Summary
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.
Factual background
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.
Held
- 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.
- 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.
- 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.
- 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.
- 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.
The court’s approach to earlier authorities
Available to signed-in members.
Key cases cited
13 authorities cited.
- R (on the application of ZO (Somalia) and others) v Secretary of State for the Home Department [2010] UKSC 36
- R (on the application of M) (FC) (Respondent) v Slough Borough Council (Appellants) [2008] UKHL 52
- Regina v. Secretary of State for the Home Department (Appellant)ex parte Adam (FC) (Respondent) Regina v. Secretary of State for the Home Department (Appellant) ex parte Limbuela (FC) (Respondent)Regina v. Secretary of State for the Home Department (Appellant) ex parte Tesema (FC) (Respondent)(Conjoined Appeals) (HTML version) [2005] UKHL 66
- Regina v. Ashworth Hospital Authority (now Mersey Care National Health Service Trust) (Appellants) ex parte Munjaz (FC) (Respondent) [2005] UKHL 58
- Westminster City Council v National Asylum Support Service [2002] UKHL 38
- Birmingham City Council v Clue [2010] EWCA Civ 460
- AW & Ors, R (on the application of) v London Borough of Croydon & Ors [2007] EWCA Civ 266
- Suppiah & Ors, R (on the application of) v Secretary of State for the Home Department [2011] EWHC 2 (Admin)
- Matembera, R (on the application of) v Secretary of State for the Home Department [2007] EWHC 2334 (Admin)
- AW, R (on the application of) v London Borough of Croydon [2005] EWHC 2950 (Admin)
- Nigatu, R (on the application of) v Secretary of State for the Home Department [2004] EWHC 1806 (Admin)
- Salih & Anor v Secretary Of State For Home Department [2003] EWHC 2273 (Admin)
- R v Hammersmith and Fulham London Borough Council, Ex p M (1997) 30 HLR 10
Sign in to see how the court treated each authority. A free account is enough.
Cases citing this case
4 later cases · 1 positive · 1 neutral · 2 caution
Most senior citing decisions:
- DMA, R, (on the application of) v The Secretary of State for the Home Department (Rev 1) [2020] EWHC 3416 (Admin) considered
- Refugee Action, R (On the Application Of) v The Secretary of State for the Home Department [2014] EWHC 1033 (Admin) distinguished
- Tabbakh, R (On the Application Of) v The Staffordshire and West Midlands Probation Trust & Anor [2013] EWHC 2492 (Admin) explained
- Z, R (on the application of) v Secretary of State for the Home Department [2013] EWHC 498 (Admin)
Sign in for the full treatment table. A free account is enough.