[EIN note: This post was authored and published on 'Law, mostly' in December 2022]
On 16 December 2022, following a one-day trial heard in the High Court in Manchester, Fordham J. made an eyebrow-raising order including declarations that the Home Secretary had unlawfully failed to review the rate of asylum support payments under section 95 of the Immigration and Asylum Act 1999 ('IAA 1999') and had failed to ensure the rate is adequate to meet the essential living needs of asylum seekers. Unbeknown to many, that state of affairs had been so since 14 September 2022. The Home Secretary would continue to be acting unlawfully unless and until she increased the rate, either by a policy decision or by amending the Asylum Support Regulations 2000.
Five days later, in a forensic judgment providing a fuller picture to the declaration (R (CB) v SSHD [2022] EWHC 3329 (Admin) BAILII; TNA), Fordham J. held that the Home Secretary had followed an unlawful process for reviewing the rate of asylum support payments in October 2021 and had unlawfully failed to act on internal advice to increase the rate to keep pace with inflation and to mitigate the consequential rises in the cost of living throughout 2022.
On 22 December 2022, the Home Office announced an increase to the rates of asylum support as follows:
- an interim main rate of £45 to all supported under sections 4 and 95 of the IAA 1999;
- an interim rate of £9.10 for those in full board accommodation supported under section 95 of the IAA 1999;
- removal of the self-catering £35 rate and replaced by the interim £45 rate.
It is anticipated that payments will be processed and applied from January 2023, but will be backdated to 22 December 2022. At the time of writing, gov.uk is yet to be updated to reflect these developments, which appear to have been made by executive policy announcement.
How did we get here?
The rate of asylum support under section 95 of the IAA 1999 is subject to annual review by the Home Office, whose stated intention is to ensure that support is adequate to meet the essential living needs of destitute asylum seekers. Charities and campaigners have long criticised the inadequacy of the rates and the modest increases made over the years (from £36.62 in 2011 to £40.85 in 2021, per person per week) bearing in mind that asylum seekers are prohibited from working or accessing mainstream welfare benefits and many have no means of supporting themselves by reason of the above restrictions that are imposed upon them by the UK government.
In around March 2022, the claimant, 'CB', brought a challenge to the Home Secretary's decision to adopt a new methodology in its 2021 annual review of the section 95 support rate. CB is a mother of 3 children, a domestic abuse survivor and destitute asylum seeker in the UK. The litigation was brought by the Greater Manchester Law Centre.
The legal principles
The Court distilled the relevant principles in challenges to the setting of asylum support rates at §§ 29-38, as derived from a pentalogy of authorities between 2014 and 2021. [1]
Those include:
- the requirement of an objective minimum standard of support which the Defendant cannot lawfully go below;
- the need for asylum support to protect human dignity and ensure a dignified standard of living;
- the assessment of essential living needs is a value judgment to be conducted by the executive rather than the Court;
- the Defendant should make sufficient inquiries to make an informed and rational judgment as to what level of support is required to meet the essential living needs of asylum seekers;
- beyond meeting the minimum standard above, the threshold of review is the high test of Wednesbury unreasonableness or other established public law grounds;
- any significant real terms reduction from previous rates calls for 'justification by careful investigation'; and
- where an error of approach is found (other than a failure to meet the objective minimum standard), constitutionally, it is not for the Court to determine what the correct is.
The Court's reasoning
Issue 1: Unlawful approach to the 2021 support rate review
The Defendant had previously used Office of National Statistics (ONS) data for the lowest 10% income group in the UK as an accurate analogy for how asylum seekers experience inflation. However, for its annual review in October 2021, the Defendant decided to change its methodology to using Consumer Price Index ('CPI') data from the general population based on the prices of a basket of essential goods. Using the CPI data resulted in a lower rise to the rate of asylum support than using the ONS data (CPI: £40.85; ONS: £41.76).
However, in changing the statistical method, the Defendant had failed to identify, explain and support her reasons for the change of approach (§§ 76-80, 85-87). The Court rejected counter-arguments from the Defendant to the effect that the food expenditure of the lowest 10% income group reflected their 'choices' rather than necessity; and that the previous asylum support rate contained sufficient 'headroom' that a modest increase was appropriate. The Home Secretary's approach was thereby irrational and unlawful.
Issue 2: Unlawful 'passivity'
Despite the widely discussed increasing rates of inflation throughout 2022 and regular forecasts from the Bank of England Monetary Policy Committee predicting 10% inflation by the end of 2022, the Home Secretary did not change the section 95 support rate since concluding her annual review in November 2021 (with regulations amending the rate to £40.85 being laid before Parliament in January 2022). The rate was subject to interim review. Civil servants advised the Minister/s on three occasions that the rate should be increased (with the preferred option being to raise it to £45), in light of the CPI rates of inflation. Crucially, the advice concluded that doing nothing was not an option and would be unlawful. The Home Secretary did nothing.
The churn of Ministerial personnel (4 Home Secretaries appointed within 2 months in Autumn 2022) did not provide an adequate explanation for the Defendant's failure to act on the advice of her own department (§ 49).
The Court made a mandatory order requiring the Defendant to change the rate to a sum no lower than £45 – the sum specified by her own departmental advice (§§ 54-55, 95).
Comment
This is quite an extraordinary development with significant financial-legal implications. There are likely to be further issues to be ironed out following several months of unlawful underpayments of support to the 58,000 recipients of section 95 support (and 5,200 recipients of section 4 support). It remains unclear whether the Home Secretary will agree to back-date support payments to 14 September 2022 (the starting point of the illegality found by the Court).
To every rule there is an exception – hallowed constitutional principles included. Having underscored the necessity of judicial restraint and the need to afford appropriate latitude to the executive in the assessment of national asylum support rates, the Court was nevertheless bound to carefully review the Defendant's decision-making. Having done so, it found the Defendant's approach unlawful and ordered her to increase support rates to a minimum of £45.
It is worth stressing the very particular circumstances in which the Court was empowered to make such an order. The Defendant ignored unequivocal advice from its civil servants and failed to grapple with the dramatic rise in the cost of living and its impact of highly vulnerable, destitute asylum seekers with no alternative income. It was this rare alignment of factors that resulted in such an unusual order. In context, the Court has merely required the Defendant to comply with her own fully reasoned advice and undisputed statutory duties.
Public authorities seeking to jettison pre-established and well-functioning methodologies for calculating financial support rates (or other welfare provision) would be well-advised to provide careful consideration and detailed reasoning for adopting different approaches with questionable accuracy.
NOTES:
[1] R (Refugee Action) v SSHD [2014] EWHC 1033 (Admin); R (SG) v SSHD [2016] EWHC 2639 (Admin); R (JK (Burundi)) v SSHD [2017] EWCA Civ 433; R (JM) v SSHD [2021] EWHC 2514 (Admin); R ( AXG) v SSHD [2022] EWHC 56 (Admin).