R (on the application of Refugee Action) v The Secretary of State for the Home Department [2014] EWHC 1033 (Admin)

A claim was brought in the interests of all asylum seekers by ‘Refugee Action’, a charity that supported and worked with refugee communities in the UK. The Refugee Action charity applied for judicial review of the Secretary of State’s decision to freeze the level of cash payments to meet the basic living costs of asylum seekers for the 2013/2014 financial year at rates which had applied since 2011. C sought judicial review on the following grounds:

(1) The Secretary of State’s estimate of the current rates of asylum support were incompatible with her obligations under EU law, and were therefore irrational. No sufficient investigation has been conducted into the level of support necessary to meet the essential living needs; the Secretary of State had taken account of irrelevant considerations and/or material errors of fact, and also failed to take account of relevant considerations.

(2) The Secretary of State had breached her public sector equality duties (“PSED”) under s. 149 of the Equality Act 2010.

(3) The Secretary of State had breached her duty towards children under Section 55 of the Borders, Citizenship and Immigration Act 2009.

A rolled up hearing of the application for permission, followed immediately by the substantive hearing, if permission was granted, was ordered.

Popplewell J concluded that only the first and third grounds needed to be considered, as they alone were sufficient to quash the Secretary of State’s decision. A decision on the second ground involved seeking to reconcile potentially conflicting decisions of two courts, and, in light of the conclusions made in the other grounds in the immediate case, it was preferred that the question within the third ground was left for a case that required resolution.

(1)    First ground

The High Court held that the Secretary of State’s decision to freeze the level of cash payments was unlawful.

The determination of what was ‘essential’ and whether something was a ‘need’, when assessing the necessary level of cash payments, involved a value judgment that was conferred on the Secretary of State by Parliament. Despite the fact that judgment was only reviewable on the high threshold of Wednesbury unreasonableness or other established public law grounds, EU Directives still needed to be abided by when making a decision on this. The Secretary of State’s authority here was checked by the Reception Directive, which provided minimum conditions that needed to be reached when satisfying a minimum standard of living. As this minimum standard of living was an objective standard, which the Secretary of State failed to reach when determining the level of cash payments for the 2013/2014 financial year, the decision was both irrational and unlawful.

Firstly, the Secretary of State had wrongly failed to include the following categories of essential living needs in setting the level of cash support:

a.     Essential household goods (for example, washing powder, cleaning materials and disinfectant);

b.     Nappies, formula milk and other special requirements of new mothers, babies and very young children;.

c.     Non-prescription medication;

d.     The opportunity to maintain interpersonal relationships and a minimum level of participation in social, cultural and religious life;

Furthermore, the government had failed to consider whether the following were essential living needs in the provision of asylum support:

a.     Travel by public transport for the purpose of meeting with legal advisors (where these transportation fees were not covered by legal aid);

b.     Telephone calls to maintain contact with families and legal representatives, and for necessary communication to profess their asylum claims (such as with legal representatives, witnesses and others who may be able to assist with obtaining evidence regarding the claim);

c.     Writing materials (where necessary) for communication purposes and as an education resource for children.

Therefore, the Secretary of State did not gather sufficient information to satisfy the ‘rationality’ requirements. The Secretary of State had erred in failing to carry out the investigations and inquiries that were required to gather the necessary information for reaching a reasoned decision regarding the level of cash payments. By wrongly omitting a number of key considerations from the assessment process, the Secretary of State had failed to make reasonable enquiries. Consequently, there was no rational basis for sufficiently justifying the level of support that the Secretary of State deemed adequate, and therefore the Secretary of State’s decision was Wednesbury unreasonable.

The Court also held that the Secretary of State had taken into account a number of irrelevant considerations when deciding to freeze the level of cash payments for the 2013/2014 financial year. For instance, the Secretary of State irrationally assumed that the inflationary rate for essential income was zero; the Secretary of State had failed to explain the increasing gulf between asylum support rates and income support, and had wrongly used the ‘£10 Red Cross food parcels’ as a comparator when determining the appropriate level of cash payments.

(2)    Third ground

The decision to pay lower levels of cash payments to 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.

The first ground that the Secretary of State relied upon was the fact that, by paying a lower amount to 16-17 year olds, this mitigated against the artificiality of the potential ‘bright line’ demarcation between ‘under 18 year olds’ and ‘over 18 year olds’. However such ‘artificiality’ was questioned by the Court, who pointed to the use of the same demarcation in Section 105(1) of the Children Act 1989, Section 55(6) of the Borders and Immigration Act 2009, the UN Convention on the Rights of the Child and Article 24 of the EU Charter. Whilst the Secretary of State had legitimate grounds for accounting for the fact that older children and younger children had different needs, the mere fact that they were closer to becoming adults than other children could not form a rational ground for paying 16-17 year olds less than other children. This was inconsistent with the Secretary of State’s duty to safeguard and promote the welfare of children (Section 55 of the Borders and Immigration Act 2009).

The second ground used by the Secretary of State was that whilst there were higher costs associated with schooling for 16-17 year olds, education for them was not compulsory, and therefore a lower level of cash payment could be justified. At the time of the decision, attendance at school was compulsory until 30th June in the school year in which a child turned 16 (Section 8 of the Education Act 1996). However, following the Education and Skills Act 2008 Part I (brought into force on 28th June 2013), education or training became compulsory for all 17 year olds (from September 2013). As it was within the Secretary of State’s reasonable expectations that the relevant statutory changes would have been brought in for the 2013/2014 financial year, when she made the decision on rates for this year, the Secretary of State had misdirected herself as to the legal position, because the majority of 16-17 year olds would have been subject to compulsory full-time education then.

Conclusion

Permission was granted, the application succeeded, and the decision was quashed and was to be reconsidered in light of this judgment.

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