MK & Anor v Secretary of State for the Home Department & Anor

A policy requiring consideration of further asylum submissions before considering an associated application for accommodation under section 4 of the Immigration and Asylum Act 1999 was unlawful. A blanket 15-working-day delay created a significant risk that applicants would suffer treatment contrary to Article 3 of the Convention. The Secretary of State may use sensible screening procedures to identify abusive, manifestly unfounded or repetitive submissions, but must protect deserving applicants while their claims are considered. The court’s task is to review legality, not prescribe the administrative system to be adopted.

The claimants were failed asylum seekers who made further submissions and applied for support under section 4 of the Immigration and Asylum Act 1999. The Secretary of State operated a policy requiring the further submissions to be considered first. A decision on section 4 support was generally deferred for up to 15 working days, unless the further submissions had already been decided. Both claimants experienced delay while destitute or at risk of homelessness.

The central issue was whether that policy was lawful, having regard to Article 3 of the Convention and the Reception Conditions Directive.

1. The policy was unlawful. The blanket instruction requiring case owners to defer consideration of section 4 support for up to 15 working days created a significant risk that a significant number of applicants would suffer an Article 3 breach. It also denied applicants an independent review of their support entitlement while the further submissions were being considered.
2. The Secretary of State was entitled to devise screening procedures. Pending a decision on whether further representations amounted to a fresh claim, support was not automatically required in every case. It could be refused where the representations were manifestly unfounded, merely repetitive or disclosed no asylum claim. However, the system had to identify deserving cases sufficiently promptly.
3. The Reception Conditions Directive applied when further submissions were made. It permitted a reasonable period for evaluating applications, but could not be implemented by withholding material reception conditions from all applicants during a standardised delay.
4. The Article 3 assessment remained fact-sensitive. Destitution alone was insufficient, but imminent street homelessness caused by State action would ordinarily meet the threshold, particularly where there were no alternative sources of support. The relevant policy had to be assessed by reference to the significant risk created in practice, not merely its intended operation.
5. The court was concerned only with legality. It was not required to prescribe the replacement policy. The parties were invited to address what relief should be granted and whether the individual claims should be resolved in light of the judgment.