QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF THE SECRETARY OF STATE FOR THE HOME DEPARTMENT||(CLAIMANT)|
|CHIEF ASYLUM SUPPORT ADJUDICATOR||(DEFENDANT)|
|NICLETTE MANZANA||(INTERESTED PARTY)|
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MR N GIFFIN (instructed by the Treasury Solicitor) appeared on behalf of the DEFENDANT
Crown Copyright ©
"You have applied for support under the provisions of the Immigration & Asylum Act 1999, to maintain you while your application for asylum in the United Kingdom is under consideration. However, the Secretary of State is not satisfied that you qualify for NASS support as he considers that you may be entitled to receive other support. In reaching his decision the Secretary of State has taken into consideration all the factors in your application, but has terminated your support for the reasons outlined below.
The Secretary of State notes that you applied for NASS support on an application dated 31 July 2001. The Secretary of State also notes that you applied for asylum on 3 June 1998 and made your claim for asylum in-country.
As you are a person who claimed Asylum in-country on 3 June 1998 at the Asylum Screening Unit in Croydon, the Secretary of State notes that under regulation 4 paragraph 4(2) and sub section (4)(a) of the Asylum Support Regulations 2000, you are excluded from asylum support from the National Support Services as you are a person to whom interim support arrangements apply. He considers you to be a person who may apply for support from your Local Authority. The Secretary of State has terminated your support under regulation 21 Section (3) of the Asylum Support Regulations 2000."
It is common ground that the final sentence, with its reference to regulation 21(3) of the Asylum Support Regulations 2000 was inapposite. In its second letter of the same date NASS told Ms Manzana that she had a right of appeal and it enclosed a form of notice of appeal to the asylum support adjudicator.
"In your letter you also claim that you have terminated my assistance in conjunction to Regulation 21 section (3) of the Asylum Support Regulations 2000. This is, as you claim, because I applied for asylum In-Country on 3 June 1998. I would [indecipherable] reject this as I did not apply for asylum on this date. I applied for asylum and arrived in the UK in 1996."
Hearing before Chief Asylum Support Adjudicator
"8. In the circumstances, I am satisfied that the appellant is an in-country applicant and accordingly, is not entitled to support from the National Asylum Support Service ('NASS') as the Secretary of State has not accepted responsibility for such category of persons. However, I note that the appellant's initial application made on 31 July 2001 was in fact [approved] on 1 October 2001 and NASS support has been in payment since. Having determined that she is entitled to support, the Secretary of State cannot then decide that she does not in fact qualify for it. The only option available is to discontinue support.
9. Regulation 20 of the Regulations in the only provision under which support can be suspended or discontinued to an appellant. The only grounds upon which suspension and discontinuance of support can be made are those set out in Regulation 20. The Secretary of State does not have the power to suspend or discontinue support once support has been granted for any other reason."
She then made a reference to the decision of Burnton J in the case of R v Asylum Support Adjudicator and the Secretary of State for the Home Department ex parte Hussain (5 October 2001 QBD CO/105/2001). She concluded her reasons as follows:
"Accordingly, in the absence of a specific power to discontinue support on the grounds that the award of support has been made in error, this appeal is allowed."
"It is the law that if a citizen is entitled to payment in certain circumstances and a local authority is given the duty of deciding whether the circumstances exist and if they do exist making the payment, then there is a determination which the local authority cannot rescind."
Mr Giffin accepts, of course, that in considering the application of such general propositions one must always have regard to the language of the particular scheme and any intention properly to be inferred from its wording.
"(1) The Secretary of State may provide, or arrange for the provision of, support for --
(a) asylum-seekers, or
(b) dependants of asylum-seekers,
who appear to the Secretary of State to be destitute or to be likely to become destitute within such period as may be prescribed.
(2) In prescribed circumstances, a person who would otherwise fall within subsection (1) is excluded."
The section goes on to set out how it is to be determined whether a person is destitute. So under section 95 an applicant for support must show three things: that he or she is an asylum-seeker or dependent upon an asylum-seeker; that he or she is not excluded from the scheme; and that he or she appears to the Secretary of State to be destitute or likely to become destitute within the relevant period.
"(1) Subsection (2) applies if, as a result of an error on the part of the Secretary of State, support has been provided to a person under section 95 or 98.
(2) The Secretary of State may recover from a person who is, or has been, a supported person an amount representing the monetary value of support provided to him as a result of the error.
(3) An amount recoverable under subsection (2) may be recovered as if it were a debt due to the Secretary of State.
(4) The Secretary of State may by regulations make provision for other methods of recovery, including deductions from support provided under section 95."
As was commented in argument, it is perhaps a little surprising that the section has provided that repayments may be recoverable as though the amount were a debt rather than by way of restitution, because a claim for restitution leaves available the defence of change of position which would not ordinarily be a defence to a claim in debt. However, the point may be of no significance because the power given to the Secretary of State under section 114 is discretionary and it might be that no Secretary of State would consider using the power or be allowed to use the power in circumstances where it would be unfair to do so, such that an action at civil law for repayment would fail if it were brought in restitution. There is no need to discuss that issue in this case.
The Asylum Support Regulations 2000
"If, on being notified of a change of circumstances, the Secretary of State considers that the change may be one -
(a) as a result of which asylum support should be provided for a person for whom it was not provided before, or
(b) as a result of which asylum support should no longer be provided for a person or (c) which may otherwise affect the asylum support which should be provided for a person,
he may make further enquiries of the supported person or dependant who gave the notification."
There is, however, no express provision that a change of circumstances may entitle the Secretary of State to stop providing support or vary the support otherwise provided. This is a point to which I will return.
"As well as being recoverable as mentioned in subsection (3) of section 114 of the Act, an amount recoverable under subsection (2) of that section may be recovered by deduction from asylum support."
"(1) Asylum support for a supported person and his dependants (if any), or for one or more dependants of a supported person, may be suspended or discontinued if -
(a) the Secretary of State has reasonable grounds to suspect that the supported person or any dependant of his has failed without reasonable excuse to comply with any condition subject to which the asylum support is provided;
(b) the Secretary of State has reasonable grounds to suspect that the supported person or any dependant of his has committed an offence under Part VI of the Act;
(c) the Secretary of State has reasonable grounds to suspect that the supported person has intentionally made himself and his dependants (if any) destitute;
(d) the supported person or any dependant of his for whom asylum support is being provided ceases to reside at the authorised address; or
(e) the supported person or any dependant of his for whom asylum support is being provided is absent from the authorised address --
(i) for more than seven consecutive days and nights, or
(ii) for a total of more than 14 days and nights in any six month period,
without the permission of the Secretary of State."
A procedural problem
"Where the court considers that there is no purpose to be served in remitting the matter to the decision-maker it may, subject to any statutory provision, take the decision itself."
Then it says in brackets "(Where a statutory power is given to a tribunal, person or other body it may be the case that the court cannot take the decision itself.)" I am not sure what the rather cryptic brackets mean.