ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
(MR M SUPPERSTONE)
Strand, London, WC2A 2LL
B e f o r e :
(SIR ANTHONY MAY)
LORD JUSTICE SULLIVAN
LORD JUSTICE GROSS
| The Queen on the Application of
MK & ANR
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
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Mr David Blundell and Mr Ben Lask (instructed by the Treasury Solicitor) appeared on behalf of the Respondent.
Crown Copyright ©
Lord Justice Sullivan:
"I am prepared because of our poverty to live in a room separate from her with vouchers, but obviously I would prefer to live with her and have vouchers only."
In a letter written in support of his appeal, the North of England Refugee Service said:
"The above has been refused section 4 support. Although he is living with his partner, who is nine months pregnant and cannot afford to support him, he would prefer vouchers only and to live in his current accommodation with her, but section 4 seems reluctant to issue vouchers only. He is prepared to live separately but in the same area."
"You must reside at the accommodation provided to you, and must not be absent without the permission of the Secretary of State from the accommodation for more than seven consecutive days and nights, or for more of a total of 14 days and nights in a six-month period."
"(a) What is the meaning of the term 'provide or arrange for the provision of facilities for the accommodation of a person under section 4 of the Immigration and Asylum Act 1999?'
(b) Did the Defendant fetter her discretion and/or act rationally and/or without due regard to s.55 of the Borders, Citizenship and Immigration Act 2009, by only considering the provision of accommodation pursuant to the UKBA 'target contract' and not supporting the Claimants' desire to live as a family in one's property?
(c) Was the Defendant's decision to provide separate accommodation for the 1st claimant so that he had to live apart from his wife and child if he took it up incompatible with the Claimants' Convention rights (and those of their child) under Articles 8 and/or 14 of ECHR?"
The answer to the first of those issues is, at least potentially, of some wider significance. If the respondent's answer to the second issue had been that she had no discretion to "provide or arrange for the provision of facilities for the accommodation" of a person under section 4 otherwise than pursuant to UKBA's target contract, that would also have raised an issue of wider importance. However, that is not the respondent's answer to the second issue. As the judge said in paragraph 36 of his judgment, following the institution of judicial review proceedings UKBA did consider whether it would be appropriate for the respondent to enter into contractual arrangements with the second appellant's existing landlord, having regard to the appellant's particular circumstances. UKBA concluded that it would not be appropriate.
Issue (a): the Statutory Framework
"(2) The Secretary of State may provide, or arrange for the provision of, facilities for the accommodation of a person if—
(a) he was (but is no longer) an asylum-seeker, and
(b) his claim for asylum was rejected.
(4) The following expressions have the same meaning in this section as in Part VI of this Act (as defined in section 94)—
(b) claim for asylum, and
(5) The Secretary of State may make regulations specifying criteria to be used in determining—
(a) whether or not to provide accommodation, or arrange for the provision of accommodation, for a person under this section;
(b) whether or not to continue to provide accommodation, or arrange for the provision of accommodation, for a person under this section.
(6) The regulations may, in particular—
(a) provide for the continuation of the provision of accommodation for a person to be conditional upon his performance of or participation in community activities in accordance with arrangements made by the Secretary of State;
(b) provide for the continuation of the provision of accommodation to be subject to other conditions;
(c) provide for the provision of accommodation (or the continuation of the provision of accommodation) to be a matter for the Secretary of State's discretion to a specified extent or in a specified class of case.
10. The Secretary of State may make regulations permitting a person who is provided with accommodation under this section to be supplied also with services or facilities of a specified kind.
(11) Regulations under subsection (10)—
(a) may, in particular, permit a person to be supplied with a voucher which may be exchanged for goods or services,
(b) may not permit a person to be supplied with money,
(c) may restrict the extent or value of services or facilities to be provided, and
(d) may confer a discretion."
"(1) Support may be provided under section 95—
(a) by providing accommodation appearing to the Secretary of State to be adequate for the needs of the supported person and his dependants (if any);
(c) by providing what appear to the Secretary of State to be essential living needs of the supported person and his dependants (if any)."
"Whether the Secretary of State has the power to make payments (by way of vouchers) to a recipient of section 4 support who is living in a mixed household, i.e. with a person entitled to work and receive social security and housing benefits, and access public housing."
It should be noted that vouchers are now, to a large extent at least, replaced by a pre-payment card system, but the change is not relevant for present purposes.
"(1) The defendant has misinterpreted the scope of his powers to provide assistance under section 4. First, he submits that, even if the defendant is correct that he cannot provide support for essential living needs unless he also arranges accommodation, he does not need to enter into the kind of highly structured and formal arrangements that he has put in place. Nothing stops him from entering into an arrangement with the second claimant such that the family can continue to reside together without the need to provide further separation accommodation. Second, and in any event, where an applicant already has access to accommodation but requires assistance with subsistence needs in order to make use of it, then the defendant may provide the necessary subsistance assistance even if he does not also provide or arrange for the provision of separate accommodation."
In paragraphs 25 and 35 of the judgment, the judge concluded that there was no power under section 4 to provide voucher support on a "stand-alone" basis: that is to say, without the provision of accommodation. He also concluded in paragraph 35 that section 4 did not give the respondent power to enter into any of the "informal arrangements proposed on the claimant's behalf". It seems that the proposed informal arrangement, as put to the judge, was that the respondent would simply obtain the second appellant's consent for the first appellant living with her (she having the benefit of the tenancy of the accommodation in which they both lived). It was submitted that if the respondent did that, then she would have "arranged" for the provision of accommodation for the first appellant for the purposes of section 4, and so would be able to provide him with vouchers. In paragraph 30 of the appellant's skeleton argument, Mr Westgate submitted that:
"The Deputy Judge failed to recognise that s.4 permits the provision of facilities necessary to make use of accommodation provided by somebody else. The Claimants case was not that support would be provided on a standalone basis unrelated to any accommodation; rather, there was no statutory restriction on who could provide that accommodation."
"Section 4 is dealing with accommodation. Not only is that the heading of the section, but the provision of accommodation permeates through the various sub-sections of section 4. The words "facilities for the accommodation of a person" obviously go wider than the accommodation itself, but the facilities must be linked to the accommodation. Clothing cannot possibly be linked to the accommodation."
In paragraphs 32 and 33 he said:
"32 The definition of "accommodation" in the Khan case plainly embraced food. The defendant in this case has taken the view that food and essential toiletries are included within the term "facilities for the accommodation of a person" in section 4(2) on the basis that what is envisaged is what would be provided in a hotel offering full board, because a power to house failed asylum seekers would be inadequate unless the defendant could also feed them. The claimant seeks to take advantage of that approach by saying that, if accommodation is inadequate without food, it is also inadequate without clothing. That submission is based upon a generous interpretation of section 4(2) by the defendant. If that interpretation is correct, it can only be on the basis of the claimed link with the accommodation, but I certainly would not accept that any such concession by the defendant could provide any valid basis for a link between clothing and the accommodation, such as to bring it within section 4(2).
33. The claimant's argument that section 4 embraces the provision of all essential living needs is derived from the fact that Regulation 2 of the 2005 Regulations, made pursuant to section 4(5), adopts the definition of "destitute" contained in section 95(3), which includes a person who cannot meet his essential living needs. However, in much the same way as Dyson LJ concluded in paragraph 58 of his judgment in the Khan case that the trigger for the exercise of the section 21 function under the 1948 Act, namely that a person is in need of care and attention, does not tell you what the authority can provide for that person, so in this case the fact that a failed asylum seeker is destitute is the trigger or, as Ms Laing put it, the gateway to section 4, does not tell you what can be provided under section 4 to that person. Unlike section 96, section 4 is not a power to alleviate destitution; it is a power to provide facilities for the accommodation of a failed asylum seeker. The claimant, as a destitute asylum seeker, is eligible under section 4 to be provided with facilities for her accommodation, but that expression does not include all her essential living needs, and in particular does not include clothing for her or her son."
"In my view, having given the defendant responsibility for the provision of accommodation, Parliament must have intended the defendant to exercise that responsibility by taking positive steps to organise the accommodation and he must retain a degree of responsibility for the accommodation itself. In practice, this is likely to involve the defendant entering into contractual relations with the accommodation provider."
As I understand it, Mr Westgate does not dispute the proposition that making arrangements for the provision of something will involve taking some positive steps. He takes issue, however, with the proposition that the respondent, having made the arrangements, must retain a degree of responsibility for the accommodation itself.
"The claimants contend that 'the decision failed to appreciate that service provision under section 4 could have been made by way of funding the existing accommodation where the Claimant resided with his partner, followed by provision of vouchers.'
Her response to this proposition was:
"46. Section 4(2) confers on the SSHD a discretion as to the form and manner in which he provides, or arranges for the provision of, facilities for the accommodation of a person. Accordingly UKBA recognises that it would be open to it to provide s.4 support in the manner proposed by the Claimants.
47. As a matter of policy, UKBA considers that section 4 support should generally be provided within the existing framework of Target Contracts ..."
She then refers the reader to the evidence of another witness, Mr Cairns, who explains the reasons why this is so.
"As I explained, as a matter of policy UKBA considers that s.4 support should generally be provided within the existing framework of the Target Contracts. These contracts serve a number of important functions, both in the interests of s.4 recipients themselves, and in the wider interests for the United Kingdom taxpayer.
43. That said, I recognise that it would also be open to UKBA to provide s.4 support in the manner proposed by the Claimants. If we considered that this was justified by the particular circumstances of an individual case, we would be prepared to do so. This would, however, give rise to a number of practical difficulties and disadvantages which I shall now explain."
Lord Justice Gross:
"Unlike section 96, section 4 is not a power to alleviate destitution ..."
Sir Anthony May:
"The Secretary of State may provide or arrange for the provision of facilities for the accommodation of a person if (a) he was but is no longer an asylum-seeker and (b) his claim for asylum was rejected."
There is an equivalent form of expression, that is facilities for the accommodation of a person, in subsection (1). The short question is whether "facilities for the accommodation of a person" is wide enough to embrace subsistence payments when no accommodation is provided. I do not think that it can. Although the expression, taken alone, might just at a stretch extend to payments or vouchers alone, the natural reading is that the facilities either are or are connected with the provision of accommodation by the Secretary of State. To my mind, that is undoubtedly not only the natural meaning but also the true meaning, when you also look at other subsections of section 4. Subsections 4(5) and 4(6) refer in no less than five places simply to the providing or provision of accommodation without the inclusion of the added word "facilities" in the context of powers to make regulations. These are quite plainly references to the same powers as are provided for in subsection (2). Yet, further, subsection (10) provides:
"The Secretary of State may make regulations permitting a person who is provided with accommodation under this section to be supplied also with services or facilities of a specified kind."
Subsection (11) provides for the content of such regulations. The reference in subsection (10) to a person who is provided with accommodation under this section has to be a reference back to subsection (2), confirming, in my view, that subsection (2) does indeed embrace the provision of accommodation and that the section does as a whole require the provision of accommodation or the arranging of such provision before additional services or facilities come for consideration. If further support for this were needed, the contrast between section 4 and sections 95 and 96 provides it and section 4(4) has a persuasive reference to the definitions in section 94 in the way that Sullivan LJ has explained. The decision in AW (Kenya) accords with the construction which I, in agreement with Sullivan LJ, consider to be correct.
Order: Appeal dismissed.