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

Support for child dependants of asylum seekers under the Immigration and Asylum Act 1999 and Council Directive 2003/9/EC is governed by a subsistence, rather than a welfare, standard. The child’s best interests must be a primary consideration, but that duty neither creates a higher minimum standard nor requires a particular formal sequence of decision-making.

Where the Secretary of State meets the Directive’s minimum standard and rationally assesses essential living needs, choices about individual items of support and public resources are for the Executive. The court may intervene only for failure to meet the minimum standard or on established public-law grounds.

The claimant, a Burundian asylum seeker and single parent of three children, received asylum support. The Secretary of State reduced the weekly rate payable for child dependants from £52.96 to £36.95 under the Asylum Support (Amendment No. 3) Regulations 2015.

Her judicial-review claim was dismissed by Flaux J in the Administrative Court: [2016] EWHC 2639 (Admin). She sought permission to appeal, contending that the assessment wrongly treated children’s support as a matter of subsistence rather than welfare and failed to treat their best interests as a primary consideration. The discrimination ground was abandoned. The central issue was whether the statutory and European framework required a welfare-based minimum for child dependants of asylum seekers.

1. Permission to appeal was refused. The proposed appeal had no real prospect of success, although the court directed that the judgment might be cited.

2. The language of Immigration and Asylum Act 1999, sections 95, 96 and 122, and Council Directive 2003/9/EC established a minimum, subsistence-based standard. It required provision for essential living needs sufficient for a dignified standard of living, adequate health and subsistence. It did not require parity with social-security benefits for persons lawfully resident in the United Kingdom.

3. The obligation to treat a child’s best interests as a primary consideration, found in Article 18 of the Directive and reflected by section 55 of the Borders, Citizenship and Immigration Act 2009, did not rewrite that statutory and European standard into a welfare-based one. It required real evaluation of children’s interests, not a prescribed single-stage or two-stage process or a requirement that those interests be mentioned first.

4. The Bentley review had addressed children’s different needs, section 55 and the relevant guidance. Its use of household economies of scale and its assessment of the wider package of accommodation, health care, education and other universal services disclosed no material error. The reduced rate was therefore set after proper consideration of children’s best interests.

5. The exclusions in regulation 9(3) of the Asylum Support Regulations 2000, including toys and recreational items, did not make the regime incompatible with the Directive or irrational. Although the exclusion of toys was regrettable, access through schools, libraries and other services meant that its exclusion from the weekly cash payment did not breach the minimum standard.

6. The court reaffirmed that, once the applicable minimum standard is met and essential needs are assessed rationally, the Secretary of State’s value judgments about support and resource allocation belong to the Executive. The court retains jurisdiction over threshold legality and rationality, but does not substitute its own judgment on desirable welfare provision.

• Court of Appeal (Civil Division): Permission to appeal was refused in [2017] EWCA Civ 433.
• High Court, Administrative Court: Flaux J dismissed the claimant’s judicial-review challenge to the reduction in asylum-support rates: [2016] EWHC 2639 (Admin).