R (SG) v Secretary of State for the Home Department

The court dismissed three conjoined judicial review claims challenging decisions of the Secretary of State setting weekly asylum support payments under sections 95–98 of the Immigration and Asylum Act 1999 and Regulations made thereunder (notably Regulation 10(2) of the Asylum Support Regulations 2000). The judgment applies and follows the legal analysis in R (Refugee Action) v SSHD [2014] EWHC 1033 (Admin) that (i) compliance with the Reception Directive 2003/9/EC is an objective question for the court and (ii) subject to meeting the Directive's minimum standard the Secretary of State has a governmental margin to judge what are "essential living needs" and that her judgment is only reviewable on public law grounds (for example irrationality/Wednesbury).

The court held that the Home Office had carried out an enquiry sufficient to make an informed decision in 2014 and 2015, and that its revised methodology (use of ONS data, targeted market research, item-by-item analysis and limited "sense checks") was lawful. The Secretary of State's decision to adopt a flat weekly rate (£36.62 for 2014; £36.95 from April 2015) and to reduce the dependent child rate was not irrational and met the Reception Directive minimum when considered with in-kind accommodation, free healthcare and free schooling.

The court rejected claims of unlawful discrimination between asylum-seeking children and children of nationals on Income Support, holding that the comparison was not appropriate and, in any event, the differential was justified and not "manifestly without reasonable foundation". Alleged breaches of the Public Sector Equality Duty (Equality Act 2010 s149), of the duty under s55 Borders, Citizenship and Immigration Act 2009 and challenges to the administration of exceptional payments under s96(2) were also rejected. The conjoined claims were dismissed.

This judgment concerns three conjoined first-instance judicial review claims attacking (a) the Secretary of State's August 2014 decision to maintain the weekly cash asylum support level for single adults at £36.62, (b) the April 2015 increase to £36.95 and (c) the July 2015 decision (implemented by the Asylum Support (Amendment) (No. 3) Regulations 2015) to reduce the weekly cash payment for child dependants from £52.96 to £36.95.

Parties and procedural posture:

• Claimants: three sets of asylum seekers (Ghulam; K; YT & RG).
• Defendant: Secretary of State for the Home Department; EHRC intervened in one claim.
• Permission to apply had been earlier given on a number of grounds; claims were heard in July 2016 before Flaux J.

Relief sought and principal issues:

• Quash the 2014 and 2015 decisions as irrational and unlawful for failing to assess properly "essential living needs" under sections 95–96 Immigration & Asylum Act 1999 and Regulation 10(2) of the 2000 Regulations;
• challenge non-compliance with the Reception Directive 2003/9/EC and the UN Convention on the Rights of the Child, including alleged failure to treat the child's best interests as a primary consideration under s55 Borders, Citizenship and Immigration Act 2009 and the statutory guidance Every Child Matters;
• allege unlawful discrimination (ECHR Art 14 and EU Charter Art 21) between child dependants of asylum seekers and children of nationals on Income Support; and breach of the Public Sector Equality Duty (s149 Equality Act 2010);
• challenge the administration and adequacy of exceptional payments under s96(2) for disabled dependants.

Court's reasoning (concise):

• Legal framework: the Reception Directive prescribes an objective minimum standard (dignified standard of living, adequate for health and subsistence). So long as that objective minimum is met the Secretary of State has a margin to identify what are "essential living needs"; that judgment is judicially reviewable only on established public law grounds.
• Methodology and evidence: the Home Office replaced its earlier approach after Refugee Action with a fresh, itemised methodology using ONS Living Costs & Food Survey data where appropriate, bespoke market-research for certain items, and sense-checks. The court held that the review process in 2014/2015 was a proper inquiry and not irrational even if other approaches could be devised; specific criticisms (selective use of ONS data; CPI versus item-specific inflation; historical erosion since 2007) did not show illegality.
• Children and section 55: the court held that s55/Every Child Matters does not require a more generous minimum than the Reception Directive or an equivalence with Income Support rates for nationals; the decision-maker must have "due regard" but that does not displace the statutory scheme. The Home Office had considered children’s needs, the universal services available (accommodation, free NHS care, education, libraries, concessions) and the effect of economies of scale in multi-person households; the reduction in child rates therefore did not breach s55 or the PSED.
• Discrimination: comparison with children on Income Support was rejected as inappropriate; the differential was justified and not "manifestly without reasonable foundation" in light of differing legal entitlements and policy objectives (limited state resources; discouraging economic migration).
• S96(2) exceptional payments: the court rejected the argument that the Secretary of State must publish a comprehensive pre-commitment policy for every exceptional need; exceptional applications must be evidenced and determined case-by-case and the Home Office processes were not shown to be inadequate in the circumstances.

Outcome: all three conjoined claims were dismissed. The judgment emphasises the limited scope of judicial review in policy-laden determinations where EU and domestic law set an objective minimum but leave the executive discretion in defining "essential" needs beyond that minimum.

The claims are dismissed. Flaux J held that (i) the Reception Directive sets an objective minimum which the court must enforce, but subject to that minimum the Secretary of State may determine what constitutes "essential living needs" and that judgment is only reviewable on public law grounds; (ii) the Home Office's 2014 and 2015 evidence-based methodology was sufficient and not irrational; (iii) the reduced child rate met the Directive's minimum when combined with in-kind support (accommodation, healthcare, education) and did not breach s55 or the PSED; and (iv) discrimination and other challenges failed. Accordingly the conjoined judicial review claims were dismissed.