United Kingdom judicial review finds Home Secretary acted unlawfully in setting payments to meet essential living needs of asylum seekers

Date: 
Friday, April 11, 2014

In Refugee Action, R (On the Application Of) v The Secretary of State for the Home Department [2014] EWHC 1033 (Admin) (09 April 2014), the High Court of England and Wales declared unlawful the UK government’s decision to freeze the level of cash payments to meet the essential living needs of asylum seekers for 2013/2014 at the rates which had applied since 2011. The High Court agreed with the Applicant, ECRE Member Refugee Action, that the government had failed to take into account relevant essential living needs in the provision of asylum support, and had failed to gather sufficient information to enable a rational judgment to be made. The weekly cash support for asylum seekers must now be reconsidered in light of the judgment.

Asylum seekers in the UK are excluded from most social security benefits and are ordinarily prohibited from working pending the determination of their claim. Instead, under section 95 of the Immigration and Asylum Act 1999, the government may provide support to asylum seekers without accommodation and unable to meet other essential living needs.

Alongside free accommodation, healthcare and education services, support for essential living needs is met by weekly cash payments. From 2000 to 2007, asylum support was increased proportionately to Income Support rates. From 2008 to 2011, asylum support increased in line with price inflation, at a lower rate than before. Since 2011, there has been no increase in weekly asylum support levels, which have remained at £36.62 for a single adult, £72.52 for couples, £43.94 for lone parents, £39.80 for 16 & 17 year olds, and £52.96 for children under 16.

The High Court ruled that the Home Secretary, when setting the level of cash payments, had erroneously failed to take into account (1) certain essential household goods, (2) special requirements of new mothers, (3) non-prescription medication and (4) ‘the opportunity to maintain interpersonal relationships and a minimum level of participation in social, cultural and religious life’ [117]. She also failed to consider whether it is an essential living need to (1) travel by public transport to attend appointments with legal advisors, (2) make telephone calls to maintain necessary contact with families and legal representatives, and (3) purchase writing materials for communication and for the education of children [118].

At [158], the Court concluded further flaws: (1) She [the Home Secretary] erroneously treated the rates as being increased by 11.5% from their 2007 levels; (2) She failed to identify and take into account the extent of the decrease in rates in real terms since 2007; (3) She misunderstood or misapplied information which she treated as important in reaching her decision ... (4) She failed to take reasonable steps to gather sufficient information to enable her to make a rational judgment in setting the asylum support rates for 2013/2014; (5) She failed to understand that a majority of 16 and 17 year olds would be subject to compulsory full time education for the school year 2013/2014.

According to government data, at the end of December 2013, the number of asylum seekers in receipt of section 95 support in the UK was 23,459.

The Court also reviewed the decision in light of the EU Reception Conditions Directive. Article 13(2) requires the provision of ‘material reception conditions to ensure a standard of living adequate for the health of applicants and capable of ensuring their subsistence’. However, the Court’s conclusions were adopted only on the basis of domestic law.

Read the judgment of the High Court, and Refugee Action’s press release and judgment briefing.


11 April 2014

This item was reproduced with the permission of ECRE from the weekly ELENA legal update supported by the Fundamental Rights and Citizenship Funding Programme and distributed by email. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE, the IRC or its partners.

Keywords: 
Material reception conditions
Reception conditions
Tags: 
UK