section 98 powers in a limited form, namely via the offer of hotel accommodation.  She would not provide cash payments to meet the essential living needs of those who did not require accommodation.

Once positive eligibility decisions were made, applicants were having to wait many more months to receive the support they were entitled to. Together, the situation was leaving asylum seekers in desperate circumstances.

In addition to the ordinary amount of weekly financial support provided to asylum seekers, regulation 10A of the Asylum Support Regulations 2000 requires that additional financial support be provided for pregnant mothers and young children who have positive eligibility decisions to account for their additional nutritional needs. The amount is set at £3 for pregnant mothers and children aged one to three and £5 for children aged under one. However, the Home Secretary was refusing to provide this additional financial support to individuals in hotels, instead claiming the additional needs were met in kind by the hotels. This was despite multiple reports detailing the extremely poor provisions in hotels.

Claimants HA and SXK were refused regulation 10A payments whilst in their hotels and challenged these decisions. Claimants K, NY and AM challenged the delays in the Home Secretary determining their s.95 eligibility, providing s.98 financial-only support in the interim and/or the delays in providing s.95 support once eligibility decisions were obtained.

Issue 1: Applications have to be decided ‘promptly’

Swift J held that the delay in processing K and NY’s applications for s.95 support was unreasonable and incompatible with the Home Secretary’s duties to decide an application “promptly”: [35], [48], [63].  

He held that while

“the obligation to take section 95 decisions promptly cannot be equated to a set period of time that applies in all cases […]  what promptness requires for this purpose is that section 95 applications are decided by the Home Secretary within a short period following an applicant’s first contact with Migrant Help. […]. In all cases the Home Secretary and those she has contracted with must act promptly; in most cases a decision ought to be taken within 10 days” [37]. 

This means that in cases where an applicant fails to receive an eligibility decision within 10 days from first contact with Migrant Help, the Home Secretary may have acted unlawfully under the Act. As many applicants are currently waiting much longer than this, further claims for unlawful delay are to be expected unless the Home Office reforms its current practices. 

Issue 2: Immediate steps must be taken to provide support to eligible applicants

Once an eligibility decision is made, Swift J remarked in respect of the time-frame for providing support:

“…given the nature of a section 95 decision, which is an acceptance that the applicant is, or is soon to be, destitute, the necessary inference is that once a decision has been made steps towards making section 95 provision will start immediately and will be pursued efficiently.” [49]

No suggested time-frame was provided, but, given the test for destitution looks at a period of up to 14 days, we consider support should be provided within a very short time-frame, and any unjustifiable delay by the Home Secretary may be unlawful. In NY, the Court ruled there had been an unreasonable delay, and the Home Secretary also admitted this pre-trial in AM.

In the course of litigation, it transpired that one of the causes of delay in NY’s case was the operation of an unlawful practice by which the Home Secretary would only send out an ASPEN card to eligible applicants who had applied from private accommodation once they were placed in dispersal accommodation. This meant no steps were taken to provide support following a positive eligibility decision in cases of this sort.

To make matters worse, it was also revealed that the Home Secretary operated another unlawful practice of prioritising applicants in initial accommodation in terms of allocating very limited dispersal accommodation. Therefore, individuals like NY had little chance of dispersal, meaning they would also be left without financial support for extensive periods. The Home Secretary continues to operate this prioritisation practice in a slightly modified, and published, form.

Issue 3: Temporary financial support has to be considered under section 98

Swift J found that the Home Secretary’s section 98 practices were also unlawful. He stated

“It is obvious there will be occasions where the provision of support for essential living needs outside accommodation provided by the Home Secretary better suits the circumstances of the applicant” [51]

This applied to one of the claimants, whose children were going to school near their private accommodation.  

Swift J held that under section 98 the Home Secretary has the power to make financial-only payments; that the Home Secretary should in circumstances where the section 95 decision had been delayed, consider exercising that power; and, in circumstances such as those of K’s case, ought to have made some provision to meet essential living needs by way of temporary financial support.

This marks a radical shift from her current practices. It is now open to asylum seekers to apply for financial-only support from private addresses under section 98 if there are delays in the processing of their section 95 applications. If the Home Secretary refuses to consider exercising her powers in this way, it maybe unlawful and subject to challenge.

Issue 4: Additional financial support for pregnant mothers and children under three

Swift J found that, as a matter of statutory construction, regulation 10A required the Home Secretary to meet the additional nutritional needs of pregnant mothers and children under three with cash payments. It was not open to the Home Secretary to meet those needs in kind.

In the alternative, Swift J found that, in the claimants’ cases, the hotels were not meeting their additional nutritional needs in kind so they should have received cash payments in any event.

The Home Secretary will now need to make these additional payments. Questions will be asked as to whether affected parties are owed backpayments for missed payments.

Comment

The case is a shocking one. Asylum support exists to prevent destitute asylum seekers from becoming street homeless or unable to meet their basic needs. Were the systems for providing this support breakdown, or rendered ineffective by unlawful policy, the stakes are extremely high. As Swift J noted, the claimants faced an existence “which was in many ways wretched, particularly for a young child who went without on many occasions”, where the parent was “reduced to asking in shops for leftover food” and the children became “lethargic” and “visibly thinner”.

The implications of Swift J’s judgment are clear: the Home Secretary has been failing to meet the most basic needs of extremely vulnerable asylum seekers and wholesale systems changes are now required. It is sincerely hoped that the Home Secretary will heed this judgment and take her duties towards destitute asylum seekers seriously.

By Klara Ipek and John Crowley of Leigh Day, who represented three of the claimants (in regards to issues 1-3). Deighton Pierce Glynn represented the other two claimants in respect of the final issue on support for pregnant mothers and children under three.

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