August 2023 – Support for Asylum Seekers Unlawful

01/08/2023

Five claimants who were asylum seekers brought judicial review claims in relation to the provision of accommodation and support to meet their essential living needs that they were entitled to under section 95 while their claims for asylum were being considered.

The main issues were:

Whether the additional support the Home Secretary must provide to pregnant women and children under three years old must be given by way of cash payment or whether it can be by provision in kind

The significant delays in deciding an application under section 95 and in one case, the making of payments once a support decision had been made

A claim for damages in relation to an alleged breach of Article 3 of the European Convention on Human Rights

All five claims were either conceded ahead of the hearing by the Home Secretary or allowed by the High Court on the basis that the treatment of each claimant was unlawful.

Before the pandemic, asylum seekers requesting section 95 support would first be provided with initial accommodation, which was full board. This would typically be for a short period, one that corresponded to the time the Home Secretary needed to take a decision on the section 95 application and make different longer-term provision for the asylum claimant in what is referred to as dispersal accommodation. Dispersal accommodation is self-catered accommodation. The Home Secretary would meet the costs of essential living needs by a cash payment (provided through the Aspen card).

The court highlights a combination of reasons why the Covid pandemic upset that balance, including that from the end of March 2020 the Home Secretary ceased to remove asylum claimants from dispersal accommodation whose claims had failed. As a result, each of the five claimants faced some form of delay in provision of cash support and, in some cases, provision of support was only made in kind.

There are a number of important decisions contained within the judgement. Firstly, the court held that the Home Secretary must meet the additional essential living needs of pregnant women, children under 1 year old, and children aged between 1 and 3 years, by making the payments specified in the regulations and that there is no general liberty to meet those needs by provision in kind.

Secondly, that while the impact of Covid on the application system explained why there was a seven month delay in making a financial support payment to one of the claimants, this did not amount to a legal excuse. As a result the court found that a two-month delay before the Home Office decided their section 95 application and a further seven-month delay in helping the family into dispersal accommodation, was unlawful.
Thirdly, in relation to the claim for a breach of Article 3, the court stated that while they accepted the evidence of the claimant which described an existence that was in many respects wretched, particularly for a young child who went without on many occasions, they were not satisfied that this evidence describes matters that reached the high bar that is set for Article 3 ill treatment. As a result this claim failed.