Ghulam & Ors, R (on the application of) v Secretary of State for the Home Department & Anor

The statutory asylum-support scheme must, viewed as a whole, meet the objective minimum required by the Reception Directive. It must secure human dignity, subsistence and an adequate standard of health. Beyond that minimum, the Secretary of State determines what constitutes an essential living need, subject to ordinary public-law review.

The standard weekly rate may address the normal needs of the general cohort. Exceptional individual needs may be met separately under section 96(2) of the Immigration and Asylum Act 1999. Neither the best-interests duty nor equality law requires equivalence with mainstream benefits. A lawful rate-setting exercise requires sufficient inquiry, proper consideration of children’s welfare and conscientious attention to relevant protected characteristics.

Three conjoined judicial-review proceedings challenged decisions setting weekly cash support for asylum seekers under sections 95 and 96 of the Immigration and Asylum Act 1999. The first claimant challenged the adult rates fixed in 2014 and 2015. The second claimant challenged the 2015 reduction of the rate for dependent children to the adult rate of £36.95. The third claimants, a mother and her disabled daughter, sought permission to challenge that reduction.

The claims alleged inadequate inquiry, non-compliance with the Reception Directive, unlawful discrimination, failure to meet children’s recreational needs, breach of the child-welfare duty and breach of the public sector equality duty. The court also considered the role of exceptional support under section 96(2).

1. The first and second claims were dismissed, and the third claimants were refused permission. The support scheme, considered as a whole, met the Reception Directive’s objective minimum standard. Weekly cash payments had to be assessed together with furnished accommodation, paid utilities, healthcare, education and support for exceptional needs.

2. Whether that minimum was met was for the court to determine objectively. It required respect for human dignity, subsistence and an adequate standard of health. Once that floor was met, the identification of additional “essential living needs” was entrusted to the Secretary of State and could be challenged only on established public-law grounds. R (Refugee Action) v Secretary of State for the Home Department [2014] EWHC 1033 (Admin) was followed and applied.

3. The 2014 and 2015 reviews used a materially new methodology. The Secretary of State had investigated the current cost of the identified categories of need and had rational reasons for using official expenditure data for some categories and market research for others. Historical erosion of the rate did not invalidate a rate reached through a fresh and careful investigation. The adult decisions were neither irrational nor affected by inadequate inquiry.

4. A general weekly rate need not meet every individual need of every asylum seeker. It may address the ordinary needs of the able-bodied cohort, while properly evidenced exceptional needs are addressed under section 96(2) of the Immigration and Asylum Act 1999. Otherwise that subsection would have little purpose.

5. The children of asylum seekers and children supported through mainstream benefits were not in otherwise similar situations. Their families’ immigration status and statutory entitlements differed. In any event, the difference in treatment pursued legitimate resource and immigration-policy objectives and was not manifestly without reasonable foundation.

6. Section 55 of the Borders, Citizenship and Immigration Act 2009 required the best interests of children to be a primary consideration within the statutory framework for asylum support. It did not require equivalence with mainstream benefits or a higher minimum standard than the Reception Directive. The review had considered children’s nutritional, clothing, hygiene, travel, communication and developmental needs. The reduced rate was lawful.

7. The public sector equality duty required a realistic and proportionate, but conscientious, focus on the statutory criteria. The review lawfully treated additional disability-related needs as matters ordinarily addressed by local authorities or, where exceptional, under section 96(2). No further assessment concerning disability or the sex of lone parents was required on the evidence.

8. Section 96(2) did not require a published policy attempting to catalogue every exceptional case. The availability of support had been publicised through relevant organisations. The Secretary of State was entitled to require evidence of the exceptional need and its cost.

The judgment determined three conjoined first-instance judicial-review proceedings. Permission had previously been granted in Ghulam and K. YT and RG were considered on a rolled-up basis, and permission was refused.