HA & Ors v Secretary of State for the Home Department

Regulation 10A of the Asylum Support Regulations 2000 requires the specified additional support for pregnant women and young children to be paid in cash. It is not ordinarily discharged by providing food or other items in kind. The general rule may be displaced only in exceptional cases under section 96(2) of the Immigration and Asylum Act 1999. Regulation 10(5) does not reduce regulation 10A payments.

Applications for section 95 support must be decided promptly. In most cases a decision should be made within 10 days, although the circumstances of each case govern. Where delay is substantial, section 98 requires the Secretary of State to consider temporary support meeting essential living needs. A policy is not unlawful merely because it is unpublished, but it is unlawful if inconsistent with the statutory support scheme.

Five conjoined judicial review claims concerned the Secretary of State’s duties to provide accommodation and support to asylum claimants under the Immigration and Asylum Act 1999 and the Asylum Support Regulations 2000.

HA and SXK challenged the failure to pay regulation 10A support while they and their children lived in full-board hotel accommodation. K challenged delay in deciding her section 95 application and the failure to provide section 98 temporary support. NY challenged delay in deciding and implementing a favourable section 95 decision, and the failure to provide temporary support. K and NY also claimed breaches of article 3. AM’s substantive claim was compromised, leaving the basis of assessment of her costs.

1. HA and SXK. Regulation 10 and section 96 form part of a single statutory scheme. The reference to cash support “as a general rule” creates a prima facie requirement to pay the specified amount. That requirement may be displaced under section 96(2) in exceptional circumstances, or where regulation 10(5) applies. Regulation 10(5) requires a reduction where accommodation meets essential living needs otherwise covered by regulation 10(2), but does not confer a general power to provide support in kind.
2. Regulation 10A must be read in the same way. It requires payment of the additional amounts for pregnant women and children under three. Regulation 10(5) does not apply to those additional payments. HA and SXK therefore succeeded on their primary case. Alternatively, the generic evidence of hotel menus, snacks and contractual obligations did not establish that the additional regulation 10A needs had been met in kind.
3. K and NY. Although neither section 95 nor the 2000 Regulations specifies a decision period, section 95 applications must be determined promptly. The ordinary expectation is a decision within a short period after first contact with Migrant Help; absent particular cause, most decisions should be made within 10 days. Contractual arrangements and administrative pressure cannot alter the statutory obligation.
4. Section 98 provides temporary support pending determination of a section 95 application. Its scope is not confined to hotel accommodation. Where a section 95 decision is significantly delayed, the Secretary of State must consider payment to meet essential living needs and, on the facts, ought to have made such provision. NY also suffered a further breach when support was not provided promptly after the favourable section 95 decision.
5. The unpublished “Practice” and “Approach” were unlawful because they were inconsistent with the statutory scheme, not simply because they were unpublished. A section 95 award may comprise accommodation, essential-living-needs support, or both.
6. The article 3 claims failed. Destitution meeting section 95(3) does not itself establish article 3 ill-treatment. The court must assess the facts against the higher article 3 threshold, while recognising the prospective duty to act where there is an imminent prospect of breach.
7. AM succeeded on costs. The Secretary of State was ordered to pay her costs, agreed or assessed on the indemnity basis.