Secretary of State for the Home Department, R (on the application of) v Chief Asylum Support Adjudicator

A person is entitled to asylum support under section 95 of the Immigration and Asylum Act 1999 only if the statutory eligibility criteria are satisfied. Where a person falls outside section 95, support may be stopped because the statutory entitlement never arose. Regulation 20 of the Asylum Support Regulations 2000 is an exclusive list of suspension and discontinuance grounds for persons otherwise eligible for support; it is not the only route for ending payments to persons who were never eligible. The court also indicated that an adjudicator may adjourn an appeal, or refuse to permit a late new ground where it would prejudice the appellant.

Ms Manzana applied for asylum support and misstated the date of her asylum application. NASS initially approved support, but later found that she had applied in-country and was excluded from section 95 support. It terminated her payments, referring in error to regulation 21(3) of the Asylum Support Regulations 2000.

The Chief Asylum Support Adjudicator allowed her appeal, relying on regulation 20 and R v Asylum Support Adjudicator and the Secretary of State for the Home Department ex parte Hussain. The Secretary of State sought judicial review. The central issue was whether regulation 20 was the exclusive route for discontinuing support once payments had begun, even where the recipient had never been eligible under section 95.

1. Eligibility under section 95. Section 95 of the Immigration and Asylum Act 1999 requires an applicant to be an asylum-seeker or dependant, not excluded from the scheme, and apparently destitute or likely to become destitute within the prescribed period. Ms Manzana was excluded by regulation 4 of the Asylum Support Regulations 2000 and therefore never acquired an entitlement to support.
2. Effect of regulation 20. Regulation 20 provides a complete code for suspending or discontinuing support for persons who satisfy the statutory eligibility conditions, subject to the specified grounds. It does not prevent the Secretary of State from stopping payments to a person outside section 95. The absence of an express provision dealing with that situation is explained by the fact that the entitlement depends on continuing satisfaction of the statutory criteria.
3. Related provisions. Section 114 of the Immigration and Asylum Act 1999 and regulation 18 of the Asylum Support Regulations 2000 provide recovery mechanisms for overpayments. They do not create a continuing entitlement to support after eligibility is shown to be absent. Similarly, regulation 15’s change-of-circumstances provisions are consistent with entitlement ending when the statutory criteria cease to be met.
4. Authorities. Hussain was confined to eligible, destitute asylum-seekers and did not govern a person excluded from section 95. The general principle in Rootkin v Kent County Council was not helpful because the present issue depended on the wording and structure of this statutory scheme.
5. Procedural point and order. The erroneous reference to regulation 21(3) caused no prejudice because Ms Manzana understood the factual issue. More generally, where NASS raises a new eligibility ground late, an adjudicator may adjourn the appeal or refuse to permit the new matter if proceeding would prejudice the appellant. The adjudicator’s decision was quashed and the appeal was directed to be dismissed.

This was a first-instance judicial review in the Administrative Court. The court quashed the Chief Asylum Support Adjudicator’s decision dated 28 May 2002 and directed that Ms Manzana’s appeal be dismissed.