Asylum seekers’ legal challenge over ‘unlawful’ reduction in state support rejected

The petitioners argued that the 30% cut in asylum support available to them in respect of themselves and their dependent children breached EU law and violated their human rights, but a judge in the Court of Session ruled that there was “no unlawful discrimination”.

Lady Wolffe heard that the petitioners, “O” and “N”, both single-parent asylum seekers with one or more children, were seeking judicial review of changes to the amount of financial support payable to them under regulation 10(2) of the Asylum Support Regulations 2000/704, which was reduced from £43.94 and £52.90 respectively to £36.95 per person following a UK Government review which led to the introduction of the Asylum Support (Amendment No 3) Regulations 2015.

‘Human rights breach’

The petitioners sought reduction of the regulations on the basis that the Secretary of State acted in breach of Council Directive 2003/9/EC - also known as the “Reception Directive” - which laid down minimum standards for the reception of asylum seekers.

It was also submitted that the reduction in support breached 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 (ECHR); and section 55 of the Borders, Citizenship and Immigration Act 2009.

Further, it was argued that the respondent acted in breach of the public sector equality duty (PSED) in terms of section 149 of the Equality Act (2010) in that she failed to have regard to the protected characteristic of sex/gender viz single parent households, the majority of which are headed by women.

Finally, the petitioners sought declarator that regulation 9(4) of the 2000 Regulations was unlawful in so far as, as regards children in general, it excluded toys and other recreational items and he expenses arising out of entertainment from the definition of “essential living needs” for the purposes of section 95 of Immigration and Asylum Act 1999 Act.

The court was told that in England there have been several recent challenges to the level of asylum support, namely, before Popplewell J in R (Refugee Action) v SSHD EWHC 1033 (Admin) and R (SG) v SSHD and another EWHC 2639 (Admin) before Flaux J - both of which were refused

‘Flawed approach’

In the present proceedings, in which the Commission for Equality and Human Rights (CEHR) was given leave to lodge written submissions, the challenge to the reduction of asylum support was advanced on three broad fronts.

First, it was contended that the methodology used by the Secretary of State in reaching the figure of £36.95 was “flawed” and therefore the respondent acted “irrationally or unreasonably”, or failed to take relevant matters into account.

Secondly, it was submitted that the decision to reduce and “flat-line” the previously tiered rates of asylum support was unlawful by reason of breach of (i) the right (of children) to non-discrimination on grounds of immigration status; (ii) the best interests of and need to safeguard and promote the welfare of children; and (iii) the public sector equality duty.

Thirdly, it is argued that the new rate of asylum support was discriminatory, in comparison with the level of mainstream state benefits paid in respect of the children of “settled adults” - those with a right of residence in the UK.

‘No unlawful discrimination’

However, the judge held that the Secretary of State had not acted unlawfully and refused each ground of challenge.

In a written opinion, Lady Wolffe said: “In my view, in the provision of asylum support at the present level, in combination with the other forms of support provided to asylum seekers in the UK, the Secretary of State has complied with the objective minimum standard required under the Reception Directive in respect of asylum seekers and their dependent children. In reaching this conclusion, I am fortified by the careful, thorough and cogently reasoned decision of Flaux J in SG, including his treatment of the heightened standard argument…Nor do I accept the petitioners’ argument that this analysis is flawed.

She added: “I accept that the Secretary of State gave appropriate consideration to what was in the best interests of children in the setting of the rate of asylum support and in her determination of the matters that fell to be excluded from essential living needs, for the reasons given. I also accept that the Secretary of State was not required to ensure equivalence between payments made in respect of asylum seeker children and the children of settled adults in receipt of various forms of state benefit. It follows that neither the reduction per se nor the equalisation of the rate as between adult and child asylum seekers (the petitioners’ ‘flat-lining’) is unlawful on any of the grounds advanced.”

‘Reasonable decision’

It was also argued that collectively, these that the methodology used in reaching the reduced figure was wholly inadequate and so flawed as to justify reduction of the provisions sought.

“However,” the judge said, “I am satisfied that the inquiry conducted for the purposes of the 2015 review was sufficient to enable the Secretary of State to make an informed and rational judgment as to how much was necessary to meet the essential living needs of asylum seekers….While there may be other ways to carry out researches, I am not persuaded that the Secretary of State acted irrationally or failed to have regard to a relevant factor when conducting the review that led to the Amending Regulations.

“I am satisfied that the asylum rate set after the 2015 review was arrived at after careful consideration of all the relevant factors; and that it met the minimum standard of the Reception Directive. Furthermore, it is not Wednesbury unreasonable or demonstrative of error that the level of asylum support is different from, and lower than, the rate in previous years.”

The petitioners further contended that the difference in payments made in respect of children in asylum support as compared with mainstream benefits payable in respect of children of settled adults is discriminatory, contrary to Articles 14 and 8 of the ECHR read together with Article 21 of the CFR, but this ground of challenge also failed.

“In my view, there was no unlawful discrimination on any of the bases the petitioners contended for. Further, any difference in treatment was justified, on the application of the correct test,” Lady Wolffe said.

The petitioners’ challenge on the basis of a breach of the public sector equality duty also failed.