NS, R (on the application of) v Social Entitlement Chamber of the First-tier tribunal

Regulation 3(2)(e) of the Immigration and Asylum (Provision of Accommodation to Failed Asylum Seekers) Regulations 2005 does not impose an automatic requirement that permission to proceed with judicial review must first have been granted. A tribunal errs in law if it treats the absence of permission as conclusively preventing the condition from being satisfied. The correct application of the provision is fact-sensitive. Where the court has not been asked to decide the wider construction of the regulation, it should avoid an abstract or general ruling and allow the Secretary of State to reconsider the individual case.

The claimant, a failed asylum seeker, received accommodation under section 4 of the Immigration and Asylum Act 1999 while the Secretary of State considered further representations. After the Secretary of State decided that the representations did not constitute a fresh claim, he decided to cease accommodation. The First-tier Tribunal dismissed the claimant’s appeal.

The tribunal rejected the submission that a pending judicial review application automatically satisfied regulation 3(2)(e), but also held that the absence of permission to proceed itself prevented that condition from being met. The claimant sought judicial review of the tribunal’s decision. The Secretary of State conceded that this latter approach was an error of law.

1. The claim succeeded to the limited extent that the First-tier Tribunal’s decision of 2 June 2009 was quashed.
2. Regulation 3(2)(e) does not require permission to proceed with judicial review as an essential precondition whenever further representations have been held not to amount to a fresh claim. The tribunal judge therefore erred by treating the absence of permission as dispositive.
3. The court declined to determine the wider interpretation of regulation 3(2)(e). The provision may arise in several factual situations, including before judicial review proceedings are issued and while an application remains undetermined. The court considered it preferable for the Secretary of State first to address the correct approach on the facts of the individual case.
4. The matter was not remitted to the First-tier Tribunal. The Secretary of State undertook to reconsider the claimant’s continuing entitlement to section 4 accommodation, including under regulation 3(2)(e), and to continue accommodation until 14 days after notifying the claimant of his decision.
5. The court referred to R (AW) v Croydon, R (A,D and Y) v Hackney [2005] EWHC 2950 (Admim) and R (Binomugisha v LB Southwark) [2006] EWHC 2254 (Admin) as illustrating the variety of factual circumstances in which the regulation may arise. The defendant was ordered to pay the claimant’s costs up to 22 September 2009, with no order as to costs thereafter.

The judgment describes a judicial review of a decision of the First-tier Tribunal (Social Entitlement Chamber) dated 2 June 2009. The High Court quashed that decision for error of law and directed reconsideration by the Secretary of State rather than remittal to the tribunal.