In 2015, following a review of the rates for payments of asylum support, the Home Secretary decided to reduce the amount of asylum support payable with respect to the dependent children of asylum seekers to the same rate as applied to adults (a one third reduction). This was principally because the Secretary of State considered that economies of scale in multi-person households meant that any extra living costs for children could still be met. Flaux J dismissed a judicial review challenge to that decision (and an earlier decision not to increase the rate for adults) in R (SG, JK and YT) v Secretary of State for the Home Department  EWHC 2639 (Admin).
In R (JK) v Secretary of State for the Home Department  EWCA Civ 433 the Court of Appeal (Hallett, Gross, Irwin LJJ) has now considered an application to appeal against Flaux J’s judgment following a “rolled up” hearing. Gross LJ (with whom Hallett and Irwin LJJ agreed) ultimately refused the claimant permission to appeal, although giving permission for the judgment to be cited.
Before the Court of Appeal the claimant’s argument boiled down to the submission that the Secretary of State had carried out a flawed assessment by failing to treat the best interests of children as a primary consideration, and had wrongly focussed on subsistence rather the welfare of children.
Gross LJ held that the wording of s.95 of the Immigration and Asylum Act 1999 (“IAA 199”) (i.e. “essential living needs”) and of the relevant EU Directive 2003/9/EC (i.e. “minimum standards”) pointed to a subsistence level of support (at [58-60]). Reading the Directive in the light of the EU Charter of Fundamental Rights (esp. Arts.18, 21 and 24) did not alter that interpretation. Nor did consideration of the UN Convention on the Rights of the Child or the General Comments on the Convention (at [62-65]). Nor, again, did s.55 of the Borders, Citizenship and Immigration Act 2009 or the statutory guidance made under it, Every Child Matters (at ). Proper consideration of the “best interests” of children neither required nor permitted a re-writing of the IAA 199 or the Directive (at ).
As to the decision taken by the Secretary of State, Gross LJ held that it had been reasonable to conclude, in the light of economies of scale, that a higher rate was being paid in respect of children than was necessary to meet the minimum required under the Directive or essential living needs under the IAA 1999 and there had been appropriate consideration of the best interests of the child (at [69-71]). In particular, there was no requirement that the Secretary of State consider the issues in a particular order or (as the claimant submitted) adopt a “two stage” approach (i.e. starting by assessing what was needed for a child’s welfare and then going on to determine the level of provision) (at [72-75]). Gross LJ also rejected the claimant’s submission that the exclusion (by regulations made under the IAA 1999) of toys and recreational items from what could count as essential living needs was irrational or otherwise ultra vires, given that the test was one of subsistence and the availability of additional assistance to asylum seekers apart from the weekly support payments (at [76-81]). Finally, Gross LJ held (rejecting a new argument advanced by the claimant) that the reduction in the rate did not even arguably interfere with the claimant’s Art.8 ECHR rights (at ).
Clive Sheldon QC and James Cornwell represented the Secretary of State, instructed by the Government Legal Department.