R (Refuge Action) v The Secretary of State for the Home Department

This judicial review challenged the Home Secretary’s decision (announced 6 June 2013) to freeze weekly cash asylum support rates for 2013/2014 under sections 95–98 of the Immigration and Asylum Act 1999 and Regulations 10(2) and 10A of the Asylum Support Regulations 2000. The court accepted that the Secretary of State may set cash rates for the "able‑bodied" destitute as a general rule, and may leave exceptional or particular needs to be addressed on an individual basis under section 96(2). However the decision was unlawful because the Secretary of State (i) failed to identify and take account of particular essential living needs (including household cleaning materials, nappies and baby supplies, non‑prescription medication, and the requirement to afford a minimum level of social, cultural and religious participation), (ii) relied on erroneous or misleading factual material (notably an incorrect characterisation of a 11.5% rise since 2007 and a misapplied ONS comparator), and (iii) did not undertake an adequate inquiry to justify a freeze when rates had eroded in real terms. The decision also misstated the legal position as to 16 and 17 year olds. The administrative decision was quashed and remitted for reconsideration.

The claimant, Refugee Action (a charity), sought judicial review of the Home Secretary’s decision to maintain asylum cash support at the 2011/12/2013 levels for the financial year 2013/2014. The payments in issue derive from the Secretary of State’s statutory duty under section 95 of the Immigration and Asylum Act 1999 and are set out in Regulations 10(2) and 10A of the Asylum Support Regulations 2000. The claimant alleged (i) incompatibility with EU law and irrationality, (ii) breach of the public sector equality duty under section 149 of the Equality Act 2010, and (iii) breach of the duty under section 55 of the Borders, Citizenship and Immigration Act 2009.

The court framed the legal task by separating two questions: (1) what are the "essential living needs" the Secretary of State must meet under section 95/96, and (2) what amounts are sufficient to meet those needs. The judge emphasised that EU law (the Reception Directive 2003/9/EC and the Charter) sets a minimum objective standard (dignity, health, subsistence and particular regard to vulnerable persons) which must be reflected in domestic implementation. Within that floor, the Secretary of State has a value judgment about what is "essential" for the general cohort and may leave exceptional cases to bespoke provision under s.96(2). The court upheld the principle that the ordinary scheme permits the Secretary of State to target cash rates at the able‑bodied destitute while taking account of services reasonably expected to be available from other state bodies (for example local authorities and the NHS).

On the facts the court held the decision unlawful for multiple reasons: the Department had relied on a misleading factual premise (the asserted 11.5% increase since 2007), had failed to assess erosion in real terms, had misapplied ONS comparator data, and had not carried out a sufficiently robust inquiry before deciding to freeze rates. The Secretary of State had also not taken into account specific categories that ought to have been treated as essential living needs (washing/cleaning materials, nappies and baby products, non‑prescription medicines and the need for minimal social/cultural/religious participation) and had failed to consider whether other items (travel costs to see lawyers, telephone costs to pursue claims, certain writing materials) could be essential. The decision also misdirected itself about education obligations and the position of 16–17 year olds. The Policy Equality Statement had not been seen by the Minister before decision but the court did not determine the PSED point definitively given its other findings. Remedy: permission granted, decision quashed and remitted for reconsideration in light of the judgment.

The application for judicial review succeeds. The decision to freeze cash asylum support rates for 2013/2014 is quashed and remitted for reconsideration. The court held that although the Secretary of State may lawfully set general cash rates aimed at the able‑bodied destitute and rely on support reasonably expected from other public bodies, the decision under challenge was irrational and procedurally flawed: it relied on erroneous facts (the purported 11.5% rise), failed to assess real‑terms erosion, misapplied comparator data, omitted to consider a number of specific essential living needs and misdirected itself on the legal position of 16 and 17 year olds. Remedial reconsideration was ordered so the Secretary of State may address the identified legally material matters.