Kiana & Anor, R (on the application of) v Secretary of State for the Home Department

Section 4 of the Immigration and Asylum Act 1999 confers an accommodation-based power. It does not authorise subsistence support, such as vouchers, without the Secretary of State also providing or arranging accommodation. An arrangement requires positive steps to organise accommodation and a continuing degree of responsibility for it.

The statutory scheme may lawfully provide less advantageous support than mainstream benefits. A section 4 arrangement does not necessarily interfere with Article 8, and any obligation to provide welfare support arises only in special circumstances where the impact on private or family life is sufficiently severe. Mixed households are not necessarily in an analogous situation to households in which all members qualify for section 4 support.

The claimants challenged the Secretary of State’s decision to offer the first claimant, a failed asylum seeker, separate accommodation and vouchers under section 4 of the Immigration and Asylum Act 1999. He lived with his British partner and their daughter, but the household’s resources were insufficient to meet their essential living needs.

The claim concerned whether section 4 permitted subsistence-only support or informal arrangements preserving the existing family accommodation. It also raised alleged fettering of discretion and breaches of Articles 8 and 14 of the Convention. Although the first claimant was later granted discretionary leave, the court proceeded because the issue was of general importance.

1. Scope of section 4. The application passed the permission threshold but was dismissed on its merits. Section 4(2) of the Immigration and Asylum Act 1999 is principally a power to provide accommodation. Unlike section 95, it contains no express power to provide essential living needs on a stand-alone basis. The 2007 Regulations reinforce that conclusion because their additional facilities are available only to a person already being provided with section 4 accommodation.
2. The phrase “provide or arrange for the provision of” requires the Secretary of State to take positive steps to organise accommodation and retain a degree of responsibility for it. Merely confirming that existing accommodation is available, or consenting to the claimant living there, is insufficient. Contractual arrangements with an existing landlord may be possible, but the Secretary of State is not required to accept informal arrangements lacking appropriate safeguards.
3. The Secretary of State had not unlawfully fettered the discretion. The evidence showed that the possibility of contracting with the existing landlord had been considered, the claimants’ circumstances had been taken into account, and the duty under section 55 of the Borders, Citizenship and Immigration Act 2009 had been considered.
4. The offer did not breach Article 8. It was an offer of welfare support, not a direct separation or deportation measure. On the evidence, the likely geographical separation was limited and temporary, family life would not have been effectively ruptured, and the offer would not have had a sufficiently severe impact requiring further support under Article 8.
5. Alternatively, the statutory limitations pursued legitimate immigration-control aims and struck a fair balance between individual and community interests. The resource and incentive consequences of a wider support system were relevant.
6. The Article 14 claims failed. A mixed household containing a British citizen entitled to work and claim mainstream benefits was materially different from a household in which both partners qualified for section 4 support. The difference in treatment was therefore justified, and the indirect discrimination claim failed for the same proportionality reasons.
7. Permission to appeal was refused by the judge, with the Court of Appeal left to determine whether permission should be granted. Time for applying was extended until 14 days after approval of the expedited transcript. Publicly funded costs were to be subject to detailed assessment.

The judgment states that the First-tier Tribunal (Asylum Support) allowed the first claimant’s appeal against the refusal of section 4 support on 4 November 2009. The Administrative Court dismissed the judicial review claim. Permission to appeal was refused at first instance, subject to the Court of Appeal determining any application for permission.