Hostile and inept: the government’s approach to asylum support

KEYWORDS:

• Asylum support
• asylum seekers
• uprating
• sufficient inquiry
• cost of living

Under section 95 of the Immigration and Asylum Act 1999 (IAA 1999), the Government are obliged to provide support and accommodation to asylum seekers who would otherwise be destitute. This responsibility stems from the EU Reception Conditions Directive (2003/9/EC; recast as Directive 2013/33/EU) – which remains ‘retained law’ – the Charter of Fundamental Rights of the European Union and Article 3 of the ECHR, to prevent inhuman and degrading treatment, where work exclusions apply (R (Refugee Action) v SSHD [2014] EWHC 1033 (Admin); R (on the application of Limbuela) v SSHD (2006) 1 AC 396). Restrictions on working mean that welfare support is necessary because once forced migrants arrive in the UK, they are effectively trapped: they cannot return to their countries of origin for fear of persecution and can no longer be returned to other transitional countries in Europe following Brexit and the UK’s withdrawal from the Dublin Regulation. Asylum seekers are thereby at the mercy of the UK Government who over the last three decades have overseen the slow degradation of their living standards (Bales 2013, Mayblin 2017, 2019).

The claimant in R (on the application of CB) v SSHD [2022] EWHC 3329 (Admin) challenged s.95 support levels on two grounds. Firstly, the lawfulness of an uprating decision made by the Secretary of State for the Home Department (SSHD) in November 2021 which changed the methodology for calculating the cost of essential living needs for asylum seekers, bringing the expected uprating down from £41.76 to £40.85 per week (up from the base rate of £39.63). Secondly, the lawfulness of the SSHD’s failure to reconsider or review the rate of asylum support since the uprating was implemented on 21^st February 2022. In a progressive judgment that carefully treads constitutional boundaries, Fordham J makes clear that the SSHD failed in upholding their statutory duty to provide for the essential living needs of asylum seekers and neglected careful consideration of the amount needed to cover such costs. This finding is perhaps unsurprising taking into account the increasingly hostile environment imposed upon forced migrants within the UK, and the pending ‘Illegal Migration Bill’ which is an affront to the right to asylum.

The claimant was a 32-year-old Nigerian national who arrived in the UK in April 2021 alongside her three children aged 6, 7 and 8, the eldest of whom has cerebral palsy and sickle cell disease. The family are survivors of domestic violence. Since December 2021, they were entitled to asylum support and accommodation under s.95 of the Immigration and Asylum Act 1999, receiving £163.40 per week – the equivalent of £5.83 per person per day. In this context, every penny makes a difference. The claimant describes various difficulties: choosing between Calpol or food for her children; choosing which child to buy clothing for; and her inability to afford sanitary products. Problems such as a lost PE kit, spilt milk or dropping a toilet roll down the toilet take a significant toll on such families who are ‘trying to survive on such a little amount’ (para. 19). The SSHD’s calculated ignorance and ineptitude at recognising these struggles during a soaring cost of living crisis becomes clear throughout the judgment and is palpable in Fordham J’s conclusions (para. 87).

The first ground of challenge concerns changes to the support rate calculation leading to a contested uprating decision in November 2021. By way of background, from 2000 onwards, asylum support was set at 70% of the income support rate on grounds that asylum seekers do not have to pay utilities. However in 2008 this link was severed. Instead, increases to asylum support were tied to the Consumer Price Index (CPI) rate of inflation, resulting in a real-terms decrease. In 2011, asylum support rates were frozen and in 2013 Parliament announced that the rates would remain frozen, leading to the 2014 challenge Refugee Action. This significant judgment clarified the extent of the international obligations placed upon the Government in providing asylum support and forced the Government to define the meaning of essential living needs and their relative costs (Bales 2015).

Following Refugee Action, the Home Office reviewed the methodology for calculating the costs of able-bodied asylum seekers’ essential living needs. This ‘robust, evidence-based methodology’ utilised the Office of National Statistics (ONS) published annual survey data about average household spending for the lowest 10% income group in the UK, focusing on food and living costs. In subsequent cases this data was held to be the ‘nearest comparator’ to asylum seekers’ spending costs (R (SG) v SSHD [2016] EWHC 2639) and a means of thorough evidence-based analysis. As the ONS data captures a moment in time, a ‘time-lag-fix’ was introduced to uplift the ONS data by the CPI Index to account for inflation. The ONS data also failed to account for some family meals which were eaten out or via takeaway and so an upwards adjustment was introduced to reflect the particular circumstances of asylum seekers. By 2020, a combination of this ONS data and Home Office market research was being used to assess costs on grounds that certain ONS data such as clothing and footwear only accounted for the routine replacement of clothes whereas asylum seekers would need to purchase a basic wardrobe of three sets of clothing (one on, one clean, one in the wash) – this also applied to footwear; travel; communications; toiletries, healthcare and household cleaning items. The combination of ONS and Home Office research was described as a ‘best evidence’ approach by Flaux J in the later challenge of R (JK (Burundi)) v SSHD [2017] EWHC 433.

On 11 November 2021, the SSHD set the uprating for asylum support at £40.85, using a different methodology from this ‘best evidence’ approach. Instead, the previous rate was used as a baseline to which the September CPI rate was applied. This reduced the potential uprating from £41.76 (under best evidence approach) to £40.85 per week. The first challenge hinges on whether, in making this uprating decision, the SSHD carried out a sufficient inquiry to enable them to make an informed and rational judgement of the cost of meeting the essential living needs of asylum seekers (Refugee Action; SG; Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1975] AC 1014). As noted by Fordham J, this required that the actual costs to asylum seekers be assessed. If those costs were higher than that of the general population, CPI would be an inappropriate method for uplift. However, if those costs were broadly in line with the general population’s cost of living, CPI would be the correct methodology. Fordham J makes clear that the decision to change to the CPI methodology did not involve an informed assessment of the rising costs of asylum seekers’ essential living needs. He also asserts that if the CPI rate was reflective of these costs, then looking backwards, the ‘best method’ approach would have resulted in overpayments. Fordham J was cautious to point out that the Court can only challenge the SSHD’s decision on well recognised public law principles and that the choice of level of weekly cash payments is vested by Parliament in the elected Government. The court is however entitled to assess the rationality of a decision, leading him to conclude, in favour of the applicants, that the uprating decision ‘lacked the justification by careful investigation which was needed for it to be defended as rational’ (para. 87).

The second ground of challenge concerns the SSHD’s failure to review or reconsider the support rates, following the uplift in November 2021 (enforced in February 2022), and in light of their ongoing statutory duty under s.95 IAA 1999 to undertake sufficient inquiry into the amount needed to provide for asylum seekers’ essential living needs. From the date the uplift applied, the CPI rate of inflation used by the SSHD had significantly increased from 3.1% to 5.4% indicating that the cost of living had also increased. By July 2022, CPI had increased further to 10.1%. On 31^st August 2022, an ‘Advice to Ministers’ was issued to the SSHD, recommending an interim review of support rates in light of the rising costs of inflation (and the cost of living) setting out three options: action relating to an uplift to asylum support for the CPI rate of food and drinks only; a one off-payment to supplement additional costs; or the sending out of an invitation to asylum applicants requesting they apply for additional payments under exceptional circumstances. Despite further reminders in September and November 2022, the SSHD failed to make any decision. No evidence was provided to the court demonstrating that the issue was being actively considered, nor was any defence given for the SSHD’s failure to make a decision. On this basis, Fordham J held that the SSHD had abdicated their duties under s.95 and that this passivity was ‘unlawful’ (para. 4),declaring that unless the SSHD increased the rate of asylum support to £45 or above, they would be acting unlawfully and in breach of their statutory duty to ensure that asylum support meets the essential living needs of asylum seekers. Accordingly, a mandatory order was issued stating that ‘the SSHD shall make an immediate increase in the asylum support rate by 10.1% on an interim basis’ (para. 96).

Though determining the actual rate of support at £45 or above would normally be considered ‘political’ and outside the scope of judicial boundaries, Fordham J emphasised that this decision mirrors the chosen language of the Home Office officials who issued the ‘Advice to Ministers’ in which they informed the SSHD that to ‘do nothing’ was ‘unlawful’. This strong judgment in favour of the asylum-seeking community reflects the fact that the Court could not countenance further inaction by the SSHD, who is responsible for ensuring that asylum support ‘promotes, protects and ensures full respect for human dignity, so as to ensure a dignified standard of living’ (Refugee Action para. 87). Despite a favourable outcome in this case, the jury is still out on whether asylum support fulfils these criteria.

Disclosure statement

No potential conflict of interest was reported by the author.