Ahmed, R (on the application of) v Asylum Support Adjudicator & Anor

Section 4 accommodation for a failed asylum-seeker requires destitution and satisfaction of at least one condition in regulation 3(2) of the Immigration and Asylum (Provision of Accommodation to Failed Asylum-Seekers) Regulations 2005. Regulation 3(2)(a) concerns reasonable steps taken in the United Kingdom to leave, or to place the applicant in a position to leave, the United Kingdom. Regulation 3(2)(e) requires a sufficiently evidenced risk that refusal of accommodation would cause a breach of Convention rights. General assertions that return or onward travel may be dangerous are insufficient. The section 4 scheme is a limited hard-cases scheme, not a substitute for asylum protection or a fresh claim.

The claimant, an Iraqi national whose asylum and human rights appeals had failed and whose appeal rights were exhausted, challenged the Secretary of State’s refusal of accommodation under section 4 of the Immigration and Asylum Act 1999 and the Asylum Support Adjudicator’s dismissal of his appeal. He was accepted to be destitute. He argued that he satisfied regulations 3(2)(a), 3(2)(c) and 3(2)(e) of the 2005 Regulations. The central issues were the construction and factual application of regulations 3(2)(a) and 3(2)(e).

1. Claim dismissed. The claimant’s challenge to the Secretary of State’s decision and the Asylum Support Adjudicator’s decision failed on the facts.
2. Regulation 3(2)(c) could not be relied on. The claimant accepted the construction in R (Rasul) v Asylum Support Adjudicator [2006] EWHC 435 (Admin), namely that the condition is satisfied where the Secretary of State has a country-level policy opinion that there is no viable route of voluntary return. The court therefore assumed that decision was correct.
3. Regulation 3(2)(a) is directed to reasonable steps taken in the United Kingdom to leave, or to place the applicant in a position to leave, the United Kingdom. Its example concerning attempts to obtain a travel document supports that construction. The court would not rewrite the regulation by adding a requirement concerning safe travel to the applicant’s home or another place abroad. Failure to apply for assisted voluntary return meant that the condition was not met.
4. Even on the claimant’s wider construction, the evidence was inadequate. His assertions that travel from Baghdad to Jalawala appeared frightening or dangerous were unparticularised. He identified no route, location, reason, lack of state protection or inability to relocate internally.
5. Regulation 3(2)(e) was also not satisfied. Earlier findings that the claimant was not at risk of persecution and would not face treatment contrary to article 3 were a proper starting point. The claimant supplied no evidence establishing a sufficiently severe risk of article 3 or article 2 violation.
6. The section 4 scheme provides limited support for hard cases. It is not surrogate asylum protection, and issues concerning asylum, human rights or a fresh claim should ordinarily be addressed through the relevant asylum and immigration procedures. More detailed supporting evidence might potentially enable reliance on regulation 3(2)(e) in a future case.

The judgment describes the challenged decisions as follows:

• Secretary of State for the Home Department: refused section 4 accommodation on 19 April 2007.
• Asylum Support Adjudicator: dismissed the claimant’s appeal on 3 May 2007.
• High Court (Administrative Court): dismissed the judicial review claim.