England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		18 February 2015

MR JUSTICE HOLMAN:

1. The relevant Council Directive appears to place upon member states a positive duty to enable asylum seekers to have:

"a dignified standard of living and comparable living conditions in all member states".

2. Pursuant to that Directive, the United Kingdom does pay an allowance to asylum seekers. In Refugee Action, R (on the application of) v The Secretary of State for the Home Department [2014] EWHC 1033 there was a challenge by way of judicial review to the method by which the Secretary of State had calculated the current levels of asylum support, and a challenge to the lawfulness or rationality of the resulting actual figure.
3. At that time, as I understand it, the level of asylum support was, in round terms, £36 a week. The Secretary of State did not challenge by appeal the decision and judgment in the Refugee Action case. She says that she has reconsidered and recalibrated the appropriate level of asylum support by correct and punctilious application of all that the court said in the Refugee Action case. The actual level of asylum support that has now been fixed following that reconsideration and recalibration is, again in round figures, £36 a week.
4. The present claimant, who is an asylum seeker from Egypt, challenges the lawfulness and rationality of the new approach by the Secretary of State, and challenges the lawfulness of the resulting figure. She says, in effect, that it is simply not possible to live at the "dignified standard of living" that the Directive requires on as little as £36 a week.
5. Blake J refused permission on paper by a decision dated 19 November 2014. That date is important. He said in paragraph 1 of his reasons that he did not rule out the possibility that a generic challenge to the new decision of the Secretary of State might be arguable for various reasons that he identified. However, he continued at paragraph 2:

"2. However, I conclude that there are no realistic prospects of this claimant obtaining the relief sought (or any relief) on the particular facts of this individual claim:

i The claimant is able bodied without any identified characteristics that would impinge upon her ability to support herself in dignity

ii She has permission to work and has given no information about her skills and her ability to find work within the permitted range of jobs pursuant to permission granted

iii She has the enormous benefit of use of a credit card and is therefore able to budget for particular needs and spread costs over a period of time

iv The claimant has been asked for a specific budgetary breakdown and has failed to provide it..."

6. It is regrettable that, coincidentally also on 19 November 2014, the claimant made a second witness statement dated 19.11.14 which was sent to the court by her solicitors under cover of a letter dated 20 November 2014. Obviously that second statement was not itself made in response or reaction to the decision and observations of Blake J and, in effect, his decision and that statement "crossed" in the post.
7. The Secretary of State had provided as an appendix or annexe to her summary grounds of defence a list of the occupations which the claimant is permitted to undertake. The categories of occupation that are available to this claimant are limited to occupations on "the UK shortage occupation list". One only has to glance at that list to see that they are categories of occupation such as production managers and directors in mining and energy, biological scientists and biochemists, mechanical engineers, electrical engineers, medical radiographers, nurses specialist in neonatal intensive care units, certain categories of dancer and choreographer, and high level welders. The claimant says in her second witness statement that she is aged 27, she has never in fact worked at all, and she has absolutely no qualifications. Quite patently she has no prospect whatsoever of working in any of the permitted range of categories. The fact that she is "able bodied" really does not meet the point at all. She may be able bodied, but she lacks experience or qualifications to engage in the limited list of occupations permitted and available to her.
8. Blake J said:

"She has the enormous benefit of use of a credit card and is therefore able to budget for particular needs and spread costs over a period of time."

9. As she explains, the credit card is one that she was able to obtain at the time when she was on a student visa and prior to applying for asylum. She has already amassed debts on the credit card of £400 and rising. Far from being "an enormous benefit" to her, the credit card is, frankly, a passport to spiralling financial disaster if her regular weekly income is limited to £36. In my view, Blake J would not have expressed himself in the way that he did if in fact that second witness statement had been already available to him at the time that he considered this case. At all events, I have to consider this matter afresh taking account also of that statement.
10. To my mind, most of the grounds of this application are eminently arguable. The Refugee Action case clearly shows that the decision of the Secretary of State in setting the level of asylum support is amenable to judicial review. It is a striking fact that, having reconsidered in line with the requirements of that judgment, she has effectively come up with exactly the same answer. £36 a week is £5 a day; and the question whether that is a sufficient amount to enable anybody to have "a dignified standard of living" appears to me worthy of further consideration by the court.
11. For those reasons I will in principle grant permission to apply for judicial review. There are, however, two grounds which, to my mind, are completely hopeless. They are the grounds described as "eighthly" and "ninthly" in paragraphs 43 and 44 of the original statement of facts and grounds settled by Mr De Mello, dated 25 September 2014. Those grounds are based on an allegation of unlawful discrimination. The argument is that there is an unjustifiable distinction between the levels of asylum support and of income support and that that is discriminatory. To my mind there are very obvious reasons why completely different considerations apply to those eligible for income support, and to asylum seekers, who are an entirely discrete category of person whose right to any support can only essentially be founded on the EU Directive.
12. Blake J observed:

"3. The discrimination and grounds other than that set out in 1 seem to be wholly unarguable:

i Nothing in the Reception Directive or its preamble requires Member states to treat destitute asylum seekers awaiting a decision on the same basis as lawfully settled residents entitled to income support or even a set percentage of income support.

ii Residents and asylum claimants are self evidently in such a different position as to call for no evidence of justification to avoid a breach of article 14 ECHR."

13. I completely agree with those observations. To my mind, any attempt to found this claim on some argument of unlawful discrimination is both makeweight and hopeless. So, in granting permission, I do so on grounds 1 to 7 and 10 to 11 of the original statement of facts and grounds; but I refuse permission on grounds 8 and 9, that is, paragraphs 43 and 44. So far as directions are concerned, will you essentially be able to agree some directions?




MR DE MELLO: My Lord, yes we should.

MR JUSTICE HOLMAN: Now, the only question is estimated length. It seems to me that this case in fact will require a certain allocation of time. There will need to be a day of pre-reading. It is likely, is it not, to require two days of court time. Popplewell J did. I would have thought it would require two days for preparation and delivery of judgment.

MR DE MELLO: My Lord, yes.

MR JUSTICE HOLMAN: So when you agree and draw up directions, will you include within it that the case must be listed with one clear day allowed for judicial pre-reading, two days allowed for oral hearing, and two days allowed for preparation and delivery of judgment. In other words, some judge will have to have an entire week written out for this case.

MR DE MELLO: My Lord, yes.

MR JUSTICE HOLMAN: Are there any other points?

MR DE MELLO: My Lord, two things. First in relation to my Lordship's judgment, would your Lordship order that today's judgment be released on request.

MR JUSTICE HOLMAN: Well, what is the situation. [To the shorthand writer] Do you produce these automatically?

THE SHORTHAND WRITER: Not applications, no, my Lord.

MR JUSTICE HOLMAN: Either of you can apply for a transcript but you will have to pay for it.

MR DE MELLO: Certainly.

MR JUSTICE HOLMAN: As a right, any party can always have a transcript of anything that is said in the court, so the shorthand writer is here. I am not going to say at the expense of public funds, that is, the funds of the court, but if you think it is appropriate to obtain a transcript, you can do so, and you will have to fund it out of your public funding. If the Secretary of State wishes to have a transcript, she can do so and fund it out of her funds.

MR DE MELLO: Certainly.

MR JUSTICE HOLMAN: But I am not going to say at the expense of public funds.

MR DE MELLO: Certainly. Would my Lord also consider whether this case is appropriate for an order for expedition?

MR JUSTICE HOLMAN: No, I am sorry. I have said five days. It is an important case, in my view, and cannot be accelerated into the list. No, I won't say expedition.

MR DE MELLO: Thank you.

MR JUSTICE HOLMAN: Any other points, Ms Stout?

MS STOUT: No, my Lord.

MR JUSTICE HOLMAN: I am incredibly grateful to you, although you don't go away completely flushed with success. What is the degree of likelihood that somebody is going to ask for a transcript? I am only asking because it may affect what happens to these papers.

MR DE MELLO: My Lord, there is a good chance that the claimant's solicitors might ask for it.

MR JUSTICE HOLMAN: Perhaps the shorthand writer could return the papers with the transcript.

THE SHORTHAND WRITER: I will do.

MR JUSTICE HOLMAN: I am very grateful to you, Mr De Mello, and I am very grateful to you, Ms Stout.