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

Support owed under sections 95 and 96 of the Immigration and Asylum Act 1999 must meet an objective minimum standard derived from the applicable reception conditions. The Secretary of State may reduce the prescribed cash allowance only to reflect essential living needs actually provided in kind. The duty applies from the determination that section 95 support is owed, regardless of whether the person remains in initial accommodation or is expected to move shortly to dispersal accommodation. A failure to provide for an identified essential need, including non-prescription medication, is unlawful. A voluntary back-payment scheme may nevertheless adopt a rational longstop date if its purpose is administratively workable and linked to the circumstances that caused the prolonged accommodation.

The claimant, an asylum seeker from Nigeria, and her young daughter were granted support under section 95 of the Immigration and Asylum Act 1999 but remained in full-board hotel accommodation for an extended period. The Secretary of State’s October 2020 decision provided £8 per person per week and backdated payments only from 27 March 2020. The claimant challenged the omission of non-prescription medication from the backdated payments and the 27 March longstop date.

The parties accepted the relevance of JM v Secretary of State for the Home Department [2021] EWHC 2514 (Admin). The remaining issues were whether healthcare was an essential need not met in kind and whether the limitation of the voluntary back-payment scheme was lawful.

1. The claim succeeded in part. The October 2020 decision was unlawful insofar as it omitted any sum for the essential healthcare need identified in the 2018 and 2020 Reviews. The 27 March 2020 longstop date was lawful.
2. Sections 95 and 96(1)(b) of the Immigration and Asylum Act 1999 contain a hard-edged minimum standard derived from the Reception Directive. That standard is objective and is not left to the Secretary of State’s subjective judgment. Any wider assessment of support is subject to ordinary public law review after compliance with the minimum standard.
3. Under regulation 10(5) of the Asylum Support Regulations 2000, the prescribed amount may be reduced only to reflect essential living needs actually met by the accommodation. It cannot be reduced for a need which remains unmet.
4. The Secretary of State had identified healthcare, including essential generic non-prescription medication, as an essential need. The evidence relied upon, consisting principally of complaints that some asylum seekers had sought medication through GPs, could not rationally establish that the need was being met. Free prescriptions and the NHS Minor Ailments Scheme did not alter that conclusion because those matters had already been considered in the Reviews.
5. The section 95 duty arises when entitlement is determined. Initial accommodation does not involve lesser essential living needs than dispersal accommodation. Clothing, travel, communication and non-prescription medication remain essential needs, subject only to the extent to which they are supplied in kind.
6. The Secretary of State was entitled to regard laundry provision as met by the accommodation providers, assessed by reference to generic provision. Individual difficulties could have been addressed through exceptional support under section 96(2).
7. The voluntary back-payment scheme was rationally limited to the period beginning on 27 March 2020. That date reflected the pause in cessations, the resulting lack of movement into dispersal accommodation, the scheme’s administrative purpose and the time limit for judicial review claims. The Secretary of State was not required to extend the scheme to earlier periods.
8. Declarations were appropriate in respect of the unlawful omission of communication payments, following JM, and the omission of non-prescription medication payments. The Secretary of State was left to address the unlawfulness.