Secretary of State for the Home Department, R (on the application of) v Asylum Support Adjudicator & Ors

MR JUSTICE HOLMAN: I am indebted to each of Miss Greaney, on behalf of the Secretary of State, and Mrs Outhwaite, on behalf of the Asylum Support Adjudicator, for their clear and helpful arguments today.

This is an application by the Secretary of State for the Home Department for judicial review of three decisions by asylum support adjudicators. In each case, the asylum support adjudicator was considering an appeal to him or her by an appellant who was a "failed asylum seeker", in relation to whom officials of the National Asylum Support Service had decided that he/she was ineligible for support under the relevant statute and regulations. In each case, the asylum support adjudicator allowed the appeal and substituted for the earlier decision on behalf of the Secretary of State, a decision that the respective appellant is entitled to the provision of support.

It is clear that the Secretary of State considers that, in the approach of asylum support adjudicators to cases of this kind, there is or may be a pervasive error, and accordingly this application is brought, in part, as a test case.

It is convenient if I first set out the relevant framework of legislation and regulations. Next, I will venture some observations on the proper approach to the construction and application of the Act and regulations. I will then consider the facts of each of the three cases and the reasons of the respective asylum support adjudicator, identifying (anticipating the overall outcome of this case) the ways in which I feel they fell into error.

The underlying statute is the Immigration and Asylum Act 1999. It is convenient first to refer to section 95(1), which empowers the Secretary of State to provide, or arrange for the provision of, support for asylum seekers or dependants of asylum seekers "who appear to the Secretary of State to be destitute or likely to become destitute".

That section accordingly makes provision in relation to people who are current "asylum seekers" or their dependants. The essential test for the provision of support is that it appears to the Secretary of State that the person or his dependant is "destitute or likely to become destitute".

Provision in relation to people whose claim for asylum has already been determined or adjudicated upon and rejected (ie "failed asylum seekers") is contained within section 4(2) of the Act. That provides as follows:

Pausing there, sub-section (2) is permissive. It provides that the Secretary of State "may provide ...". It identifies the category of people to whom he may provide it, but does not otherwise give any indication as to the test or approach to be applied in deciding whether actually to provide accommodation.

The relevant regulations are The Immigration and Asylum (Provision of Accommodation to Failed Asylum-Seekers) Regulations 2005 (SI 2005/930). These were made on 24 March 2005 and came into force on 31 March 2005. Although the principal Act was enacted in 1999, I have been told that these are the first such regulations to be made specifying criteria for the purpose of section 4(5).

The regulations are made in exercise of powers conferred upon the Secretary of State by section 166(3) of the Act, and also by section 4(5) itself. The only regulation to which it is necessary to refer for the purposes of this case is regulation 3. That provides as follows:

Pausing there, section 4 itself of the Act does not make reference to the state of being destitute, but clearly the effect of sub-paragraph (a) of the regulation is to import in relation to failed asylum seekers the criterion that applies by section 95 of the Act in the case of current asylum seekers, that the person in question appears to the Secretary of State to be destitute. But whereas no additional criterion appears within section 95, these regulations, made pursuant to section 4, add in relation to failed asylum seekers the further criterion that one or more of the conditions set out in paragraph 2 of regulation 3 are also satisfied in relation to him. In other words, as one would indeed expect, when contrasting the position of a failed asylum seeker with a current asylum seeker, the regulations are more restrictive.

Paragraph 2 provides as follows:

My attention has rightly been drawn also to a document headed "Policy Bulletin 71, section 4 of the Immigration and Asylum Act 1999", which was issued on 31 March 2005 by or on behalf of the Secretary of State. The first paragraph of the policy bulletin defines its purpose and scope as being:

As those words make plain, this is a "guidance" document and cannot be a substitute for the underlying Act and regulations themselves. But since guidance is designed to help a range of people on both sides of the divide (that is, both NASS staff and also applicants' representatives), it is clearly a document of some importance.

Paragraph 5.3 of the document states:

As it is relevant in particular to one of the three cases under consideration by me, namely that of Ahmad, I emphasise in that passage from the guidance document the words, "a letter from the applicant's doctor stating in clear terms that the person is unfit to travel ...".

It is clear that, in deciding whether a person is eligible for the provision of accommodation under the Act and regulations, a number of stages must be considered, whether by an officer of the National Asylum Support Service or the Secretary of State or an asylum support adjudicator. First, it is necessary to decide whether the person in question falls within section 4 sub-section (2) at all, namely whether he was, but is no longer, an asylum seeker, and his claim for asylum was rejected. Assuming that an applicant is correctly identified as falling in that category, ie being a failed asylum seeker, then the second question is whether he is "destitute" as required by regulation 3(1)(a). Initially, the relevant question is whether or not he appears to the Secretary of State to be destitute. But I assume -- although it does not arise for consideration in this case -- that even if it does not appear to the Secretary of State that the applicant is destitute, it is open to an asylum support adjudicator on appeal to consider the rationality of the decision of the Secretary of State if that is put in issue by the appeal.

The third question that has to be decided is whether one or more of the conditions set out in paragraph (2) of regulation 3 are satisfied in relation to the applicant. It is clear from the words of sub-paragraph (b) of regulation 3(1) that more than one of the conditions may indeed apply to a particular applicant, and indeed one can see at a glance that that may be so. In the present case, however, it is asserted that the only condition in point is the condition in paragraph (b) of regulation 3(2).

Before focusing on that particular condition, it is relevant to note that in the condition in paragraph (a) there is an express reference to taking all "reasonable" steps. So the draftsman of the conditions had the possibility of adding the qualification "reasonable" firmly in mind at the point of drafting it. If one moves next to the condition in paragraph (c), one sees there a reference to no "viable" route of return being available. So the draftsman clearly had in mind the qualification of the concept of viability. Within the condition in paragraph (b), however, no such qualification appears.

It seems to me that paragraph (b) contains within it two limbs, the second of which is itself sub-divided into two alternatives. The first limb of the condition is that the applicant "is unable to leave the United Kingdom". The second limb of the condition is the words, "by reason of a physical impediment to travel or for some other medical reason", and the limb is sub-divided by reference to the alternatives of "a physical impediment to travel", or "some other medical reason".

It seems to me very important when applying this condition that whoever is applying it, whether it be an officer of the NASS or the Secretary of State or an asylum support adjudicator, carefully and deliberately takes a two-stage approach. First, he or she should ask the question and consider whether the applicant "is unable to leave the United Kingdom". It is only if the answer to that is that the person is unable to leave, that the decision-maker then needs to move to the second stage or step of asking and considering whether the inability is "by reason of a physical impediment to travel or for some other medical reason". Anticipating the outcome of this case, I consider that some of the error to which the asylum support adjudicators came may have arisen from some elision of the quite distinct limbs and stages within condition (b).

The next matter is the meaning of the words, "he is unable to leave the United Kingdom". These are very simple words, in ordinary daily usage as part of the English language. It seems to me that it is dangerous and unwise, and indeed unnecessary, to attempt any form of paraphrasing, save to say that both counsel have submitted, and I agree, that the word "unable" where it appears in the condition has exactly the same meaning as the words "not able".

There are some words within the English language that employ the prefix "un" which have tended to acquire some positive meaning distinct from merely the negative of the primary word. Thus, the Chambers dictionary, when dealing with the prefix "un", comments at the outset that the primary meaning of "un" is "not", but adds:

My attention has been drawn to two very disparate authorities in which judicial consideration has been given to the word "unable" where it appears in legislation. The first authority is the case of Leeder v The Mayor, etc, of the Town of Ballarat East, reported at [1908 VLR 214], a decision in 1908 of the Supreme Court of Victoria in Australia. There they were considering the requirement of giving notice within a certain period of time to the municipality as a precondition of a person recovering damages from the municipality as a result of the state of the highway. Notice had to be given within 21 days unless the plaintiff could "show some sufficient reason why the person injured or the owner of such property was unable to give such notice". There is much interesting discussion in the three judgments as to what shade of meaning should be attached to the word "unable", although Cussen J focused more on the words "sufficient reason" within the statutory provision, and said:

It seems to me that that statutory provision is far removed in time, place and context from anything I have to consider today, and, in any event, that, as Cussen J said, any interpretation of the word "unable" took its colour from the context of the need to show "sufficient reason". I thus do not consider that anything said in the case of Leeder throws any light at all on that which I have to consider today.

The other authority is the decision of a Sheriff Principal in the Sheriff Court of Lothian and Borders in Moore v Electoral Registration Officer for Borders, decided in 1979 and reported in the Sheriff Court Reports in the 1980 Scots Law Times at page 39. What was under consideration there was the construction of the words "unable or likely to be unable to go in person to the polling station", so as to qualify somebody to apply for a postal vote under the Representation of the People Act 1949. This led to the question of just how difficult it had to be for a voter to be able to attend the polling station before he could be characterised as being "unable" to go in person.

The Sheriff Principal made plain at page 40 that he construed the words with regard to the legislative purpose of the statute, saying:

As I have said, I decline to paraphrase it. It is a very ordinary English word. I make only the following comments. There is a difference in shade of meaning between use of the word "unable" and use of the word "impossible". The question that has to be asked in these cases is whether, using the word in its ordinary sense, it can be said that the person "is unable" to leave the United Kingdom. To substitute an absolute test of impossibility in the literal sense of that word would be to put it too high.

On the other hand, there is, in my view, no justification or warrant at all in these cases to imply into condition (b) the word "reasonable" or some test of "reasonableness". As I have already observed, the draftsman employed the word "reasonable" in the immediately preceding condition (a), and employed the word "viable" in the following condition (c). It would have been perfectly possible to draft condition (b) in a way that imported the concept of reasonableness, but that was not done.

Apart from those observations, I deliberately say no more about the proper construction, width or application of condition (b). I turn now to consideration of the facts of the three cases in question.

In each of them, the applicant concerned is or was suffering from tuberculosis. At times during the course of argument today there has been reference to the question of possible contagion. The Secretary of State has acknowledged in argument today that if, on the facts of a particular case, there is a strong risk of contagion of serious illness to other passengers, in particular on an aeroplane, then in his view that might indeed amount to a "medical reason" making the contagious person for the time being "unable to leave the United Kingdom". That seems to me to be no more than commonsense. Indeed, one would imagine that few airlines or carriers are willing knowingly to carry on their plane or otherwise transport a person so contagious as to put other passengers at serious risk of infection with a serious disease. But apart from a passing reference in one of the three cases, it simply does not seem to me that the issue of contagion was or is in point in any of the three cases that I have to consider. Rather, what they really turned on was a view that it was in the best interests of the applicant to remain longer in the United Kingdom in order to continue to receive treatment for tuberculosis, and, whilst here, to be appropriately accommodated, for it is not in the best interests of a sufferer from tuberculosis to be living on the street.

The first case is that of Mohammed Osman. He is an Iranian national. He made a claim to asylum which was refused, and his rights of appeal were exhausted on 21 September 2004. It is the practice of the Secretary of State to provide a short period of adjustment or grace before withdrawing support, which may previously have been provided to a current asylum seeker under the provisions of section 95 of the 1999 Act, to which I have referred. In the case of Mr Osman, that support was terminated on 18 October 2004, since he was no longer an asylum seeker. However, no removal directions were or have yet been given.

On 24 July 2005, Mr Osman applied to the Secretary of State for support pursuant to section 4 of the 1999 Act and the criteria in the regulations, on the grounds that he was destitute and was unable to leave the United Kingdom by reason of a physical impediment to travel, or for some other medical reason. Within his application form he stated that:

By the time his application was considered, there were two letters from treating doctors. First, a letter from Dr A Moody, specialist registrar at St James's University Hospital, Leeds, dated 21 July 2005, stating:

A further letter dated 5 August 2005 from Dr J Watson, consultant chest physician at the specialist clinic, stated:

The Secretary of State refused the application for accommodation and support on the grounds that he was not satisfied that Mr Osman satisfied one or more of the conditions set out in regulation 3(2) of the regulations. Within his decision letter, he stated:

Mr Osman then appealed to the Asylum Support Adjudicator. He did not request an oral hearing and his case was considered on paper by an asylum support adjudicator, Ms Sally Verity Smith, whose decision and reasons statement is dated 21 September 2005. Within her reasons statement, Ms Smith, the adjudicator, first set out the essential facts of the case and quoted from the medical reports to which I have referred. She then set out the provisions of sections 4(2) and 4(5) of the 1999 Act and the relevant regulations, all of which I have already quoted. She continued at paragraph 10 of her reasons as follows:

Within that passage, the beginning of which, as will be seen, the same adjudicator repeated in identical terms in the next case to which I will refer, namely that of Yillah, she first gave consideration to the meaning of the words "for some other medical reason" where they appear in condition (b). She clearly and rightly considered that those words must be given some meaning and force separate from the words "by reason of a physical impediment to travel", for otherwise they would be redundant. Where, however, in my view she falls into error is in saying that the words "for some other medical reason" must be given a meaning apart from "unfitness to travel", otherwise such phrase is redundant. The contrast necessary to give a meaning and purpose to "for some other medical reason" is not with the words "unfitness to travel", which do not appear anywhere at all in the regulations, but rather with the words "by reason of a physical impediment to travel". It is true that in the guidance in Policy Bulletin 71, to which I have referred, the guidance draws attention to the need for a letter from a doctor "stating in clear terms that a person is unfit to travel". But that concept of unfitness to travel is not of itself the test within the regulations. It seems to me that, within paragraph 10 as a whole, Ms Smith fell into error by not taking the staged approach that I have indicated of first asking herself whether, giving appropriate meaning and force to the words "unable to leave", the applicant is somebody who "is unable to leave the United Kingdom"; and only if she answered that question affirmatively, going on to consider whether the reason why he is unable to leave falls within one or other of the subdivisions of the second limb of the condition. Instead, she jumped to the conclusion that:

However, there is actually nothing at all in either of the letters to say that Mr Osman is unable to leave the United Kingdom. Rather, the thrust of each of the letters is that, for his own benefit and treating the tuberculosis, it would be important for him to continue with regular visits to the clinic and with treatment for at least the next six months.

That, however, is simply not the test in the condition. The question is not whether it is, from the point of view of his own medical treatment, "undesirable" or "inadvisable" to leave the United Kingdom, but whether he is unable to leave the United Kingdom. There was and is simply no evidence at all that he is unable to do so, and I am in no doubt that the adjudicator, by adopting a wrong approach to the application of the condition in regulation 3(2)(b), allowed herself to fall into error. I mention that, in the case of Mr Osman, there is simply no reference at all in the reasons of Ms Smith to any risk of contagion from Mr Osman. But even if she had contagion in mind, the only reference in the medical evidence to contagion is the high probability of Mr Osman transmitting the disease to other homeless people (for example in hostels) without a home. There is simply nothing at all in the medical evidence to suggest that the risk of contagion is such that he is unable to travel on a single journey departing from the United Kingdom.

The next case is that of Ms Zainab Yillah. She is a national of Sierra Leone. She applied for asylum. Her claim was refused on 21 November 2001 and her rights of appeal were finally exhausted on 6 June 2005. As a result, again allowing a period of adjustment or grace, the Secretary of State terminated her support pursuant to section 95 of the 1999 Act on 11 August 2005. In anticipation of that, she applied on 3 August 2005 for support and accommodation pursuant to section 4, again relying on the ground that she is unable to leave the United Kingdom by reason of a physical impediment to travel or for some other medical reason.

Within her application she stated that she had been diagnosed with tuberculosis and still has more hospital appointments. She continued:

That, of course, was purely her own lay view. The only medical evidence at all in this case of which I am aware, that was before the Secretary of State or later the adjudicator, was a "discharge advice letter" from a hospital in Coventry. It states that there is a diagnosis of "tuberculosis - pulmonary", and indicates the history and some of the symptoms on admission and that various samples had been taken for testing, and states that there is a plan for a bronchoscopy as an outpatient. It seems that, together with her discharge advice letter, Ms Yillah was given some pro-forma sheets of paper descriptive of tuberculosis and its treatment and effect. There is within that document, which I am prepared to treat as part of the medical evidence that was before the adjudicator, a passage under the heading: "Can I infect other people?":

The document continues to say that treatment for TB with tablets must be taken every day for six to nine months:

The document goes on to talk about side-effects from treatment, when a patient might return to work, how long before he might have to attend hospital, any risks associated with sexual relations and other matters. There is simply nothing at all in the document that was given to Ms Yillah saying that she poses a risk to others by travelling in proximity to them.

Again, in her case the Secretary of State refused her application for support under section 4, stating in his decision letter:

Ms Yillah appealed to the Asylum Support Adjudicator, and again her case came before Ms Sally Verity Smith, who considered it on paper and gave her decision and reasons on 7 October 2005. Again, she set out the facts as I have myself summarised them. She said at paragraph 5 of her reasons:

Ms Smith then set out, as she had in the case of Mr Osman, the statutory framework and the relevant regulations, and at paragraph 10 continued as follows:

Pausing there, it seems to me that at that point the actual reasons and reasoning of Ms Smith ends. She continued in paragraph 10, however, to say:

It seems to me that, far from forming part of her own reasoning, the references in that additional part of paragraph 10 to contagion are merely comments or observations by Ms Smith of something that she feels the Secretary of State may wish to consider. It may well be, as Mrs Outhwaite has suggested, that Ms Smith had contagion in her own mind as part of her reasons, but the fact of the matter is that she said in terms that she was satisfied that the condition of the regulation was satisfied by way of the evidence in the letter dated 20 July 2005, and apart from the brief references to contagion in the accompanying pro forma documents from which I have quoted, there was and is simply nothing in the evidence before Ms Smith to suggest that there is any serious risk of contagion if Ms Yillah is placed on a flight.

It seems to me that, in paragraph 10 of her reasoning in this case, Ms Smith fell into error for exactly the same reasons that I have already identified and given in relation to the Osman case, since she repeated her essential reasoning in identical words. I will accordingly not repeat my own reasons, but I conclude that the decision of the adjudicator is wrong because it is based on an incorrect construction and application of the regulation.

I turn to the third case, namely that of Alhaj Adam Ahmad. Mr Ahmad is a Sudanese national. He made a claim for asylum which was refused, and his rights of appeal were exhausted shortly after 26 April 2005. He had been granted support under section 95 during the course of his asylum appeal proceedings, but this was discontinued following the exhaustion of his appeal rights as he was no longer an asylum seeker. On or around 10 August 2005 he applied for support pursuant to section 4 of the Act and the regulations.

In his application form he stated that he had been admitted to hospital and diagnosed with tuberculosis and hepatitis B, and required a course of treatment for between six months and one year. He stated that he was ready to be discharged from hospital, but had no means to support himself in accommodation. In support of his application, he produced initially a letter from Dr Chapman, consultant physician of the Royal Hallamshire Hospital in Sheffield, dated 15 July 2005. In that letter Dr Chapman said:

However, the Secretary of State determined that Mr Ahmad did not fall within the condition, and by a decision letter dated 19 September 2005 he said:

Mr Ahmad then appealed to the Asylum Support Adjudicator, and in support of his appeal adduced a further letter from Dr Chapman dated 23 September 2004. That repeats that Mr Ahmad is being treated for pulmonary tuberculosis, and that there had been a previous course of treatment in 2004. The letter continues:

Pausing there, there is in that letter and in this case, unlike the cases of Osman and Yillah, a positive statement by a doctor that: "I feel that he is not fit to travel from the United Kingdom on medical grounds". It will be recalled that within the guidance of the Policy document it is suggested that the NASS caseworker shall be satisfied that a person meets the relevant condition if the following evidence is available: "... a letter from the applicant's doctor stating in clear terms that the person is unfit to travel ...".

Nevertheless, this matter fell and falls in the end to be determined in accordance with the regulations. This case was considered by a different asylum support adjudicator, namely Mr David Saunders, whose reasons and decision are dated 6 October 2005. Again, in his reasons he set out the relevant provisions of the Act and the regulations, and then summarised the facts and quoted from the letter from Dr Chapman. Mr Saunders continued at paragraph 12:

That paragraph seems, in my view, to be absolutely correct and unobjectionable. The adjudicator then proceeded to consider the first stage, namely whether or not the appellant is destitute, and determined that he is. He continued at paragraph 14 by saying:

It seems to me, with respect to Mr Saunders, that there are clear errors within that paragraph. First, Mr Saunders failed to adopt the appropriate and necessary staged approach to considering condition (b). He failed clearly to have asked himself the question: is the appellant unable to leave the United Kingdom? He should first have considered that, and only if he answered it in the affirmative should he then have continued to consider whether it was because of one of the reasons referred to in the condition. Instead, he somewhat conflated the matter by simply saying that he is satisfied "that the appellant is unfit to travel from the United Kingdom". The condition itself does not use the words, "unfit to travel". It seems to me that, by adopting that paraphrase, Mr Saunders allowed himself to fall further into error.

Again, in this case, although the medical evidence from Dr Chapman clearly indicates that, on medical grounds, Mr Ahmad is not fit to travel, it seems to me that, on a fair reading of Dr Chapman's letters as a whole, what makes him "not fit to travel" is the need and desirability from the point of view of his health and treatment to maintain regular treatment and monitoring for at least six months or longer. That seems to me clearly to emerge from his saying in the first letter that "I feel it is absolutely vital for him to remain in the United Kingdom on medical grounds", and that "deportation during his treatment or the follow up period would be detrimental to his health". But there is nothing at all in the letters to suggest that, on any given day, Mr Ahmad would not in fact be fit to travel or, as the regulation requires, be unable to leave the United Kingdom. It might indeed be tested in this way. If Mr Ahmad desired to travel abroad for the purposes of a brief holiday in between two appointments for his treatment, there is nothing at all in the letters or evidence of Dr Chapman to suggest that he would be unable to do so.

It seems to me accordingly that, in the case of Ahmad, also by falling into error in his approach to the construction and application of the condition, the adjudicator, Mr Saunders, reached a conclusion which was simply wrong.

For those reasons this application for judicial review will be allowed in relation to all three cases. The respective adjudications will be quashed.

I hope there is nothing else you wish me to say or do, is there? I am not on costs, I am on substantive outcome.

MISS GREANEY: Nothing, my Lord.

MR JUSTICE HOLMAN: Are there any other matters or applications? I do not see that costs can really arise because the Treasury Solicitor is on both sides and, as was pointed out, ultimately the Secretary of State is on both sides in a way, although arguably there are different budgets involved.

MISS GREANEY: There is no application for costs, my Lord.

MR JUSTICE HOLMAN: So is there anything else at all? I think no.

MRS OUTHWAITE: No, my Lord, nothing further.

MR JUSTICE HOLMAN: Thank you very much indeed.