On 15 December 2022, the High Court sitting in Manchester heard a legal challenge to the 2022 rate of weekly asylum support payments made to asylum seekers under s95 Immigration and Asylum Act 1999. The challenge was brought by Jamie Burton KC and Michael Spencer of Doughty Street Chambers, instructed by Greater Manchester Law Centre.
On 16 December 2022, the court made an order declaring that, by failing to review and increase the level of support, the Home Secretary is and has been in breach of her statutory duties since at least 14 September 2022. The Judge had indicated to the Home Secretary’s representatives on 15 September that he would be making the declaration the following morning.
The court order of 16 December 2022 warned that, if the Home Secretary failed to take action in response to the court’s declaration of illegality by increasing the rate to ensure asylum seekers did not continue to be forced into destitution by her failure to act, the court would consider making a mandatory order. This would compel the Home Secretary to fulfil her duties.
The Home Secretary took no action
The order given by the Court today requires Home Secretary make an immediate increase in the asylum support rate by 10.1% on an interim basis. This will increase the weekly amount of asylum support from £40.85 to £45.
If the Home Secretary does not immediately implement the increase she will be continuing to act unlawfully, and the court has indicated it is an “unnecessary truism” that, in that event, she will be in contempt of court.
The Home Secretary has not disputed that her actions were unlawful. She gave no reason, excuse, or apology for the illegality.
The very unusual order made by the court reflects the exceptional circumstances of the case. The Home Secretary has for months simply ignored the advice of her own officials, who told her a number of times that she was breaking the law by failing to increase asylum support to the legal level required to avoid destitution. There are 60,000 asylum seekers present lawfully in the UK whom the Home Secretary has accepted she has a legal duty to support, as decided by the UK Parliament (no European or human rights arguments were raised in this case) but whose needs were ignored.
What happens next?
Even if the rate of support is increased to £45, this isn’t the end of the matter. As the Judge stated at paragraph 56, increasing asylum support to £45 is the “minimum lawful action necessary”.
The High Court also found that the decision of the Home Secretary to change the way she assessed the rate of asylum support in 2022 was unlawful because it lacked rational justification. The consequence of this is that even at £45, the Home Secretary appears to be leaving asylum seekers without enough money to avoid destitution.
The Home Secretary’s decision to change the established methodology of previous years for deciding the annual rate of asylum support, ignoring actual needs and applying the general CPI for September 2021 to a rate that was introduced in February 2022, led to a lower increase than if the previous methodology was used. The Court found she had no good reason for making this change, and it was therefore also unlawful.
Uprating by the September inflation rate again this year is therefore no cure for her previous failings.
Ordinarily, in response to such a judgment, we would expect an urgent review of all levels of asylum support to ensure that the Home Secretary is abiding by her legal duties as decided by the UK Parliament.
But given the Home Secretary’s attitude to illegality, as evidenced by her conduct in this case, it is unclear if she will act.
Kathleen Cosgrove of Greater Manchester Law Centre said:
The case has shown that the Home Secretary has, knowingly, and for months, broken the laws set by her own Parliament and left 60,000 adults and children, residing lawfully in this country and who she has accepted a duty to support, with less than they need to meet essential living needs. It should not be controversial that, in the absence of any denial, justification, or even apology, the UK court has a constitutional obligation to speak. The government cannot ignore and is not above its own laws.
CB, a young mother of young children, has battled for 9 months for the Home Secretary to listen to her evidence about the impossibility of meeting her families essential living needs. Throughout this time organisations working with asylum seekers have been calling for an urgent review of asylum support rates, and the Home Secretary’s own civil servants have been advising the minister in the strongest terms of the need for immediate action to avoid illegality. It shouldn’t take legal action, but without Judicial Review, what safeguards against a government that breaks its own laws?
We call again on the Home Secretary to act.
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Photo credit: Global Panorama, Cheryl Howard, Flickr, 2014.
