In a powerful judgment given on 21 December 2022, the High Court ordered the Secretary of State for the Home Department to immediately increase the weekly support payments made to asylum seekers to £45. This is the largest ever single increase in the rate of asylum support and is made to reflect the increase in the cost of living during 2022. The case is R(CB) v Secretary of State for the Home Department [2022] EWHC 3329 (Admin).

The decision by the High Court to make an order with wide-ranging financial consequences for the government is constitutionally unusual. It is justified by the clear advice given by civil servants in the Home Office that such a rise is necessary to ensure that asylum seekers can meet their essential living needs.

Background

There is a lengthy history of previous challenges to the methodology used to determine the appropriate level of weekly payments to asylum seekers set out in the judgment. In summary, the issue is quite simple. On 21 February 2022, the standard weekly payment made to asylum seekers entitled to support under Section 95 was increased from £39.63 to £40.85. That represented a 3.1% increase and was based on Consumer Price Index (CPI) inflation in the 12 months to September 2021.

CPI inflation is the default measure of inflation used across government departments. The reliance on the CPI as it stood in September 2021 became increasingly problematic as inflation rose to high levels during 2022. By October 2022, CPI had increased to 11.1%. The decision earlier in the year to up-rate asylum support payments using inflation data from September 2021 meant that payment levels did not take account of the rapidly rising cost of living. In addition, it is now widely argued after campaigns this year by Jack Monroe and other anti-poverty campaigners that people on low incomes effectively face a different level of inflation and are particularly exposed when the price of food increases faster than the general rate of inflation.

Use of CPI v alternative measures

Since 2014, decisions to uplift the level of asylum support have been made using a combined methodology. Expenditure on food is assessed using data from the Office of National Statistics concerning the expenditure of the bottom 10% of the population by income, and other expenditures are assessed using CPI. This meant that when a review was undertaken in 2020, asylum support ended up increasing by around 5%, which was higher than CPI inflation at the time, because food prices had risen faster than CPI. In the decision under challenge in this case, the Secretary of State abandoned her usual methodology and instead uplifted asylum support in line with CPI, which resulted in a much lower increase.

Mr Justice Fordham concluded that the decision to abandon the tried and tested methodology in favour of a straightforward CPI uplift was irrational and unlawful:

“In the circumstances of the present case, faced with the reasons articulated for the Uprating Decision, I cannot – as Flaux J did with the 2014/2015 methodology – find that a reasonable justification is present in the reasons for the Uprating Decision adopting CPI. In the end, the clear reasoned explanation in the decision of the Identified Virtues of the Existing Methodology (§71 above), put alongside the absence of any (still less clear or reasoned) explanation of the greater virtues of CPI, and the absence of any (still less clear or reasoned) explanation of a headroom or overpayment rationale, lead me to conclude that the Uprating Decision lacked the justification by careful investigation which was needed for it to be defended as rational.”

Failure to consider emergency uplift unlawful

The judge also considered the Secretary of State’s failure to make a decision about an emergency uplift to asylum support rates during the course of 2022 in response to rapidly increases in inflation.

By August 2022, Home Office civil servants had prepared an advice for the Secretary of State which set out their concerns that due to inflation there was a risk that the Home Office would breach its legal duty to ensure that asylum seekers are not left destitute. It set out a number of options for addressing the inflation crisis and recommended a one-off payment of £96.24. As the judge pointedly observed, the advice did not consider the possibility that the Secretary of State might do nothing to address the problem. Further advices provided by civil servants in September 2022 and November 2022 were also ignored by the Secretary of State.

The judge concluded that the failure to make a decision for four months after receiving the advice from civil servants was unlawful:

“In my judgment, the failure to consider this issue and make any decision was unlawful. In public law terms this, in my judgment, was an abdication of function. It was a failure to take into account relevant matters (cf. Refugee Action §117); a failure to consider matters (cf. Refugee Action §118); a failure to take into account a significant factor which the [Secretary of State] was bound to take into account (cf. Refugee Action §131). The context includes that: (a) the [Secretary of State] (as she accepts) owes an ongoing duty; (b) the CPI increases and BOE forecasts were (as the [Secretary of State] accepts) plainly relevant; and (c) an interim review had been undertaken by officials and was put for a decision. Passivity was unlawful.

…

Officials had not in ATM8.22 expressly put forward a “do nothing” option. I am confident that, had one been set out, it would have said “unlawful”, as it was subsequently (§51 below). Mr Thomann for the SSHD has been unable to put forward any possible defence of the failure of the [Secretary of State] to make a decision, or the failure of the [Secretary of State] to increase income support. There is none.”

Mandatory order

Unusually, the Court then went on to make a mandatory order requiring the Secretary of State to uplift the asylum support rate to £45, in line with the most recent advice from civil servants. The Secretary of State agreed to make the uplift immediately. The use of a mandatory order in this instance illustrates that when it comes to the minimum amount of asylum support necessary to meet essential living needs, the Secretary of State has no discretion. The Court can effectively determine for itself the question of whether the minimum amount has been met. There might be some controversy around the judge having effectively treated the advice provided by civil servants as determinative on this point.

Consequences

As always where a judgment is highly critical of the Home Office, it will be interesting to see if the Secretary of State launches an appeal. If left unchallenged, the judgment in this case will make it difficult for the Secretary of State to disagree with advice provided by her civil servants where she considers that a lower uplift in asylum support is appropriate. The government might even look to pass legislation to create a statutory framework around asylum support uplift decisions, similar to that which applies to mainstream benefits and pensions uplift decisions, in order to insulate the Secretary of State from legal challenges.

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