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

Section 4 of the Immigration and Asylum Act 1999 contains no power to provide temporary accommodation while an application for accommodation is being assessed. Parliament deliberately provided a narrower post-asylum support scheme, supplemented by regulations, and the court could not imply an operational scheme that the legislation omitted. Convention rights do not require such an implied power where the statutory scheme itself creates no breach. The Secretary of State must, however, decide urgent applications properly and promptly. Excessive delay may be addressed by administrative action or, where necessary, by case-specific judicial review. The courts should not impose a general decision-making scheme under section 4.

The claimant, a failed asylum seeker, applied for accommodation under section 4 of the Immigration and Asylum Act 1999. Interim accommodation was ordered during proposed judicial review proceedings, but the claimant was later accommodated under Part VI after fresh evidence was accepted as a new asylum claim. His challenge to the Secretary of State’s alleged failure to decide section 4 applications within a reasonable time was therefore academic in his case.

The claimant sought permission to pursue a wider challenge to the lawfulness of the decision-making system, arguing that temporary accommodation should be available pending determination of a destitution application. The central issue was whether such a power or duty could be derived from section 4 and the Convention rights framework.

1. Permission refused. The claim was academic for the claimant, and the proposed wider challenge was not arguable.
2. Section 4 of the Immigration and Asylum Act 1999 is narrower than the Part VI support scheme. It applies to a narrower class and provides a narrower form of support. Accommodation powers arise only after the statutory decision-making process establishes that the relevant criteria are met.
3. The power in section 4 is supplemented by the Immigration and Asylum (Provision of Accommodation to failed Asylum Seekers) Regulations 2005. Those Regulations make no provision for temporary accommodation pending determination. That omission was deliberate, and the court could not imply a conditional duty or operational scheme that Parliament had chosen not to enact.
4. The statutory scheme, construed as a whole, did not lead to a breach of Convention rights. Regulation 3(2)(e), concerning the avoidance of a breach of Convention rights, formed part of the criteria for accommodation but did not create a general interim accommodation power.
5. Although no general temporary accommodation duty existed, the Secretary of State was required to operate a system capable of dealing properly and promptly with urgent section 4 applications. Prolonged delay could create a risk of Convention-rights breaches and should be addressed administratively or, where necessary, through case-specific judicial review.
6. The issue was fact-sensitive in each case. The courts were not the appropriate body to impose a general scheme of operational decision-making under section 4. Costs were awarded to the Secretary of State, subject to the usual order concerning publicly funded costs. Time for any application to the Court of Appeal was extended by seven days.

First-instance judicial review proceedings. An earlier application for interim accommodation was made to Ramsey J, and Owen J subsequently refused permission on the papers. The present court heard an oral renewal of the application for permission and refused it.