Satu, R (on the application of) v London Borough Of Hackney

Permission to appeal may be granted where the proposed argument was not advanced below and raises a substantial point of statutory validity affecting a number of people, even though the judge is not persuaded that the appeal has a real prospect of success. The court may require the argument to be put clearly in writing before the substantive appeal is heard. This judgment determined no issue on the validity or construction of the asylum-support regime.

The applicant was an asylum seeker whose asylum claim had failed but who relied on Immigration and Asylum Act 1999, section 94(5), because her household included a child under 18. She received support under the Asylum Support (Interim Provisions) Regulations 1999, but argued that the payments were lower than those available under earlier arrangements or the later Asylum Support Regulations.

The application was for permission to appeal from the Divisional Court’s judgment, [2002] EWHC 952 (Admin). The proposed appeal raised an argument, not made below, that the interim regulations were ultra vires the 1999 Act, particularly section 95(13) and Schedule 9. The central issue at this stage was whether permission should be granted and the proposed statutory argument heard by a full court.

1. Permission granted. Lord Justice Schiemann was not convinced that the appeal had a real prospect of success, but granted permission because the proposed argument had not been addressed by the Divisional Court and raised a potentially important question about the validity of the Asylum Support (Interim Provisions) Regulations 1999.
2. The proposed ultra vires argument was that section 95(13) and Schedule 9 of the Immigration and Asylum Act 1999 authorised temporary support only for the period before section 95 came into force. Since section 95(13) came into force on the passing of the Act under section 170(3), it was argued that the interim regulations could not lawfully continue to govern support after that point.
3. The argument was said to be reinforced by ministerial statements that asylum seekers would not generally be worse off under the new arrangements, and by dicta of Newman J in R v Derby County Council ex parte Bajric (Crown Office reference CO/1139/2000, 14 August 2000). The judge stated that he saw some force in the Divisional Court’s comments on that point, but made no final determination of the statutory issue.
4. The applicant was required to serve a written exposition and skeleton argument, including on the Treasury Solicitor. The matter was directed to be heard before three Lords Justices as soon as practicable because it potentially affected a number of people and continuing uncertainty was undesirable.
5. Application granted. No order for costs.

• Court of Appeal (Civil Division) — permission to appeal granted from the Divisional Court’s judgment, [2002] EWHC 952 (Admin). The Court of Appeal did not decide the substantive ultra vires argument.
• Divisional Court of the High Court — judgment appealed; the citation is [2002] EWHC 952 (Admin).