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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Secretary of State for the Home Department, R (on the application of) v Chief Asylum Support Adjudicator [2006] EWHC 3059 (Admin) (30 November 2006) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2006/3059.html Cite as: [2006] EWHC 3059 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		30th November 2006

JUDGE GILBART QC:

1. In this matter, The Home Secretary brings a claim for judicial review against the Chief Asylum Support Adjudicator ("CASA"), with permission having been granted by Lloyd-Jones J on 3^rd March 2006. The claim arises out of the decision of the CASA on 3^rd October 2005 to dismiss the appeal of the Interested Party against the decision of the Home Secretary on 18^th August 2005 that Ms Malaj did not qualify for support under section 95 of the Immigration and Asylum Act 1999.
2. The Home Secretary contends that the CASA had no jurisdiction to hear the appeal, and has brought these proceedings to establish the limits of the CASA's jurisdiction.
3. I shall deal with the matters as follows

(a) Identifying the legislation and relevant regulations

(b) The decisions in question

(c) The contentions of the parties

(d) My conclusions.

4. Section 95 of the Immigration and Asylum Act 1999 reads

"95. - (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.

(3) For the purposes of this section, a person is destitute if-

(a) he does not have adequate accommodation or any means of obtaining it (whether or not his other essential living needs are met); or

(b) he has adequate accommodation or the means of obtaining it, but cannot meet his other essential living needs.

(4) If a person has dependants, subsection (3) is to be read as if the references to him were references to him and his dependants taken together.

(5) In determining, for the purposes of this section, whether a person's accommodation is adequate, the Secretary of State-

(a) must have regard to such matters as may be prescribed for the purposes of this paragraph; but

(b) may not have regard to such matters as may be prescribed for the purposes of this paragraph or to any of the matters mentioned in subsection (6).

(6) Those matters are-

(a) the fact that the person concerned has no enforceable right to occupy the accommodation;

(b) the fact that he shares the accommodation, or any part of the accommodation, with one or more other persons;

(c) the fact that the accommodation is temporary;

(d) the location of the accommodation.

(7) In determining, for the purposes of this section, whether a person's other essential living needs are met, the Secretary of State-

(a) must have regard to such matters as may be prescribed for the purposes of this paragraph; but

(b) may not have regard to such matters as may be prescribed for the purposes of this paragraph.

(8) The Secretary of State may by regulations provide that items or expenses of such a description as may be prescribed are, or are not, to be treated as being an essential living need of a person for the purposes of this Part.

(9) Support may be provided subject to conditions.

(10) The conditions must be set out in writing.

(11) A copy of the conditions must be given to the supported person.

(12) Schedule 8 gives the Secretary of State power to make regulations supplementing this section.

5. An "asylum seeker" is defined by section 94(1) as

" a person who is not under 18 and has made a claim for asylum which has been recorded by the Secretary of State but which has not been determined."

6. Sections 96-98 deal with the types of support which are available.
7. The Asylum Support Regulations 2000 came into force in April 2000. I refer to Regulations 3 and 4.

3. (1) Either of the following  -

(a) an asylum-seeker, or

(b) a dependant of an asylum-seeker, may apply to the Secretary of State for asylum support.

(2) An application under this regulation may be  -

(a) for asylum support for the applicant alone; or

(b) for asylum support for the applicant and one or more dependants of his.

(3) The application must be made by completing in full and in English the form for the time being issued by the Secretary of State for the purpose; and any form so issued shall be the form shown in the Schedule to these Regulations or a form to the like effect.

(4) The application may not be entertained by the Secretary of State unless it is made in accordance with paragraph (3).

(5) The Secretary of State may make further enquiries of the applicant about any matter connected with the application.

(6) Paragraphs (3) and (4) do not apply where a person is already a supported person and asylum support is sought for a dependant of his for whom such support is not already provided (for which case, provision is made by regulation 15).

Persons excluded from support

4.  -  (1) The following circumstances are prescribed for the purposes of subsection (2) of section 95 of the Act as circumstances where a person who would otherwise fall within subsection (1) of that section is excluded from that subsection (and, accordingly, may not be provided with asylum support).

(2) A person is so excluded if he is applying for asylum support for himself alone and he falls within paragraph (4) by virtue of any sub-paragraph of that paragraph.

(3) A person is so excluded if  -

(a) he is applying for asylum support for himself and other persons, or he is included in an application for asylum support made by a person other than himself;

(b) he falls within paragraph (4) (by virtue of any sub-paragraph of that paragraph); and

(c) each of the other persons to whom the application relates also falls within paragraph (4) (by virtue of any sub-paragraph of that paragraph).

(4) A person falls within this paragraph if at the time when the application is determined  -

 (a) he is a person to whom interim support applies; or

(b) he is a person to whom social security benefits apply; or

(c) he has not made a claim for leave to enter or remain in the United Kingdom, or for variation of any such leave, which is being considered on the basis that he is an asylum-seeker or dependent on an asylum-seeker.

(5) For the purposes of paragraph (4), interim support applies to a person if  -

 (a) at the time when the application is determined, he is a person to whom, under the interim Regulations, support under regulation 3 of those Regulations must be provided by a local authority;

(b) sub-paragraph (a) does not apply, but would do so if the person had been determined by the local authority concerned to be an eligible person; or

(c) sub-paragraph (a) does not apply, but would do so but for the fact that the person's support under those Regulations was (otherwise than by virtue of regulation 7(1)(d) of those Regulations) refused under regulation 7, or suspended or discontinued under regulation 8, of those Regulations;

and in this paragraph "local authority", "local authority concerned" and "eligible person" have the same meanings as in the interim Regulations.

(6) For the purposes of paragraph (4), a person is a person to whom social security benefits apply if he is  -

(a) a person who by virtue of regulation 2 of the Social Security (Immigration and Asylum) Consequential Amendments Regulations 2000(6 ) is not excluded by section 115(1) of the Act from entitlement to  -

(i) income-based jobseeker's allowance under the Jobseekers Act 1995(7 ); or

(ii) income support, housing benefit or council tax benefit under the Social Security Contributions and Benefits Act 1992(8 );

(b) a person who, by virtue of regulation 2 of the Social Security (Immigration and Asylum) Consequential Amendments Regulations (Northern Ireland) 2000(9 ) is not excluded by section 115(2) of the Act from entitlement to  -

 (i) income-based jobseeker's allowance under the Jobseekers (Northern Ireland) Order 1995(1 ); or

(ii) income support or housing benefit under the Social Security Contributions and Benefits (Northern Ireland) Act 1992(1 );

(7) A person is not to be regarded as falling within paragraph (2) or (3) if, when asylum support is sought for him, he is a dependant of a person who is already a supported person.

(8) The circumstances prescribed by paragraphs (2) and (3) are also prescribed for the purposes of section 95(2), as applied by section 98(3), of the Act as circumstances where a person who would otherwise fall within subsection (1) of section 98 is excluded from that subsection (and, accordingly, may not be provided with temporary support under section 98).

(9) For the purposes of paragraph (8), paragraphs (2) and (3) shall apply as if any reference to an application for asylum support were a reference to an application for support under section 98 of the Act.

8. The phrase " be entertained" also appears in Regulation 21, to which Miss Grange drew my attention

21 (1) Where  -

 (a) an application for asylum support is made,

(b) the applicant or any other person to whom the application relates has previously had his asylum support suspended or discontinued under regulation 20, and

(c) there has been no material change of circumstances since the suspension or discontinuation,

the application need not be entertained unless the Secretary of State considers that there are exceptional circumstances which justify its being entertained.

(2) A material change of circumstances is one which, if the applicant were a supported person, would have to be notified to the Secretary of State under regulation 15.

(3) This regulation is without prejudice to the power of the Secretary of State to refuse the application even if he has entertained it.

9. Section 103 of the Act deals with appeals.

"103. - (1) If, on an application for support under section 95, the Secretary of State decides that the applicant does not qualify for support under that section, the applicant may appeal to an adjudicator.

(2) If the Secretary of State decides to stop providing support for a person under section 95 before that support would otherwise have come to an end, that person may appeal to an adjudicator.

(3) On an appeal under this section, the adjudicator may-

(a) require the Secretary of State to reconsider the matter;

(b) substitute his decision for the decision appealed against; or

(c) dismiss the appeal.

(4) The adjudicator must give his reasons in writing.

(5) The decision of the adjudicator is final.

(6) If an appeal is dismissed, no further application by the appellant for support under section 95 is to be entertained unless the Secretary of State is satisfied that there has been a material change in the circumstances.

(7) The Secretary of State may by regulations provide for decisions as to where support provided under section 95 is to be provided to be appealable to an adjudicator under this Part.

(8) Regulations under subsection (7) may provide for any provision of this section to have effect, in relation to an appeal brought by virtue of the regulations, subject to such modifications as may be prescribed.

(9) The Secretary of State may pay any reasonable travelling expenses incurred by an appellant in connection with attendance at any place for the purposes of an appeal under this section."

10. That section is to be replaced as a result of an amendment by section 53 of the Nationality, Immigration and Asylum Act 2002, which is not yet in force. When in force, section 103 of the 1999 Act will read as set out below. The new subsection (4) is of particular importance

'103 Appeals: general

(1) This section applies where a person has applied for support under—

(a) section 95,

(b) section 17 of the Nationality, Immigration and Asylum Act 2002, or

(c) both.

(2) The person may appeal to an adjudicator against a decision that the person is not qualified to receive the support for which he has applied.

(3) The person may also appeal to an adjudicator against a decision to stop providing support under a provision mentioned in subsection (1).

(4) But subsection (3) does not apply—

(a) to a decision to stop providing support under one of the provisions mentioned in subsection (1) if it is to be replaced immediately by support under the other provision, or

(b) to a decision taken on the ground that the person is no longer an asylum-seeker or the dependant of an asylum-seeker.

(5) On an appeal under this section an adjudicator may—

(a) require the Secretary of State to reconsider a matter;

(b) substitute his decision for the decision against which the appeal is brought;

(c) dismiss the appeal.

(6) An adjudicator must give his reasons in writing.

(7) If an appeal under this section is dismissed the Secretary of State shall not consider any further application by the appellant for support under a provision mentioned in subsection (1)(a) or (b) unless the Secretary of State thinks there has been a material change in circumstances.

(8) An appeal under this section may not be brought or continued by a person who is outside the United Kingdom."

11. The central issue in this matter is this. If an application for support is resisted by the Home Secretary on the basis that that person is not an asylum seeker, does the CASA have jurisdiction to entertain an appeal under s 103(1) of the Act ? The Home Secretary says no; the CASA says yes. It is apposite in this case to see what happened in the case of the actual application in question.
12. Ms Malaj applied in writing on the prescribed form in June 2005. She is an Albanian. She stated on the form that she was an asylum seeker and had been supporting herself since arrival in the UK by what she called " Asylum Support"
13. On 18^th August 2005, a letter was issued by a Ms Natasha Notice of the Immigration and Nationality Directorate of the Home Office, giving the Home Secretary's response (to use a neutral word for the present) to the application. It reads in part

" You have applied to the National Asylum Support Service (NASS) for support under section 95 of the Immigration and Asylum Act 1999. The Secretary of State has considered all of the information in your application and made any necessary enquiries. However, he has decided that you do not qualify for NASS support, and your application for support is therefore refused. The reason why you do not qualify for NASS support is explained below:

1. You applied for asylum on 28^th November 1999…..(which was) refused on 02 March 2001.

2. You applied for Family ILR on 7^th March 2005 and was (sic) refused on 7^th March 2005

3. You have no further right of appeal against your refusal of asylum. Your appeal rights were exhausted on 6^th February 2002

4. You are therefore no longer an asylum seeker, or a dependant of an asylum seeker, as defined………….and the Secretary of State has decided not to entertain your application for support under section 95 of the 1999 Act

You ceased to be asylum seekers on 6^th February 2002 and as your child was not born until 28 December 2003 you do not qualify for Section 95 support…..

You must now leave the United Kingdom………."

14. It will be noted that

(a) The Secretary of State nowhere contended that he could not consider the application

(b) He made a decision that she did " not qualify for NASS support" and gave reasons based on matters of fact

(c) He stated that the application was "refused" after he had "considered all the information in your application and after any necessary enquiries"

(d) The phrase " do not qualify for support" is exactly the phrase used in section 103(1) of the Act.

15. Ms Malaj appealed to the Asylum Support Adjudicator (" ASA"). The appeal was determined on 28^th September 2005, with a copy of the written reasons for the decision being dated 3^rd October 2005. Given the submissions made by the Secretary of State about the availability of remedies (which I describe later) it is apt to note how swiftly the case was dealt with.
16. However before the appeal was determined the Home Office wrote to CASA on 21^st September 2005, and now contended that , for the reasons given in its letter of 18^th August 2005 (wrongly referred to as the 18^th July 2005 in the letter of 21^st September), section 103(1) of the Act did not apply, and the ASA had no jurisdiction to hear the appeal. It went on " If the appellant has evidence that she believes shows she is still an asylum seeker or a dependant of an asylum seeker , she should pass this on to NASS immediately. …."
17. This issue had arisen in a previous case before the CASA in May 2004 (the Tembo case). She therefore very sensibly invited submissions from the Home Office , who put before her the arguments which it has put before this court. I shall set them out below.
18. The Chief Asylum Support Adjudicator Mrs Storey referred to the Tembo decision and noted that the Home Secretary had not challenged it by way of judicial review. She noted that Regulation 3 of the Regulations stated that an asylum seeker could apply to the Secretary of State for support, and that the only reference to the Secretary of State not being able to " entertain the application" was if it was not in the form prescribed by Regulation 3(3). She also noted the fact that under Regulation 21, the Home Secretary could entertain a second application for support if there were exceptional circumstances which justify its being entertained.
19. She referred to the exclusion of certain categories of person by Regulation 4, and to the terms of section 103 both in its current form, and that to which it will be changed once the amending legislation is in force.
20. She concluded that a right of appeal did exist, but then rejected the appeal on its merits, and agreed that on the facts Ms Malaj was not qualified to section 95 support, because she had not been an asylum seeker since February 2002.
21. The Home Secretary has sustained his challenge to the CASA's jurisdiction before this court. Miss Grange's contentions for the Home Secretary are these;

(a) Section 95 is concerned with asylum seekers or their dependants. A failed asylum seeker does not fall within the definition of " asylum seeker" in section 94(1) , and therefore cannot receive support under section 95;

(b) The Regulations permit applications by asylum seekers or their dependants (see Regulation 3). No application by a failed asylum seeker could be made because they are ineligible for support;

(c) Regulation 4 excludes classes of persons who would otherwise fall within section 95(1). They too are unable to appeal under s 103;

(d) The Home Secretary did not have to consider such classes of application;

(e) The passages in the judgement of Laws LJ (which was agreed by Buxton LJ and the Vice Chancellor) in Dogan v Secretary of State for the Home Department and Chief Asylum Support Adjudicator [2003] EWCA Civ 1673 which state that there is such a right of appeal are obiter dicta, or alternatively per incuriam; (I set them out below)

(f) The judgement of Sir Richard Tucker in The Queen (on the Application of Mahmud) v Secretary of State for the Home Department and Asylum Support Adjudicator [2005] EWHC 563 is to be preferred.

(g) It is a waste of public resources for such appeals to be made.

(h) The fact that section 103 is to be amended does not mean that it is accepted that a right of appeal has existed. There is the potential for inequality between those who are not asylum seekers and those who are but whose support has been stopped.

22. Mr Otty QC makes the following submissions for the CASA in his skeleton

(a) On the plain words of section 103(1) there is a right of appeal against a decision that the applicant does not qualify for support. That includes a rejection of a claim on the basis that the applicant falls outside the ambit of section 95;

(b) The passages in the judgement of Laws LJ were neither obiter dicta nor per incuriam;

(c) Contrary to the later claims by the Home Secretary that he does not have to decide on an application by a person whom he decides is not an asylum seeker, he actually made a decision in this case, which is contrary to the stance he now adopts;

(d) The amendment to section 103 shows that a right of appeal does exist. It is being curtailed by the replacement section which has been enacted but is not yet in force.

( I stopped Mr Otty before he had developed (b) to (d) in argument)

Discussion and conclusions

23. In my judgement the central flaw in the Home Secretary's case is that he has misunderstood the nature of the process. Section 95 describes the class of persons to whom the Secretary of State may offer support. When he receives an application, the Home Secretary must determine if the criteria for support are met; in other words, whether as section 103 puts it, the applicant " qualifies for support under the section." There may be disputes on matters of law or fact. The purpose of section 103 is to enable disputes to be adjudicated upon, and swiftly, as happened here. The ASA will be bound to dismiss an appeal if s/he finds that the person falls outside the definition of " asylum-seeker" as that person would not then qualify for support.
24. One can see a number of types of case where there could be real factual disputes; for example whether a person falls within the definition of " dependant" in section 94(1), when (for example) there could be arguments of fact and degree on the degree of dependence which existed. Miss Grange was driven to submit that where the Secretary of State had made factual findings which led to a finding that an applicant was not an asylum seeker or a dependant of one, then the only remedy for the applicant would be in judicial review, and no use could be made of the statutory appeals system, which plainly operates swiftly and conveniently, and will result in appeals being dismissed if the persons making them do not qualify for support.
25. I regard such an outcome as not only highly undesirable but also quite artificial, and in conflict with the clear meaning of section 103(1) , which gives a right of appeal where the issue of qualification for support is in issue, whatever that reason may be. It will be noted that it does not limit the right of appeal to " asylum seekers" but grants it to a person who has applied for section 95 support. If Parliament had intended to limit the right to appeal to "asylum-seekers" as defined, it could have done so.
26. Parliament's subsequent amendment of section 103 would be quite unnecessary if the Home Secretary's case was correct. It would have restricted a right of appeal which, it is now argued, never existed anyway. Parliament has chosen to restrict the right of appeal by those who are no longer asylum seekers or their dependants. I reject the argument of the Home Secretary that the claimed potential inequality between those who are not asylum seekers, and those who are former asylum seekers, shows that the interpretation of s 103 he contends for is correct. I do not see why those two groups must necessarily be treated in the same way. In the one case it has been determined that they have no claim for asylum, or they have abandoned any claim: in the other no such determination has been made. But in any event if there be any inequality it has come about through the enactment of the revised section 103 (1), and not the interpretation of s 103 before the amendment takes effect.
27. Although no question of estoppel can arise, I am comforted in my interpretation by the manner in which the actual decision of 18^th August 2005 was dealt with. The Home Secretary treated the application as properly made, and dealt with it on its merits. The subsequent claimed lack of jurisdiction is very hard to reconcile with that approach.
28. I gain no assistance at all from The Queen (on the Application of Mahmud) v Secretary of State for the Home Department and Asylum Support Adjudicator [2005] EWHC 563. It was a decision on a renewed application for permission to apply for judicial review. It was a short ex tempore judgement only. Neither party attended before the learned judge, and he did not have drawn to his attention the judgements of the Court of Appeal in Dogan v Secretary of State for the Home Department and Chief Asylum Support Adjudicator [2003] EWCA Civ 1673, to which I now turn.
29. In Dogan, there was an application by The Home Secretary to quash a decision of the CASA to allow an appeal under section 103(2) of the Act against a stopping of support. Silber J granted the application, and was upheld by the Court of Appeal. Laws LJ gave the main judgement, with which Buxton LJ and the Vice Chancellor agreed . During the course of his judgement at paragraph 6 Laws LJ said (my italics)

"6.       Before leaving the statute I should offer a word of explanation concerning non-qualification appeals under Section 103 (1).  Section 95 (3) to (8) explain what is meant by "destitute" for the purposes of the section.  I need not read them out beyond the citations I have already given from subsections (5) and (6).  The Secretary of State might, no doubt, decide in a particular case that the asylum seeker is not destitute and so decline support.  In that case a non-qualification appeal would lie under Section 103 (1).  But it would also lie if the Secretary of State concluded that the claimant was not an asylum seeker within the meaning of that expression given in the interpretation section, that is Section 94 (1).  It defines "asylum seeker" as -

" ..... a person who is not under 18 and has made a claim for asylum which has been recorded by the Secretary of State but which has not been determined."

There is provision which I need not read as to when a claim will be taken to have been determined.  The Secretary of State might have concluded for one reason or another that the claimant before him does not fall within this definition and then, too, there would be a non-qualification appeal under Section 103 (1)."

30. Later on in his judgement this passage appears at paragraphs 20-3.

"20. The position taken by the appellant and, it seems, by the Chief Asylum Support Adjudicator in substance would allow appeals against the imposition of conditions, or at any rate some conditions, imposed under Section 95 (9). But it is obvious to my mind that the statute has not provided for any such appeal. In a case like the present where the condition in question requires the claimant to re-locate, the appellant's position as to construction in substance entails the availability of a location appeal although it is plainly the legislature's intention that such an appeal will only be accorded to asylum seekers when regulations are made under Section 103 (7). As I have said, none have so far been made. In fairness, Mr Cox disavowed any intention on the facts of this case to run a location appeal, but the point is one of principle and analysis. In truth, as I see it, the legislature in Part VI of the 1999 Act has advisedly provided for specific limited rights of appeal.

21. The appellant's case, with respect to Mr Cox's skilful argument, wholly undermines that approach. If one takes into account the right of appeal given by Section 103 (1) as well as Section 103 (2) right of appeal, Mr Cox's argument ultimately yields a conclusion, or something not far distant from it, that there is a general right of appeal against the Secretary of State's decisions under Section 95. That seeks to re-write the statute, and that is elementarily an illegitimate exercise. These conclusions are unaffected in my judgment by any appeal to the operation of Section 122 relating to children or any distinction between the offer and provision of support.

22. The appellant contends - briefly this morning, but with somewhat more substance in Mr Cox's skeleton argument - that the construction adopted by the judge would allow the Secretary of State to "structure" (as it is put) his decision so as to exclude appeal rights simply by providing in any given case that the provision of support would be time limited, say, for one month or one week, and there would then be no appeal against the time limit. There is nothing in this. Apart from anything else, the Secretary of State is bound by the general law to act fairly, reasonably and in good faith.

23. In my judgment the judge below arrived at the correct conclusion. Section 103 (2) contemplates that Section 95 support has earlier been provided to the claimant and the Secretary of State then stops it - prematurely for whatever reason - before it would otherwise have been stopped."

31. I agree with Miss Grange that the conclusions of Laws LJ on the ambit of section 103(1) in paragraph 6, which he carried through into paragraph 21, were strictly obiter dicta, as the scope of section 103(1) was not the issue before the Court. But be that as it may, they have considerable persuasive force, and support the interpretation of section 103(1) which the CASA has long held, and which I respectfully endorse.
32. It follows that I hold that the Asylum Support Adjudicators can hear an appeal under section 103 (1) which relates to the existence or otherwise of the factual circumstances permitting the grant of support under section 95 of the Act and the making of an application under Regulation 3, and to arguments of law relating to those issues. If the factual circumstances are not established, then the adjudicator will be bound to dismiss the appeal.
33. It follows that this claim for judicial review fails.