Salih & Anor v Secretary Of State For Home Department

A public authority exercising a statutory discretion may adopt a policy, but it must not withhold information about an important policy from persons who may need to rely on it. A policy governing support for destitute failed asylum seekers had to be made known sufficiently to those potentially eligible. It was unlawful to treat eviction from existing accommodation as an unstated condition of eligibility. The requirement that an applicant have no other avenue of support added nothing where the applicant was already destitute within the statutory scheme. The court could require the Secretary of State to reconsider the information policy according to law, but would not prescribe a general maximum period for processing support applications.

The claimants were failed asylum seekers who had previously received support under Part VI of the Immigration and Asylum Act 1999. They sought judicial review of the Secretary of State’s practice of not informing potentially eligible persons about accommodation support under section 4 and of delays in providing that support.

Both claimants became destitute after Part VI support ended. They learned of section 4 support through solicitors and received accommodation only after judicial review proceedings began. The central issues were whether the information policy was lawful and whether the delays in arranging support were unlawful.

1. Information policy. The decision not to inform failed asylum seekers who apparently qualified for section 4 accommodation of the existence of the scheme was unlawful and had to be reconsidered. The scheme was an important policy governing the exercise of a statutory discretion. In practice, eligibility was treated as an entitlement, and withholding information could exclude eligible persons from its benefit.
2. The constitutional principle that law and important public policies should be accessible supported that conclusion. The Secretary of State’s concerns about encouraging unfounded applications were unsupported by the evidence. General notification of the scheme was not the same as encouragement to apply. Reliance on lawyers and voluntary organisations as adequate alternative sources of information was also factually unfounded.
3. Eligibility for section 4 accommodation did not require prior eviction from accommodation provided under Part VI. Where a person was destitute within Part VI, the policy requirement that he have no other avenue of support added nothing to the requirement of destitution, since destitution included having no means of obtaining adequate accommodation.
4. The standard notification letter was literally accurate in stating that Part VI support had ended, but it could be understood as indicating that no other support was available. The Secretary of State was required to take that evidence, together with evidence of hardship and false duplicate asylum claims, into account when reconsidering the policy.
5. Delay. The delays in the individual cases were inadequately explained, particularly because the applicants were destitute and accommodation could be arranged immediately when required by the court. The court would not, however, prescribe a general period within which all applications had to be determined. Legality depended on the facts of individual cases and changing administrative circumstances.
6. The Secretary of State was ordered to reconsider the practice concerning information about hard cases support in accordance with law. The claimants were awarded their costs, including the costs of the permission and interim relief applications.

First-instance judicial review proceedings. The Secretary of State was ordered to reconsider the information policy in accordance with law.