Q, R (on the application of) v Secretary of State for the Home Department

Section 55 of the Nationality, Immigration and Asylum Act 2002 requires an individualised assessment of whether an asylum claim was made as soon as reasonably practicable after arrival. The decision-maker must investigate why the claim was delayed and assess objectively whether the claimant acted reasonably. Fairness requires sufficient questioning, an opportunity to answer adverse concerns, and adequate reasons.

Refusal of support is also unlawful where there is a real risk that destitution will cause treatment contrary to Articles 3 or 8 of the European Convention on Human Rights. The decision-maker must investigate whether any realistic alternative source of support exists. Judicial review may satisfy Article 6 only where the initial process is fair, the facts are properly investigated and adequate reasons are given.

Six conjoined judicial review claims challenged refusals by the Secretary of State to provide asylum support under section 55 of the Nationality, Immigration and Asylum Act 2002. The claimants had arrived either at ports or in lorries, had claimed asylum shortly afterwards, and were left destitute or at risk of destitution.

The issues were whether the Secretary of State had applied the statutory test lawfully, whether the decision-making process was procedurally fair, whether refusal of support engaged Articles 3, 6 or 8 of the European Convention on Human Rights, and what relief was appropriate.

1. Construction of section 55. The claimant bears the burden of satisfying the Secretary of State that the asylum claim was made as soon as reasonably practicable after arrival. The inquiry is individualised. The decision-maker must determine why the claimant did not claim earlier, which involves a subjective inquiry, and then decide objectively whether the claimant acted reasonably. Reliance on an agent’s advice may therefore constitute a valid reason, depending on the advice and surrounding circumstances.
2. Procedural fairness. Because an adverse decision under section 55 is not appealable, fairness requires a reasonable opportunity to explain matters relied upon against the claimant. Relevant circumstances must be investigated, including reliance on advice, alleged incredibility, the journey and any vulnerability or trauma. The claimant must be given an opportunity to rebut a suggestion that the account is incredible. Adequate reasons must explain why support has been refused.
3. Children. Age assessment is difficult. Where there is a genuine doubt whether a claimant is under 18, the benefit of the doubt should be given in accordance with the applicable guidance.
4. Human rights. Section 55(5) preserves the power to provide support where necessary to avoid a breach of Convention rights. Refusal of support does not automatically breach Articles 3 or 8, but the Secretary of State must assess whether there is a real risk that destitution will cause sufficiently serious injury to physical or mental health. The inquiry must include whether friends, relatives, agents or charitable sources provide a realistic alternative. The claimant must be able to reapply if that support proves unavailable.
5. Article 6. Refusal of asylum support concerns a dispute about civil rights and obligations. Judicial review may in principle satisfy Article 6, but only if the initial decision-making process is fair, the relevant facts are properly investigated and adequate reasons are given. On the facts of these claims, those requirements were not met.
6. The decisions under challenge were unlawful. Four decisions were quashed, and declarations were made in relation to Q and J. The claims succeeded. Leave to appeal was granted. Interim support was to be provided pending reconsideration and appeal arrangements.

This was a first-instance judgment. The court granted leave to appeal to the Court of Appeal and directed that notice of appeal be filed promptly.