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

The power under section 4 of the Immigration and Asylum Act 1999 is accommodation-based. It permits the Secretary of State to provide or arrange accommodation and facilities linked to it, such as food and essential toiletries. It does not permit stand-alone vouchers or subsistence support where no accommodation is provided or arranged. An arrangement requires positive steps and continuing responsibility for the accommodation. Merely allowing a person to remain in existing accommodation while supplying vouchers is insufficient. The broader powers in section 96 do not enlarge section 4. Whether separate accommodation unjustifiably interferes with family life under Article 8 is fact-sensitive. Academic, case-specific grounds need not be resolved.

The first appellant, a failed asylum seeker, sought support under section 4 of the Immigration and Asylum Act 1999. He lived with his British partner and their child, but was offered accommodation elsewhere together with vouchers. He declined the offer because it would separate him from his family.

The Administrative Court dismissed the judicial review claim: [2010] EWHC 1002 (Admin). By the time of the appeal, the claim was academic because the first appellant had been granted discretionary leave. The central issue was whether section 4 authorised vouchers or other subsistence facilities without accommodation being provided or arranged. The appellants also raised issues concerning discretion, section 55 of the Borders, Citizenship and Immigration Act 2009, and Articles 8 and 14.

The appeal was dismissed. The court declined to determine the fact-specific and academic grounds concerning the respondent’s policy, section 55 and the Convention rights.

1. Accommodation-based power. Parliamentary authorisation for public expenditure was confined by section 4 of the Immigration and Asylum Act 1999. Reading section 4 as a whole, especially subsections 4(2), 4(5), 4(6), 4(10) and 4(11), the power to provide or arrange facilities for accommodation presupposed that accommodation was provided or arranged. The cross-reference in section 4(4) did not enlarge that power. The contrast with sections 95 and 96 reinforced the distinction between the narrower section 4 scheme and the broader support available to asylum seekers.
2. Facilities linked to accommodation. Facilities could extend beyond the physical accommodation and include food and essential toiletries, or comparable facilities in a hostel or hotel, where they enabled the accommodation to be lived in. They did not amount to a general power to meet all essential living needs. The Court of Appeal approved the reasoning in AW (Kenya) v SSHD [2006] EWHC 3147 (Admin).
3. Arranging accommodation. Arranging for accommodation required positive steps and involved continuing responsibility for the accommodation. A mere arrangement permitting the first appellant to remain in his partner’s existing accommodation, coupled with the supply of vouchers, would have provided vouchers alone and was outside section 4.
4. Unresolved grounds. The duty under section 55 to safeguard and promote the child’s welfare remained applicable when section 4 powers were exercised, as recognised in ZH (Tanzania) v SSHD [2011] UKSC 4. However, compliance was not determined. Any Article 8 assessment concerning separate accommodation was fact-sensitive and depended on matters including distance, practical family contact, duration, suitability and cost. Those issues were academic and were not decided.

Order: Appeal dismissed.

• Court of Appeal (Civil Division) — dismissed the appeal and upheld the accommodation-based construction of section 4.
• High Court of Justice, Queen’s Bench Division, Administrative Court — dismissed the judicial review claim in the decision appealed from: [2010] EWHC 1002 (Admin).
• First-tier Tribunal (Asylum Support) — allowed the first appellant’s appeal against the initial refusal of section 4 support.