Refugee Action, R (On the Application Of) v The Secretary of State for the Home Department

Support for destitute asylum seekers under the Immigration and Asylum Act 1999 must meet the objective minimum required by the Reception Directive. It must secure health, subsistence and a dignified standard of living, including normal needs within each support category. Exceptional individual needs may instead be addressed under section 96(2), and needs reasonably met by other public bodies need not be duplicated.

When fixing general cash rates, the Secretary of State must identify all essential needs and make a sufficiently informed, rational assessment of the sums required. The decision to freeze rates was unlawful because material needs were omitted and the evidence and comparators were materially flawed. The rates decision was quashed for reconsideration.

The claimant charity brought a generic judicial review of the Secretary of State’s decision to freeze, for 2013/2014, the weekly cash support paid to destitute asylum seekers and their dependant children. Accommodation, utilities and certain services were provided separately.

The challenge alleged incompatibility with EU reception standards, irrational and inadequately informed decision-making, breach of the public sector equality duty, and breach of the duty to safeguard and promote children’s welfare. The central issues were the content of essential living needs, the persons whose needs had to be reflected in general cash rates, and whether the review provided a rational basis for retaining the existing rates.

1. Claim succeeded. Permission was granted. The decision to freeze the 2013/2014 cash-support rates was quashed and must be reconsidered.

2. The minimum content of the duty under sections 95 and 96 of the Immigration and Asylum Act 1999 is objectively informed by the Reception Directive. Support must provide a standard adequate for health and subsistence, respect human dignity, and meet vulnerable persons’ special needs where those needs are not otherwise met by another public body. Above that minimum, identifying an essential need involves a value judgment for the Secretary of State, subject to ordinary public-law review.

3. General rates under section 96(1)(b) need cover needs normally to be anticipated for the relevant category of asylum seeker. They need not cover truly exceptional individual needs, which may be met under section 96(2). The Secretary of State may also take account of other support reasonably expected from public bodies. Disabled children’s essential living needs are not transferred to local authorities under section 17 of the Children Act 1989, but the evidence did not establish a normal class of unmet non-accommodation needs requiring inclusion in general rates.

4. The Secretary of State failed to take account of essential household goods, non-prescription medication, the additional needs of new mothers, babies and very young children, and the minimum opportunity to maintain interpersonal relationships and participate in social, cultural and religious life. She also had to consider whether unfunded travel to legal appointments, necessary telephone communications, and writing materials were essential needs.

5. The review was not capable of supporting a rational freeze. It relied on an erroneous claimed 11.5% increase in support since 2007, failed to address real-terms erosion, and materially misunderstood comparisons with income support and Office for National Statistics expenditure data. The inquiry was insufficient under the principle in Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1975] AC 1014.

6. Article 14.2(b) of the Reception Directive requires practical access to communication with relatives, legal advisers and others identified there; it does not itself require the State to fund indeterminate communication costs. The Secretary of State also misdirected herself concerning 16 and 17 year olds: their proximity to adulthood and supposed non-compulsory education could not rationally justify lower support.

not stated in the judgment.