Appeal judges reject single parent asylum seekers’ legal challenge over ‘mean spirited’ cuts to financial support

The Inner House of the Court of Session upheld a judge’s decision to dismiss a legal challenge to changes in the amount of cash payable to asylum seekers, who are not eligible for mainstream benefits, which was reduced from £52.96 per week for each child to £37.75 per week per person.

‘Essential living needs’

The Lord President, Lord Carloway, sitting with Lord Menzies and Lord Brodie, heard that the petitioners NN and OO were appealing against decisions of the Lord Ordinary to refuse their petitions for judicial review of the level of asylum support payable under section 95 of the Immigration and Asylum Act 1999. 

Following upon a UK Government review in 2015, which was a consequence of the successful challenge in R (Refugee Action) v Secretary of State for the Home Department [2014] EWHC 1033 (Admin), the Asylum Support (Amendment No. 3) Regulations 2015 reduced the amount of cash payable.

The petitioners challenged the changes on the grounds that the Home Secretary acted in breach of: the Reception Directive, which lays down minimum standards for asylum seekers; articles 21 and 24 of the Charter of Fundamental Rights of the European Union (CFR); article 14, when read with article 8, of the European Convention on Human Rights; and section 55 of the Borders, Citizenship and Immigration Act 2009. 

It was also argued that the Secretary of State acted “in breach of the public sector equality duty” (PSED) in section 149 of the Equality Act 2010, in so far as she failed to have regard to the protected characteristic of sex/gender in respect of single parent households - the majority of which are headed by women. 

The petitioners further challenged the lawfulness of regulation 9(4) of the Asylum Support (AS) Regulations 2000 insofar as it excluded certain items from the definition of the “essential living needs” of children, in particular toys and computers.

The Equality and Human Rights Commission, which intervened in the case, argued that the Lord Ordinary’s treatment of the PSED had been “unduly narrow”; the Secretary of State had been required to act compatibly with the articles 3, 14 and A1P1 European Convention rights of those affected by the reduction in asylum support; in reducing the level of asylum support the Secretary of State had been acting within the scope of EU law and had been bound to act compatibly with article 24 of the CFR; and the Secretary of State should have had regard to the importance of meeting the requirements of articles 3, 28 and 31 of the UN Convention on the Rights of the Child (UNCRC).

‘Legislation compatible with EU law’

Refusing the appeal, the judges noted that the issues raised had already been addressed in great detail in the High Court of Justice and the Court of Appeal in England and Wales, and observed that the respondent’s decision to reduce the amount payable was based on ONS data and comparisons with the support available in other EU countries.

Delivering the opinion of the court, the Lord President said: “The general terms of the 2000 Regulations mirror the provisions of the 1999 Act. The fundamental question is whether, having provided free accommodation, heat and light, and assuming that other matters, including free health care and education, are also available, setting the level at ‘essential living needs’ is compatible with the Reception Directive. The Directive requires (art 13.2) Member States to provide ‘conditions to ensure a standard of living adequate for the health of applicants and capable of ensuring their subsistence’. 

“There is, for the reasons given in R (Refugee Action), R (SG and others) and R (JK (Burundi)), no inconsistency between the use of the phrase ‘essential living needs’ in the 1999 Act and the conditions described in the Directive. There is, again for the reasons given in the cases from England and Wales, no conflict between ‘essential living needs’ and the requirement to consider or promote the best interests of the child, which occurs in both the Directive (art 18.1) and the domestic legislation (2009 Act, s.55(1)) with its related guidance. 

“Put in general terms, the provision of free accommodation, heat, light, health care and education, coupled with cash to meet ‘essential living needs’ complies with a requirement to take into account the best interests of the child as a primary consideration… What is evident is that the test in the 1999 Act is compatible with that in the Directive which in turn complies with the CFR. On that reasoning the first, second and fourth grounds of appeal fall to be rejected.”

‘Mean spirited, but not unlawful’

Lord Carloway added: “Section 149 of the 2010 Act, which contains the PSED, is relatively precise in describing what is required of a public authority. It is to have ‘due regard’ to certain specified matters. Having ‘due regard’ is explained in the section itself. his case, the matters which were taken into account are clear from the descriptions of the review and the content of the explanatory memorandum to the AS Regulations 2015.

“Based on the material presented to her in the review, the Secretary of State was entitled to reduce the rates payable to children. There was also material which merited the exclusion of certain items in relation to children, notably computers, toys and entertainment. This was not done on the basis that children were to be deprived of these. Rather, the free provision of these items, at least at certain times, in libraries, schools, nurseries and elsewhere met the need. 

“The casual observer may regard the reduction in the level of child support, and the exclusion of items which give pleasure to children, as somewhat mean spirited, but that will not suffice to justify a successful review of governmental action which has followed an in-depth review of what was required to meet the statutory test, itself deemed to be Directive compliant.” 

“On the discrimination issues,” the court concluded, “the reasoning in R (SG and others), as endorsed in R (JK (Burundi)) is sound. As was said in Blakesley v Secretary of State for Work and Pensions [2015] 1 WLR 3150 (Jackson LJ at paras 65 and 66) no analogy or equivalence can be drawn between asylum seekers and those already having a right to be, or leave to remain, in the United Kingdom. In any event, there was legitimate purpose to having two different regimes, notably ensuring that public expenditure did not exceed that required to meet international obligations. 

“Having regard to the levels of support available in terms of accommodation, furnishings, heat and light, health care, education and other free services together with the cash provided to meet essential living needs, there could be no breach of articles 3 and 8 of the European Convention. For the reasons given in relation to the 2010 Act, there is no breach of article 14. A1P1 does not arise directly in the case.”