Factual and Procedural Background
This opinion concerns three conjoined claims for judicial review challenging decisions by the Secretary of State setting weekly support payments to asylum seekers under sections 95 to 98 of the Immigration and Asylum Act 1999 ("the 1999 Act"). The challenged decisions followed the judgment in Refugee Action v Secretary of State for the Home Department (SSHD) [2014] EWHC 1033 (Admin), where the court quashed the Secretary of State’s decision to freeze weekly support payments at £36.62 since 2011.
The impugned decisions are:
- The 11 August 2014 decision maintaining support payments for single adult asylum seekers at £36.62 per week ("the 2014 Decision"), challenged in the claim by the Plaintiff Ghulam.
- The 8 April 2015 decision increasing the rate for single adult asylum seekers from £36.62 to £36.95 per week ("the 2015 Decision"), also challenged in Ghulam.
- The 16 July 2015 decision reducing support for child dependants of asylum seekers from £52.96 to £36.95 per week, challenged in claims by Plaintiffs K and YT and RG.
The claimants allege that the Secretary of State failed to carry out proper enquiries, breached EU directives and human rights provisions, discriminated against children of asylum seekers, failed to provide for recreational needs, acted irrationally, and breached statutory duties including the Public Sector Equality Duty ("PSED").
Permission for judicial review was granted on most grounds in these cases, with the Equality and Human Rights Commission ("EHRC") intervening in K. Amendments to grounds were allowed in YT and RG’s claim, but a systemic challenge to the Secretary of State’s approach to exceptional support under section 96(2) was refused.
The opinion includes a detailed overview of the legislative framework governing asylum support, relevant EU directives including Directive 2003/9/EC ("Reception Directive"), international conventions such as the UN Convention on the Rights of the Child ("UNCRC") and the UN Convention on the Rights of Persons with Disabilities ("UNCRPD"), and domestic statutory duties including section 55 of the Borders, Citizenship and Immigration Act 2009 ("the 2009 Act") and the Equality Act 2010.
The opinion also sets out factual background relating to the individual claimants, including their circumstances, evidence of expenditure, and the impact of the reduction in support payments.
Legal Issues Presented
- Whether the Secretary of State’s 2014 and 2015 decisions on weekly support payments comply with the minimum standards required by the Reception Directive and domestic law.
- Whether the Secretary of State failed to carry out a proper inquiry in setting the support rates.
- Whether there is unlawful discrimination against children of asylum seekers in comparison with children of nationals receiving Income Support, in breach of Article 14 ECHR and/or Article 21 of the Charter of Fundamental Rights of the European Union.
- Whether the Secretary of State breached the Public Sector Equality Duty under section 149 of the Equality Act 2010 in relation to disability and sex.
- Whether the Secretary of State failed to comply with statutory duties under section 55 of the 2009 Act concerning safeguarding and promoting the welfare of children.
- Whether the Secretary of State’s arrangements for exceptional support under section 96(2) of the 1999 Act are adequate and lawful.
Arguments of the Parties
Appellant's Arguments
- The Plaintiff Ghulam argued that the Secretary of State employed substantially the same flawed methodology as criticized in Refugee Action, resulting in an insufficient support rate that fails to meet essential living needs, particularly given erosion of rates in real terms and inflation, especially food prices.
- The second claimant K, supported by EHRC, contended that children of asylum seekers are unlawfully discriminated against compared to children of nationals on Income Support, receiving significantly lower payments without adequate justification, breaching EU law, ECHR, and domestic statutory duties including section 55 of the 2009 Act and Every Child Matters guidance.
- They argued that the Secretary of State failed to properly assess the best interests of children, failed to provide for their recreational and developmental needs, and that the reduction in rates was disproportionate and unlawful.
- The third claimants, YT and RG, argued that the Secretary of State discriminated against disabled children, failed to comply with the PSED in relation to sex and disability, and had inadequate arrangements for exceptional support under section 96(2), including lack of publicity and proper assessment mechanisms.
Respondent's Arguments
- The Secretary of State, represented by Mr Sheldon QC, submitted that the legal test is whether the minimum objective standard required by the Reception Directive is met, and that the Secretary of State’s judgment on what constitutes essential living needs is entitled to deference unless irrational or unlawful.
- He contended that the methodology for setting rates in 2014 and 2015 was new, evidence-based, and addressed criticisms in Refugee Action.
- The Secretary of State denied unlawful discrimination, relying on the Court of Appeal’s decision in Blakesley that asylum seekers and nationals are not in analogous situations, and that the right to benefit is that of the parent, not the child.
- He argued that the PSED was complied with through proper inquiry and consideration, and that section 55 of the 2009 Act and Every Child Matters impose procedural duties to have regard to children’s welfare but do not require equivalence or a higher standard than the Reception Directive.
- Regarding disabled persons, the Secretary of State submitted that support for disabled asylum seekers is provided by local authorities and exceptional needs can be addressed under section 96(2), for which there is an adequate system in place.
- He emphasized that the court should not substitute its judgment for that of the Secretary of State on socio-economic policy and that the claimants’ criticisms largely amount to policy disagreements not justiciable errors.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Refugee Action v SSHD [2014] EWHC 1033 (Admin) |
Clarification of the minimum standard required by the Reception Directive and the scope of Secretary of State’s discretion in setting essential living needs. |
The court followed and applied the detailed legal analysis and conclusions of this judgment in assessing the challenged decisions. |
| AL (Serbia) v SSHD [2008] UKHL 42 |
Test for discrimination under Article 14 ECHR: whether differences in otherwise similar situations justify different treatment. |
Applied in assessing whether children of asylum seekers and children of nationals are in comparable situations for discrimination claims. |
| Blakesley v Secretary of State for Work and Pensions [2015] EWCA Civ 141 |
Distinction between asylum seekers and nationals in need of social assistance; no analogy for discrimination claims. |
Relied upon to reject discrimination claims based on differential treatment of asylum seekers and nationals. |
| R (Lumsdon) v Legal Services Board [2015] UKSC 41 |
Principle that EU proportionality applies in assessing compliance with EU Directives. |
Discussed but distinguished; proportionality not engaged once minimum standard under Directive is met. |
| R (SG) v Secretary of State for Work and Pensions [2015] UKSC 16 |
Interpretation of the PSED and its application in discrimination claims involving children. |
Considered in relation to the scope of PSED and relevance of UNCRC to discrimination claims. |
| Bah v United Kingdom (2012) 54 EHRR 21 |
Legitimacy of differential treatment of asylum seekers compared to nationals in social welfare. |
Applied to reject claims that asylum seekers must receive same level of support as nationals. |
| Lumba v SSHD [2011] UKSC 12 |
Requirement for transparency and publication of policies affecting rights. |
Distinguished; no requirement to publish policies for all discretionary support schemes. |
| R (MA) v Secretary of State for Work and Pensions [2014] EWCA Civ 13 |
Requirement for focused awareness of PSED duties and potential impact on protected groups. |
Applied to assess adequacy of PSED compliance. |
| R (Tigere) v Secretary of State for Business, Innovation and Skills [2015] UKSC 57 |
Justification test for discrimination under Article 14 ECHR in education context. |
Discussed but not applied as a different test in this case. |
| R (Hurley & Moore) v Secretary of State for Business, Innovation and Skills [2012] EWHC 201 (Admin) |
Standards for compliance with the PSED including duty of inquiry and evidence gathering. |
Applied in assessing the procedural compliance with PSED. |
| R (Bracking) v Secretary of State for Work and Pensions [2013] EWCA Civ 1293 |
Principles and evidential standards for the Public Sector Equality Duty. |
Applied to evaluate whether Secretary of State had due regard to equality duties. |
Court's Reasoning and Analysis
The court began by affirming the legal framework established in Refugee Action, holding that the minimum standard required by the Reception Directive is an objective standard ensuring a dignified standard of living, respect for human dignity, adequate health, and subsistence needs. The Secretary of State’s judgment on what constitutes essential living needs is entitled to deference and only subject to judicial review on grounds of irrationality or Wednesbury unreasonableness.
Applying this to the 2014 and 2015 Decisions, the court found that the Secretary of State undertook a new, thorough methodology based on up-to-date ONS data and market research, addressing previous criticisms. The court rejected arguments that the Secretary of State had failed to consider erosion of rates since 2007, holding that the 2014 and 2015 reviews started afresh with current data and that retrospective inflation adjustments were not required.
The court considered the individual items comprising the support payments (food, clothing, toiletries, travel, communications) and found the Secretary of State’s assessments reasonable and rational, including the allowance for travel and communications. The court accepted that the weekly payments, taken with free accommodation, healthcare, education, and other support, met the minimum standard required by the Directive.
Regarding discrimination claims, the court held that children of asylum seekers and children of nationals on Income Support are not in “otherwise similar situations” due to differences in immigration status and rights to remain. The entitlement to support is that of the parent, not the child. The court applied the “manifestly without reasonable foundation” test for justification and found the differential treatment justified by legitimate aims of discouraging economic migration and limited resources, consistent with the Reception Directive’s minimum standards.
On statutory duties under section 55 of the 2009 Act and the guidance in Every Child Matters, the court held that these impose procedural duties to have regard to the welfare of children but do not require equivalence or a higher standard than the Directive’s minimum. The Secretary of State’s review was sufficiently child-centric and holistic, considering children’s specific needs within the overall support framework, including universal services. The court rejected claims that the reduction in child support payments breached these duties.
In relation to disability discrimination and the UNCRPD, the court accepted that the weekly payments under section 96(1)(b) are aimed at able-bodied asylum seekers. Disabled asylum seekers are supported by local authorities and may receive additional exceptional support under section 96(2). There was no evidence that disabled children’s needs were unmet or that the Secretary of State’s approach was discriminatory.
Regarding the Public Sector Equality Duty, the court emphasized that it is a procedural duty requiring due regard to equality considerations with a realistic and proportionate approach. The court found that the Secretary of State complied with the PSED in relation to sex and disability, and that the criticisms advanced were not supported by evidence sufficient to demonstrate failure.
On the operation of section 96(2) for exceptional needs, the court found that the Secretary of State had adequate arrangements in place, including liaison with stakeholder groups and publicity, and that requiring evidence of exceptional need is lawful and necessary. The court rejected the claimants’ arguments for a systemic challenge to this support mechanism.
Overall, the court concluded that the challenged decisions complied with the minimum legal standards, were rational and lawful, and that the claimants’ challenges must be dismissed.
Holding and Implications
The court’s final decision is to DISMISS all claims for judicial review brought by the first and second claimants against the 2014 and 2015 Decisions and to refuse permission for judicial review to the third claimants in respect of the 2015 Decision.
This decision confirms that the Secretary of State’s methodology for setting weekly support payments to asylum seekers complies with the minimum standards required by EU law and domestic legislation. The court affirms the scope of the Secretary of State’s discretion in determining essential living needs, subject to meeting the objective minimum standard. It also confirms that differential treatment of asylum seekers and their children compared to nationals and their children is lawful and justified under current legal frameworks.
The ruling underscores the procedural nature of the Public Sector Equality Duty and section 55 duty to safeguard children, holding that the Secretary of State’s approach was adequate and proportionate. The court declines to interfere with socio-economic policy decisions absent irrationality or illegality.
No new precedent altering the legal landscape is established. The direct effect is to uphold the challenged support rates and the Secretary of State’s approach to exceptional needs support under section 96(2).