AW (Kenya), R (On the Application Of) v Secretary of State for the Home Department

Section 4 of the Immigration and Asylum Act 1999 confers a power to provide facilities for the accommodation of failed asylum seekers. It does not confer a general power to meet all their essential living needs. Facilities may extend beyond the physical accommodation, but they must remain linked to it. Clothing is not so linked. The statutory definition of destitution determines eligibility for section 4 support; it does not define the scope of what may be provided. The separate regulation-making power in section 4(10) is wider and may permit clothing or other specified facilities once regulations are made.

The claimant was a failed asylum seeker receiving accommodation and support under section 4 of the Immigration and Asylum Act 1999. She sought a declaration that the Secretary of State had power under section 4(2) to provide clothing for herself and her child, contending that clothing was an essential living need and fell within facilities for accommodation. The Secretary of State accepted that clothing was an essential living need but disputed the statutory power to provide it. The central issue was whether section 4 supplied a power equivalent to the wider essential-living-needs power under sections 95 and 96.

1. The application for judicial review was dismissed. The Secretary of State had no power under section 4 of the Immigration and Asylum Act 1999, as then in force, to provide clothing for the claimant or her child.
2. Section 4 is headed Accommodation and its provisions are directed to accommodation. The phrase facilities for the accommodation is wider than the physical accommodation itself, but the facilities must be linked to the accommodation. Clothing cannot be so linked.
3. The position differed from the express power in section 96(1) to provide accommodation and other essential living needs to asylum seekers whose claims had not been determined. The definition of destitution in section 95(3), adopted for section 4 by regulation 2 of the Immigration and Asylum (Provision of Accommodation to Failed Asylum-Seekers) Regulations 2005, operated as the gateway to section 4 support. It did not determine what could be provided under that section.
4. The reasoning in R (on the application of Khan) v Oxfordshire County Council [2004] EWCA Civ 309 supported that construction. Even a wide statutory definition of accommodation did not extend to all essential living needs, including clothing, where the item had no connection with the accommodation.
5. The later power in section 4(10), inserted by the Immigration, Asylum and Nationality Act 2006, was distinct. It permitted regulations specifying services or facilities of any kind, rather than facilities linked to accommodation. Draft regulations might therefore alter the position, but they had not yet been made.
6. The claimant was ordered to pay the defendant’s costs, subject to the usual order for a claimant with LSE funding. A detailed assessment of her publicly funded costs was ordered. Leave to appeal was refused, with permission left to the Court of Appeal.

This was a first-instance judicial review. The judge refused leave to appeal and left it to the Court of Appeal to decide whether permission should be granted.