MG, R (on the application of) v The Secretary of State for the Home Department

When deciding where to provide asylum support accommodation, the Secretary of State must treat the child’s best interests as a primary consideration and must identify how the proposed decision may affect the child. That duty includes consideration of the effect of geographical separation on a child’s relationship with a non-resident parent. Practical difficulties in providing accommodation nearer the child may justify separation under Article 8, but only if reasonable arrangements exist for regular face-to-face contact. Where accommodation cannot reasonably be relocated, the Secretary of State must properly consider exceptional travel support under section 96(2) of the Immigration and Asylum Act 1999.

The claimant, a failed asylum seeker supported under section 95 of the Immigration and Asylum Act 1999, was accommodated near Portsmouth. His young son lived with the claimant’s former partner in Canterbury, about 130 miles away. The claimant sought accommodation nearer Canterbury or Brighton and, alternatively, financial assistance with travel costs.

The Secretary of State relied on accommodation pressures and concluded that Portsmouth was the closest available placement. The claimant challenged the accommodation decision and refusal of additional travel expenses, alleging breaches of section 55 of the Borders, Citizenship and Immigration Act 2009 and Article 8 of the European Convention on Human Rights. The central issue was whether the decision-making had properly considered the effect on the father-son relationship and the child’s welfare.

1. Section 55 and the child’s welfare. The duty under section 55 of the Borders, Citizenship and Immigration Act 2009 required the Secretary of State to identify the child’s best interests and treat them as a primary consideration. The duty required consideration of promoting, as well as safeguarding, the child’s welfare. It was not discharged by referring generally to the child living safely with his mother.
2. The relevant impact was the practical impediment to maintaining the child’s relationship with his father. The Secretary of State had instead focused on the non-existent risk that the child might be separated from his mother. That was a material failure to consider the statutory duty.
3. Article 8. Contact between a natural parent and child could constitute family life even where the parents had never lived together. The geographical separation interfered with that family life. The practical difficulties of providing accommodation nearer Canterbury were capable of outweighing the effect of separation, but only if arrangements existed for regular contact. Telephone or Skype contact was inadequate for a child of K’s age.
4. Travel support. The words exceptional circumstances in section 96(2) of the Immigration and Asylum Act 1999 did not confine support to an extremely narrow class of cases. The Secretary of State’s policy contemplated relocation or exceptional travel support where an individual could not meet necessary travel costs from the standard allowance. The refusal failed to engage with the evidence concerning the cost of travel and the claimant’s lack of alternative funds.
5. The decision was quashed insofar as it rejected the application for reasonable travel costs between Portsmouth and Canterbury. The court indicated that support should allow at least fortnightly journeys, subject to further submissions on the reasonable amount and the claim for just satisfaction.

First-instance judicial review in the Administrative Court. No earlier decision is stated in the judgment.