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
		4 April 2016

1. MR JUSTICE LANGSTAFF: This is an application for urgent interim relief which comes to me in the vacation in the desperate circumstances in which the claimant now is. He had sought to stay in the UK after he obtained a Master's Degree as a Tier 1 highly skilled migrant: in his claim he says that he has had four job offers since January which he has been unable to take up until his immigration position is regularised, which might be though to give some support for this. His application was refused.
2. He appealed against the refusal Ultimately he felt driven to make an application for asylum, in order to remain. That application was rejected on paper. He obtained permission from the Administrative Court to bring a claim for judicial review in respect of the refusal. That claim was about to be heard when, the day before, an agreement was reached between the claimant's representatives and the Treasury Solicitor. This was on 3 December 2015. The order made by consent began by reciting:

"Upon the respondent agreeing to reconsider her decision of 21 January 2015..."

The decision referred to was the decision by which the defendant had refused the claimant's asylum application.

Accordingly, it might be thought that had as yet been no final determination of the claim for asylum. As such, it might be thought that the claimant remained entitled to support under section 95 of the Asylum and Immigration Act 1999 as remaining an "asylum-seeker"

3. However, without the claimant being told in clear terms that his application had been rejected after the promised reconsideration, or granted, he made an application for asylum support. A letter dated 13 January 2016 was written to him in response to that application by a Miss Dalton of the Financial Support Assessment Team. In that, she rejected his claim for section 95 support because he did not fit within the definition of an asylum seeker in section 94 of the Act. Based upon what she saw as the information he had provided to the defendant, she thought the asylum claim had been refused and therefore his asylum claim had been determined. Since it was determined, he could not be described as an asylum seeker. He did not fit within the definition in the Act.
4. However, there is no reference at all in the letter of 13 January 2016 to the effect of the agreement at court in which the defendant said that she was reconsidering the decision to refuse. If, as I have said, that means that there was no final determination of the asylum claim, it might seem that the claimant remained an asylum seeker within the definition in the Act.
5. The last paragraph of the letter says "you have been granted Asylum/leave to remain and are therefore not an asylum seeker as laid out in section 94 of the 1999 Act," and refers to section 4 support, for which Ms Dalton appears to have considered the claimant eligible. The claimant has thought, because of the wording of the letter (referring as it does to being granted "Asylum/leave to remain") that he had actually been granted asylum. He might have been wrong in reading the letter this way. The writer may simply have been using that description to cover a person who was not any longer an asylum seeker, because asylum had been refused, but who still had limited leave to remain because he had outstanding judicial reviews which were to be determined in-country.
6. The letter, and the refusal of section 95 support within it, has caused significant problems for the claimant. He has not been able to access support. He has lost his lodging. His landlord has evicted him, since he cannot meet the rent. He has been unable to take up job opportunities because he cannot prove his immigration status. Nor can he access any form of income support. He had the offer of PGCE training (to become a teacher) at King's College for which normally a bursary would be available, again depending upon his particular circumstances. Because King's College require further information as to his immigration status which he is unable to supply because the Home Office have given no further information, so he says, he has been unable to take advantage of that.
7. All this is made particularly acute for him because its consequence, as he put it to me orally, is that all his belongings fit in one bag, he has no idea where he will sleep tonight, yet he happens to be the recipient of a kidney transplant. The material in my papers show that he requires to have anti-rejection drug therapy every day of his life and his immune system is rendered unusually vulnerable by this, such that everyday events for others such as the common cold are potentially far more dangerous for him. It is important for him in particular to have dry, comfortable, suitable accommodation, which is one of the very things he cannot easily access in his present position. All that makes the consequences of the refusal of 13 January particularly distressing for him.
8. He therefore has sought interim relief in his claim. This was rejected on the papers by Cheema-Grubb J. There seems to me a very good reason for that decision: first, he sought an interim order in these proceedings requiring Croydon Council to accommodate him pending receipt of the relevant documents from the defendant recording that he has (as he has assumed from the letter) asylum or leave to remain; secondly, that the Department for Work and Pensions provide him with Jobseeker's Allowance pending the receipt of those documents; thirdly, that King's College assist him to access the relevant bursary pending the receipt of those documents; and finally, seeking "any other order as the court pleases". However, he has not formally taken any steps to join Croydon Council in these proceedings. Since these proceedings are against the Secretary of State for the Home Department, I would not be prepared to grant interim relief against a third party, here a local authority, which is not present and represented, and has been given no proper opportunity to consider the position. The same applies, although with lesser force since it is a Department of State, to the Department for Work and Pensions, and I adopt entirely the reasoning of Cheema-Grubb J in respect of the undesirability of this court interfering with the bursary arrangements that King's College makes for itself.
9. I venture to think that the real problems in this case may be twofold: first, it is how the letter of 13 January 2016 is properly to be understood; and secondly, and perhaps more importantly for the claimant, that in the light of the history of the agreement to reconsider her decision by the Secretary of State for the Home Department, the letter of 13 January may have been written under a misconception by its author that the claimant was not entitled to section 95 support.
10. The claimant appeared in person with the support of the Personal Support Unit, for which the court is grateful. I indicated in the course of argument that I would set out these thoughts on paper, conscious though I am that there has been no one to respond and put the other point of view (if there is one) so that his position may be properly explained for the benefit of the Home Department; and to see if, as a matter of some urgency, it will address the effect of the decision of 13 January 2016 and assess whether that is indeed correct in the circumstances as displayed before me. If the true position is that the claim for asylum has not finally been determined – because it is still being reconsidered, in line with the Defendant's agreement to do so as recorded on 3^rd. December last year – then the Defendant might wish to re-consider the decision as to section 95 support. If asylum has been refused, or granted, following the promised reconsideration then the Claimant would seem to be entitled to be given clear written documentation to record that fact.
11. It seems to me that setting out these observations is the best I can do to help the claimant to enforce what may well be his rights without interfering inappropriately with the rights and entitlements of others such as the Croydon Council and King's College.
12. It is for those reasons that I refuse the order for interim relief; I endorse the order made by Cheema-Grubb J, which includes an order shortening the period of time within which the acknowledgement of service and grounds of resistance, if any, are to be filed in these proceedings by Defendant; and I have asked that a transcript of this judgment be made at the earliest opportunity so that the claimant is best assisted in ensuring his rights are secured, if they have indeed been infringed. He may wish to show it to the Defendant, to assist its further decision making.
13. Finally, I am grateful to the shorthand writer for her agreement to expedite this transcript, so that it will be available by tonight. The transcript will be available at public expense.