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

Eligibility for accommodation under section 4 of the Immigration and Asylum Act 1999 and regulation 3(2)(b) of the Immigration and Asylum (Provision of Accommodation to Failed Asylum-Seekers) Regulations 2005 requires a two-stage inquiry. The decision-maker must first determine whether the applicant is unable to leave the United Kingdom. Only then is it necessary to decide whether that inability results from a physical impediment to travel or another medical reason.

“Unable” means “not able”. It does not require literal impossibility, but the regulation contains no additional test of reasonableness, undesirability or inadvisability. Medical evidence that continued treatment in the United Kingdom would benefit the applicant is insufficient unless it establishes an inability to leave.

The Secretary of State sought judicial review of three decisions by asylum support adjudicators concerning failed asylum seekers suffering from tuberculosis. Each adjudicator had allowed an appeal and directed that the applicant was entitled to accommodation under section 4 of the Immigration and Asylum Act 1999.

The central issue was the proper construction and application of regulation 3(2)(b) of the Immigration and Asylum (Provision of Accommodation to Failed Asylum-Seekers) Regulations 2005, which concerns a person unable to leave the United Kingdom by reason of a physical impediment to travel or some other medical reason.

1. The application for judicial review was allowed in all three cases. The respective adjudications were quashed.
2. Regulation 3(2)(b) contains two distinct limbs. The first requires the applicant to be unable to leave the United Kingdom. The second requires that the inability arise from a physical impediment to travel or some other medical reason. Decision-makers must address those questions sequentially.
3. “Unable” has its ordinary meaning of “not able”. It is a higher threshold than being undesirable, inadvisable or medically disadvantageous, but it does not impose literal impossibility. The regulation contains no warrant for importing a requirement of reasonableness, because the draftsman used “reasonable” in regulation 3(2)(a) and “viable” in regulation 3(2)(c).
4. The guidance in Policy Bulletin 71 could not replace the statutory test. A suggested requirement for a doctor’s letter stating that an applicant was unfit to travel did not itself define the legal test.
5. In Osman and Yillah, the medical evidence showed the importance of continued treatment and accommodation, but did not establish an inability to leave the United Kingdom. The adjudicator therefore applied the wrong test.
6. In Ahmad, the consultant’s statement that the applicant was unfit to travel referred, on a fair reading, to the medical desirability of remaining for treatment and monitoring. It did not establish that he was unable to leave on a particular day.
7. A serious risk of contagion to other passengers might constitute a medical reason making a person unable to leave, but no such evidence existed in these cases.

The claim concerned three decisions of asylum support adjudicators allowing appeals against decisions by the Secretary of State. The Administrative Court quashed all three adjudications.