QUEEN'S BENCH DIVISION
London, WC2A 2LL
B e f o r e :
| IBRAHIM MOHAMMED TAHIR SALIH (1)
BEHNAM RAHMANI (2)
|- and -
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Nigel Giffin QC (instructed by the Treasury Solicitor) for the Defendant
Crown Copyright ©
Mr Justice Stanley Burnton :
Asylum support: (a) under Part VI of the Immigration and Asylum Act 1999
"… a person is destitute if—
(a) he does not have adequate accommodation or any means of obtaining it (whether or not his other essential living needs are met); or
(b) he has adequate accommodation or the means of obtaining it, but cannot meet his other essential living needs."
"… a claim for asylum is determined at the end of such period beginning-
(a) on the day on which the Secretary of State notifies the claimant of his decision on the claim, or
(b) if the claimant has appealed against the Secretary of State's decision, on the day on which the appeal is disposed of,
as may be prescribed."
Where the claim for asylum fails and the claimant is not given leave to remain in the United Kingdom, the prescribed period is 21 days.
Asylum support: hard cases
"(1) The Secretary of State may provide, or arrange the provision of, facilities for the accommodation of persons –
(a) temporarily admitted to the United Kingdom under paragraph 21 of Schedule 2 to the [Immigration Act 1971];
(b) released from detention under that paragraph; or
(c) released on bail from detention under any provision of the Immigration Acts.
(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."
Accommodation provided under section 4 is commonly referred to as "hard cases support". There is, however, a contrast between the wording of section 4, which refers to facilities for accommodation, and that of Part VI of the Act, which in section 96 specifies the support that may be provided under that Part, and makes it clear that it may include, in addition to accommodation, provision for essential living needs. The accommodation arranged by the Secretary of State under section 4 includes full board, but no cash or vouchers. It has been asserted in correspondence that the Secretary of State should provide cash or vouchers to enable those receiving hard cases support to meet their essential personal expenses, such as the replacement of clothing. Mr Giffin QC submitted that the power conferred by section 4 does not extend to the provision of cash or vouchers. His submission seems to me to be correct; but there is no issue before me as to the scope of permissible provision under section 4, and I say no more about it.
"… it has been decided to amend the criteria for support which may be provided under section 4 of the Immigration and Asylum Act 1999 ("hard case support").
It has been decided that those Iraqis, who have had asylum claims finally determined and are unable to return to northern Iraq because a route has not yet been identified, may be considered to have exceptional circumstances for the purposes of the hard case criteria. Qualification for hard case support for such Iraqis will also be dependent upon the person signing an undertaking that once a safe route to northern Iraq has been identified they will take all reasonable steps to leave the United Kingdom and will, in any event, co-operate with efforts to remove them to northern Iraq made by, or on behalf of, the Secretary of State.
Other cases will continue to be considered on their merits.
Applications for hard case support may be made in writing to … Telephone …"
It may well be that similar letters were sent to other refugee organisations, but other letters are not in evidence.
"A person may be provided with support under section 4 of the Immigration and Asylum Act 1999 ("the Act") if
- His/her claim for asylum has been determined (within the meaning of Part VI of the Act);
- He/she has been supported by the National Asylum Support Service or by a local authority under Schedule 9 to the Act;
- He/she is no longer an asylum seeker within the meaning of Part VI of the Act;
- He/she appears to be destitute within the meaning of Part VI of the Act; and
- He/she has no other avenue of support.
Each case will be considered on its merits, but support will not normally be made available to a person unless:
- He/she is unable to leave the United Kingdom by reason of a physical impediment to travel e.g. through illness or late pregnancy, or
- The circumstances of the case are exceptional; and
- He/she is taking all reasonable steps to leave the United Kingdom and, in any event, is complying fully with the efforts to remove him/her.
- Support may also be provided if it is clear that an eligible person has been granted permission for judicial review of any determination in respect of his/her application for asylum or has made an application for permission to apply for judicial review and the application does not appear to the Secretary of State wholly unmeritorious.
Support under section 4 of the Act will be basic full board accommodation normally outside of London and those supported may be required to subject themselves to regular monthly reviews and, other than in cases where judicial proceedings are outstanding, be able to show that they are taking all reasonable steps to leave the United Kingdom and in any event are complying fully with efforts to remove them."
The facts of the present cases: (a) Salih
"The support you have been provided with is to be discontinued. Support is provided for a period of 21 days following the notification of the resolution of your asylum claim, which is deemed to be received 2 days following the determination of your asylum application. Our records show that your claim for asylum was determined on the 19 Nov. 2001, therefore the period of support ended/ends on 10 Dec. 2001.
You will be allowed to stay in the accommodation until 25 Oct. 2002, which should be seven days from receipt of this letter, when you will be expected to leave.
You should note that there is no right to appeal against this decision under section 103 of the Immigration and Asylum Act 1999.
You must now leave the United Kingdom. Help and advice on returning home can be obtained from the Immigration Office dealing with this case or the Immigration Service on (telephone number)….
Alternatively help and advice for asylum seekers and those whose asylum claim has been refused who wish to return home voluntarily can be obtained from the International Organisation for Migration at …
Your nearest One-Stop Service is The Refugee Council …"
The letter gave the address and telephone number of the Refugee Council. The emphasis is in the original. As can be seen, the letter made no mention of hard cases support.
"Accommodation is provided on a 'no choice' basis and there is no entitlement to financial support for those provided with accommodation under this section. Where accommodation is provided this will most usually be on a full board basis. Unless the Secretary of State is satisfied that the circumstances are wholly overwhelming or compassionate this accommodation will be provided away from London and the Southeast and there is no guarantee that you will be provided with accommodation in or near your current location."
"Thus, if our client is found to be eligible for such support, he is need of urgent help. It is wholly inconsistent with the exercise of NASS' power to provide support under s4 of the 1999 Act for there to be any delay between the decision to provide support and the actual availability of that support to our client.
It follows that upon determination of his needs, NASS must be able to provide our client immediately with accommodation. That is not difficult. NASS already has the facility to book accommodation on the spot. There is in our experience a ready availability of accommodation at NASS' disposal locally in Birmingham.
Further, we are not aware of any reason as to why NASS could not continue to accommodate our client at 8 Fashoda Road, Birmingham, at which address he remains, and where he has previously been provided with accommodation and subsistence by NASS over the period of more than two years."
"Our client simply cannot wait for another week or more before arrangements are put in place for NASS to support him."
"11. I have only been able to survive by begging others in the house for food. It is difficult and stressful. The others cannot afford to support me. I cannot get enough to eat. My diet is very poor.
12. I feel degraded by my situation. I am desperate for support."
"1. His claim for asylum has been determined (within the meaning of Part VI of the Act);
2. He is no longer an asylum seeker within the meaning of Part VI;
3. He has previously been supported by the National Asylum Support Service;
4. He is left destitute by the withdrawal of support under section 95 of the 1999 Act;
5. (R) has no permission to work in the UK and no other avenue of support.
It is the Secretary of State's published policy (under the 'hard cases' scheme) to provide support under s.4 where a person who is eligible for such support has been granted permission for judicial review of a determination in respect of his / her application for asylum.
6. Our client has such permission. …"
"I am frequently asked to advise Kurdish Iraqis who have been refused asylum in the UK and whose asylum appeals have been dismissed. Nearly all such clients were previously supported by NASS as destitute asylum seekers. Very few of my clients are aware of the existence of the hard cases scheme. Those who are aware of the existence of the scheme, are usually unaware of how to claim s 4 support. As a result, people may be left for weeks or even months without any form of support."
"7. It is important to note that a considerable percentage of those who apply for, and are accepted for, Section 4 support either decline the offer of support or fail to arrive at the proposed accommodation to take it up. It seems likely that this is for two reasons. First, accommodation provided under Section 4 is likely in practice to be in a different part of the country from that in which NASS was providing accommodation whilst the individual was awaiting the determination of his asylum claim. As a matter of policy, it is provided on a full board basis only, with no provision of cash or vouchers. It seems that many of the persons concerned prefer not to be re-accommodated in this way. Secondly, it appears that in reality many such individuals are able to find other sources of accommodation and support, for example from relatives or from other contacts in a local community. If this is regarded as preferable to Section 4 support, the latter will not be taken up even when offered.
8. By way of illustration of this point, in the year ending 31 March 2003 a total of 744 Iraqis applied for Section 4 support and all but a handful were made an offer of accommodation. At the present time, however, only 102 Iraqis are being accommodated under Section 4. The rest either did not return the slip accepting the offer of support…, or failed to travel to the accommodation arranged for them or left it shortly after arrival.
9. As I have already indicated, the policy of the Home Office is that Section 4 support should be reserved for genuinely exceptional cases, and should not be provided to failed asylum seekers as a matter of routine. Nor is it regarded as desirable to encourage the making of applications for support as soon as the claim for asylum has failed. Rather, the intention is that all other possibilities of support should be exhausted before applications under Section 4 are made. For the reasons I have already given, it is likely that in many cases such alternative sources of support will indeed be forthcoming.
10. It is therefore not considered appropriate to give notice of the possibility of Section 4 support as a matter of routine when individuals are notified of the decisions on their asylum claims, or even to do so in the case of categories of person (such as those from Northern Iraq) who might be likely to be offered assistance under Section 4. Indeed, given the exceptional circumstances in which Section 4 support is intended to be provided, any general encouragement to failed asylum seekers to apply for such support might be regarded as misleading."
i) the terms of the standard letter sent to unsuccessful asylum seekers, which was the basis of the letter dated 15 October 2002 sent to S and that dated 2 January 2003 sent to R referred to above, which direct the addressee to the Immigration Service and the International Organisation for Migration. Mr Allen stated that these organisations would be able to advise on the availability of hard cases support. Curiously, unlike the letters sent to S and to R, the standard letter does not refer to the Refugee Council.
ii) the fact that some 90 per cent of asylum seekers who appeal to adjudicators are legally represented, and their legal representatives "should be able to offer suitable advice to their clients if they are likely to qualify for Section 4 support if their appeal is unsuccessful".
He said that the Secretary of State had decided not to inform the providers of NASS accommodation to Iraqi Kurds of the possibility of hard cases support.
"12. Once an application for Section 4 support is received, the applicant is considered for eligibility. Usually, at the current time, it takes 7 to 10 days for a letter confirming or declining eligibility to be sent out. We have taken a random sample from April and May 2003 to check this and, from the four selected, the applications had taken 6, 4, 4 and 6 days respectively to process. Given the number of applications and the need for consideration of the personal circumstances of individual applicants this is the quickest time in which the process can be completed. At the time of (S's) application for support on 24 October 2002 the process took much longer to arrange due to the substantial increase in applications at that time (see para 15 below). The time taken for (his) application to be processed was not unusual then, but the situation has since changed due to increased staffing levels (see para 15).
13. In each case where an applicant has applied for Section 4 support and he or she falls under the eligible criteria, a letter is sent out requesting return of an acceptance slip. … It is necessary for the applicant to complete the acceptance slip so that they understand the conditions of provision of Section 4 support and that this may mean that they have to relocate to a different area of the country. The YMCA will not be contacted to arrange accommodation until the slip has been returned. Whilst this may introduce some further delay into the process, it is considered to be a valuable part of the procedure. Given the high percentage of applicants who subsequently decline Section 4 support, it avoids some of the wastage involved in arranging and reserving accommodation and making travel arrangements for those who do not take up offer of Section 4 accommodation. They also avoid the expense incurred in making unnecessary travel arrangements. I have spoken to caseworkers about this, and it appears that most people who decline offered support do so by not returning the slip, rather than by returning the slip and then failing to take up the accommodation.
14. Usually it takes 5 working days from return of the slip to arrange final accommodation details. Given the need to co-ordinate with an outside body (the YMCA) and the need to fix travel arrangements and support I respectfully suggest that this is not an unreasonable period for these arrangements to be finalised.
15. In relation to delays in the process, it is also important to note that the number of applications for Section 4 support, originally quite small, has been steadily rising from April 2002 onwards. It was because the number of applications came to be much higher than originally expected that NASS took over the administration of the system from the Refugee Integration Unit of the Home Office. In particular, there has been a notable increase in the rate since October 2002. Although I am not in a position to be sure of this, I think that this may well be because many asylum claims from Iraqi applicants were determined at this time. Efforts have been made to reduce any delays in arranging Section 4 support by increasing the resources available to the team responsible. Since October 2002 staff numbers have been increased from just one caseworker working full time on Section 4 applications to 6 caseworkers working full time. An additional person has also been brought in to provide general administrative support."
The submissions of the parties
(a) NASS's policy not to inform failed asylum seekers of the hard cases support scheme
i) That the policy or practice of the Home Secretary not to inform those who may be eligible for hard cases support of the scheme and the criteria for eligibility is inconsistent with his hard cases policy, and is unlawful under the principle exemplified in Padfield v Ministry of Agriculture, Fisheries and Food  AC 997.
ii) That the policy is irrational.
a) The correct inference to be drawn from the fact that so many applicants for hard cases support do not take up their offer is that they misunderstand the nature of the scheme, and only learn of it when they are given information by NASS. In other words, their ignorance increases the number of persons applying for hard cases support rather than reducing it.
b) The suggestion that those "genuinely in need of [hard cases] support will become aware of it" is illogical: being in genuine need does not generate the means to obtain information.
c) The Home Secretary relies on the references made in the refusal of asylum letter to organisations that may provide information. However, the letter refers to those organisations for the purposes of "help and advice on returning home" rather than for advice on support. This does not indicate that they may assist in relation to support. In addition, the evidence suggests that the Refugee Council cannot be relied upon to give information about hard cases support.
d) The Home Secretary's reliance on the availability of advice from representatives of solicitors firms acting on immigration appeals is ill-founded: the evidence of Mr Shotton shows that in practice, clients are not advised on the availability of hard case support or how to apply for it.
e) The view that, because hard cases support is given only in exceptional circumstances, general notification to those who might be eligible for it of the scheme and its terms "might be regarded as misleading" is perverse. Information as to the scheme is not the same as "general encouragement".
f) The standard letter, when written to a person who qualifies for hard cases support, is misleading, and it is unlawful for NASS to send such letters to persons whom it knows or should know qualify for such support.
g) It is unlawful to evict from accommodation provided by NASS persons whom NASS knows to qualify for hard cases support while deliberately keeping from them the existence of the scheme.
i) The provision of support under section 4 is discretionary. The Home Secretary is under no duty to provide such support.
ii) The provisions of the 1999 Act show that support under section 4 was intended by Parliament to be more restricted than support under Part VI. Although Part VI is framed in terms of power rather than duty, it is redolent with the expectation of support. In contrast, support under section 4 was intended to be more restricted in scope. Parliament did not expect all failed asylum seekers to receive support under section 4. That expectation is reflected in the Home Secretary's policy. The requirement that a failed asylum seeker should have no avenue of support was intended to and does add to the requirement that he or she must be destitute in order to qualify for hard cases support.
iii) The object of the policy of refraining from informing failed asylum seekers of hard cases support is to put them to the test, to see if they could find an avenue of support other than from public funds. That is a lawful object.
iv) The standard form of letter is literally true and not misleading.
v) In other contexts, Parliament has expressly required the government or other public authority to inform individuals of their rights. It did not do so in relation to section 4 support. It is not for the Court to impose an obligation to inform them where Parliament has refrained (it may be inferred deliberately) from doing so.
vi) There is no evidence that ignorance of the availability of hard cases support causes suffering. It is not suggested that either of the Claimants suffered an infringement of his rights under Article 3 of the European Convention on Human Rights.
vii) The Home Secretary is entitled to take the view that such support should be given only to those who cannot manage by other means.
viii) The evidence that large numbers of those offered hard cases support do not take it up entitles the Home Secretary to take the view that a large proportion of those appearing to be qualified for such support are in fact able to manage without it.
ix) The Home Secretary is entitled to take the view that the provision of information as to the availability of hard cases support to every failed asylum seeker who might be qualified to receive it would cause a large number of unnecessary applications to be made.
x) The Home Secretary is entitled to take the view that it is desirable to avoid unnecessary applications for hard cases support being made because of the difficulties of ascertaining whether it is really needed and the costs involved in such investigations.
xi) The Home Secretary is entitled to take the view that those who really need support will become aware of its availability. In this connection:
a) there is no evidence that those who need hard cases support do not eventually learn of its availability;
b) it is rational to expect those in need to take advice, and that their advisors will be able to advise them of the scheme. Mr Giffin however conceded that in the light of Mr Shotton's evidence the Home Secretary's expectation with regard to solicitors acting in asylum cases may have to be reconsidered.
xii) The Home Secretary is entitled to weigh the advantages and the disadvantages of the current practice and has done so. That practice is the result of his doing so. It is not inconsistent with the 1999 Act or rendered unlawful by section 6 of the Human Rights Act. It therefore is not in breach of any fundamental rights of the Claimants or otherwise unlawful.
The delay between an application for hard cases support and its provision
(a) The policy not to inform those appearing eligible for hard cases support of its availability
"1.45 Unfortunately, the Immigration Rules are not a comprehensive code of all the practices regulating entry into the UK. There are great gaps, some of which are covered by well-known practices, which in some cases have an almost equivalent status to the Rules but for reasons best known to the Home Office are not incorporated into them. … Most of these policies are now being collected and put into the Immigration Directorate Instructions (IDI) and Asylum Policy Instructions (API), published by the Home Office since 1998 as part of its commitment to greater transparency or openness. These instructions are an invaluable guide, not just to policies outside the Rules but also to latest practice in the interpretation of the Rules. They are available on the internet, in most law libraries and in a number of organisations, including the Immigration Law Practitioners' Association. …"
"1. The current practice of the Defendant relating to the provision of information about his scheme under section 4 of the Immigration & Asylum Act 1999 to those who may qualify under that scheme is unlawful.
2. It is not a requirement under the said scheme that the applicant has been evicted from accommodation provided under section 95 or 98 of the Immigration & Asylum Act 1999."
Delay in the provision of section 4 accommodation
MR JUSTICE STANLEY BURNTON: This judgment has been distributed in draft. I am very grateful to both counsel for their amendments and suggestions. The most recent suggestion has been taken into account in the drafting of paragraph 41, as I hope counsel can see. I hope that satisfies their concerns.
The conclusions I came to are set out in the judgment. Although counsel, I think, are agreed on the form of order to be made, it is not the form of order I envisage making. I envisage making an order requiring the Secretary of State to reconsider his practice in relation to information concerning hard cases of support in accordance with the law. The basis for my decision was that he appeared to have made decisions not to make information available, rather than to consider what information ought to be made available. That was the form of the order I made that was made in the decision of the House of Lords which we referred to in the course of argument, wasn't it?
MR GIFFEN: My Lord, for our part --
MR JUSTICE STANLEY BURNTON: In Padfield.
MR GIFFEN: -- I would have no objection to an order which makes no declaration at all, but was simply to be an order requiring the Secretary of State to reconsider. I am sure that would be acceptable.
My Lord, I do make an application for permission to appeal. May be your Lordship wishes to hear Mr Cox about the form of order first?
MR COX: My Lord, your Lordship's judgment, in my submission, is sufficiently clear on the issues of law and it is your Lordship's order and I am perfectly content for your Lordship to make that order. I have no objections to the suggestion.
MR JUSTICE STANLEY BURNTON: Could I ask you to agree a form of order in accordance with what I have just said and give it to the associate? Now, leave to appeal. What do you say?
MR COX: My Lord, I say that your Lordship's judgment, while taking the law one step further as being an incremental development of the existing principles, and giving the limited nature of the declaration of the order your Lordship has made this morning, the right course, in my submission, is for the Secretary of State to go back to his policy, remake it and, if this matter needs to be taken further, there will be further litigation. But your Lordship does not make any novel -- doesn't decide any novel point of law which justifies permission to appeal.
MR JUSTICE STANLEY BURNTON: Thank you very much. This is a case for leave to appeal. Costs are agreed?
MR GIFFEN: My Lord, I am not resisting the order that Mr Cox seeks.
MR JUSTICE STANLEY BURNTON: The claimants will have their costs. Normal order in relation to public funding?
MR COX: Yes.
MR JUSTICE STANLEY BURNTON: Anything else?
MR COX: Simply that the form of the order that I propose to your Lordship as to costs is that they pay the claimant's costs of the entire claim to be assessed if not agreed.
MR JUSTICE STANLEY BURNTON: Why does the word "entire" appear?
MR COX: My Lord, my solicitors tell me that in a recent taxation concerning another firm the taxation master refused interpartes costs for the leave stage because the judge at the leave stage on the papers had not said costs reserved, and out of an abundance of caution they asked me to ask your Lordship to make an order in that form to make it clear, if that is possible, that that extends to the leave stage, permission stage in these cases, where similar orders were also made.
MR GIFFEN: My Lord, I don't resist that. It would seem a little harsh if the claimant --
MR JUSTICE STANELY BURNTON: I think judges don't make orders at the permission stage on the basis that they will be assessing costs in the case, but the order that I prefer to make is not the entire claim, but the costs of the claim including the applications for permission. Is that not rather clearer?
MR COX: My Lord, as long as it is not thought that that in any sense excludes the interim relief applications.
MR JUSTICE STANLEY BURNTON: You can have both, but specified. I think it is better to have them specified rather than an entire claim which may be good enough for your purposes but may leave something open to argument.
MR COX: Yes, my Lord. Perhaps then if it is to pay the claimant's costs of the claim, including the costs of the application for permission, and of applications for interim relief?
MR JUSTICE STANLEY BURNTON: Were they separate to the claims for permission?
MR COX: Interim relief was dealt with separately from permission at the early stage.
MR JUSTICE STANLEY BURNTON: Yes, unless Mr Giffen wishes to say anything, that will be the form of order I would prefer to make.
MR GIFFEN: My Lord, I am content with that. My Lord, I should have mentioned that my instructing solicitor did notice one other typographical error in the judgment which we have overlooked.
MR JUSTICE STANLEY BURNTON: I might say that your fax -- was it last night?
MR GIFFEN: Yes.
MR JUSTICE STANLEY BURNTON: Led to running around early this morning, as you can imagine. Give me the other amendment because the judgment is still subject to editorial corrections.
MR GIFFEN: It is paragraph 46. The quote from the Statutory Instruments Act says "unless it is proved that at that at".
MR JUSTICE STANLEY BURNTON: I see, there are too many "that ats".
MR GIFFEN: It must be "unless it is proved at that date".
MR JUSTICE STANLEY BURNTON: There is a surplus "that at".
MR GIFFEN: The second "that at" should be "date" I think.
MR JUSTICE STANLEY BURNTON: Yes. Too many "that ats". It should be "that at (the date of the alleged contravention)".
MR GIFFEN: No, it should read "unless it is proved that at that date (the date of the alleged contravention)".
MR JUSTICE STANLEY BURNTON: I see. So there is a "date" missing.
MR GIFFEN: Instead of the second "that at".
MR JUSTICE STANLEY BURNTON: Thank you very much. I am always impressed with accurate proof reading. It is a facility which I am incapable of. Unless there is anything else, thank you both for an interesting case and interesting argument. Let us see what the Court of Appeal says.