Dogan v Secretary of State for the Home Department

Section 103(2) of the Immigration and Asylum Act 1999 confers a stoppage appeal only where support under section 95 has first been provided and is then stopped before it would otherwise have ended.

Support may be granted subject to conditions under section 95(9). If a condition is breached, support was always liable to end under the original arrangement, whether cessation is automatic or discretionary. A stoppage appeal cannot therefore be used to challenge the condition itself, including a relocation condition. Such a challenge would in substance be a location appeal, requiring regulations under section 103(7). Section 103(2) does not create a general appeal against decisions under section 95. The Secretary of State remains bound to act fairly, reasonably and in good faith.

The Secretary of State, through the National Asylum Support Service, provided temporary support under sections 98(1) and 95 of the Immigration and Asylum Act 1999 to an asylum-seeking family in Luton, subject to relocation to Liverpool. When the family did not travel, support in Luton was withdrawn.

The Chief Asylum Support Adjudicator treated the matter as an appeal under section 103(2), partly allowed it, found that adequate notice had not been given and remitted the case for further arrangements. On judicial review, Mr Justice Silber quashed that determination. The appeal concerned whether withdrawal following breach of a relocation condition was a stoppage appeal, or whether the appeal jurisdiction could be used to challenge the condition or location decision itself.

1. Appeal dismissed. The court unanimously upheld Mr Justice Silber’s construction of section 103(2).
2. Lord Justice Laws held that the words of section 103(2) require earlier provision of section 95 support followed by a decision to stop that support prematurely. The provision is not confined to cases where support ends because the claimant ceases to fall within the statutory definition of an asylum seeker in section 94(1).
3. Support may be provided subject to conditions under section 95(9). Where support is conditional on relocation, breach of the condition means that support was always liable to end under the original arrangement. The result is the same whether cessation is automatic or depends on a further discretionary decision. It is therefore not a stoppage before support would otherwise have ended.
4. The appellant’s construction would allow an appeal against the imposition of conditions and, in a relocation case, would effectively create a location appeal. The statutory scheme provides only limited, specific rights of appeal. A location appeal under section 103(7) requires regulations, and none had been made. Sections 103(1) and (2) could not be enlarged into a general appeal against decisions under section 95.
5. The arguments based on section 122 concerning children, and on the distinction between offering and providing support, did not alter the construction. The concern that support might be structured to exclude appeal rights was answered by the Secretary of State’s obligation under general law to act fairly, reasonably and in good faith.
6. Lord Justice Buxton agreed, adding that the letter granting support in the dispersal area could not simultaneously grant and stop the same section 95 support so as to trigger section 103(2). The Vice-Chancellor agreed with both judgments. The appeal was dismissed. There was no application for costs; the appellant’s costs were subject to detailed assessment. Permission to appeal was refused.

• Court of Appeal (Civil Division): On 28 October 2003, dismissed the appeal from the Administrative Court and refused permission to appeal: [2003] EWCA Civ 1673.
• High Court, Administrative Court: On 25 October 2002, Mr Justice Silber acceded to the Secretary of State’s judicial-review claim and quashed the Chief Asylum Support Adjudicator’s determination.
• Chief Asylum Support Adjudicator: On 17 January 2002, held that she had jurisdiction under section 103(2), partly allowed the appeal, found inadequate notice of the proposed dispersal and remitted the matter for further arrangements.