Ghulam, R (On the Application Of) v Secretary of State for the Home Department

A decision fixing the level of asylum support is amenable to judicial review. Where the Secretary of State has reconsidered the level of support following an earlier judgment, the court may examine whether the new calculation is lawful and rational, including whether it secures the required dignified standard of living. A claimant’s ability to work must be assessed realistically by reference to the occupations legally available and the claimant’s qualifications and experience. Asylum seekers and persons eligible for income support are distinct categories, so different support levels do not, without more, establish unlawful discrimination.

The claimant, an asylum seeker from Egypt, challenged the Secretary of State’s recalculation of asylum support, fixed at approximately £36 per week. The challenge followed an earlier judgment in Refugee Action, R (on the application of) v The Secretary of State for the Home Department [2014] EWHC 1033, which had held that the setting of asylum support was amenable to judicial review.

Permission had initially been refused on paper by Blake J. The claimant subsequently relied on evidence that she was unqualified, had never worked, and could not realistically obtain work within the limited occupations permitted to her. The issues were whether the renewed challenge was arguable and whether the difference between asylum support and income support was unlawfully discriminatory.

1. Permission. Permission to apply for judicial review was granted on grounds 1 to 7 and 10 to 11. The challenge to the lawfulness and rationality of the recalculated asylum-support level was arguable.
2. Amenability to review. The decision fixing asylum support was amenable to judicial review. The fact that the Secretary of State had reconsidered the figure after Refugee Action, R (on the application of) v The Secretary of State for the Home Department [2014] EWHC 1033 did not prevent a further challenge where the same figure had effectively been reached and the adequacy of approximately £36 per week remained open to examination.
3. Realistic assessment of work. The claimant’s being able-bodied did not answer the issue. The permitted occupations were confined to the shortage occupation list and included highly skilled or specialised work. Her lack of qualifications and work experience meant that the evidence raised an arguable issue which had not been fairly addressed in the paper refusal.
4. Discrimination. Permission was refused on grounds 8 and 9. Asylum seekers awaiting determination and persons eligible for income support were an entirely discrete category. The difference between their support arrangements was therefore not, on the material advanced, an arguable breach of article 14 of the European Convention on Human Rights. The court expressly agreed with Blake J’s observations on that point.
5. Directions. The substantive claim was to be listed with one clear day for pre-reading, two days for hearing, and two days for preparation and delivery of judgment. Expedition was refused.

This was a first-instance judicial review permission decision. Permission had previously been refused on paper by Blake J on 19 November 2014. The present court reconsidered the matter in light of further evidence, granted permission on grounds 1–7 and 10–11, and refused it on grounds 8 and 9.