Rasul, R (on the application of) v Asylum Support Adjudicator & Ors

MR JUSTICE WILKIE: This application for judicial review raises two questions. The first is as to the nature and extent of the jurisdiction of the Asylum Support Adjudicator on hearing appeals in respect of section 4 of the Immigration and Asylum Act 1999 as amended. The second question, which arises if I dismiss the claim in respect of the Adjudicator's jurisdiction, is a judicial review of a decision of the Secretary of State dated 10th October 2005 to cease to provide support pursuant to section 4 to the claimant.

Section 4 of the Immigration and Asylum Act 1999, as amended by the Nationality, Immigration and Asylum Act 2002 and the Asylum and Immigration (Treatment of Claimants et cetera) Act 2004 provides, amongst other things, as follows:

The Secretary of State has made regulations pursuant to section 4(5), namely the Immigration and Asylum (Provision of Accommodation to Failed Asylum Seekers) Regulations 2005. Regulation 3(1) states:

Section 103 of the 1999 Act provides for a right of appeal to the Asylum Support Adjudicator. The right of appeal was extended to section 4 cases by section 10(2) of the 2004 Act which amended section 103 by the addition of subsection (2A) in the following terms:

The claimant is a 28 year-old Iraqi man. He is a Kurd and comes from Kirkuk, a mixed Kurdish Arab city to the north of Iraq. Kirkuk is in Al-Ta'amim governate. Kirkuk never fell within the "Kurdish Autonomous Area", nor does Kirkuk fall within the area under the authority of the Kurdish Regional Government which comprises the three northern governates of Dahuk, Arbil and Suleymaniyah.

On 12th March 2002 the claimant claimed asylum. He was refused on 9th April 2002. He appealed to an Adjudicator who dismissed his appeal on 15th November 2002, and on 20th December the Immigration Appeal Tribunal refused permission to appeal from the Adjudicator's decision.

On 29th January 2003 the claimant applied to the Secretary of State for section 4 support, provision of which was authorised on 10th February 2003.

On 12th September 2005 the Secretary of State wrote to the claimant in, amongst others, the following terms:

The claimant did not reply to this letter, and on 10th October 2005 the Secretary of State wrote further to him in, amongst others, the following terms:

The letter informed the claimant of his right of appeal to the ASA and he exercised it. The appeal was dismissed on 24th October 2005. There was a hearing attended by the claimant who has represented. The relevant paragraphs of this decision are as follows:

The claimant's primary submission is that on appeal the ASA is obliged to determine for him- or herself whether "there is currently no viable route of return available" or, in the alternative, that the ASA must allow the appeal if the Secretary of State's opinion was unlawful on Wednesbury grounds.

In essence the argument is that, as the right of appeal expressed in section 103(2A) is untrammelled, and the powers of the ASA include under section 103(3)(B) the ability for the ASA to "substitute his decision for the decision appealed against", it is for the ASA to reach its own conclusions of fact and law and it is not bound by the opinion held by the Secretary of State, even though the particular condition in question is one which is expressly to be determined by what is the decision of the Secretary of State.

The claimant points out that the regulations specifying the criteria to be used in determining whether or not to exercise the power under section 4 include a number of different forms of expression. The first criterion, regulation 3(1)(a), is that the applicant "appears" to the Secretary of State to be destitute. The second criterion is not expressed in subjective terms but is that "one or more of the conditions is satisfied".

The conditions, one of more of which has to be satisfied, are themselves couched in variable terms. Four of them are couched in terms which require the establishment of a certain state of affairs. The fifth, the one in question, is partly couched in terms of the existence of a state of affairs; namely, that the applicant is unable to leave the United Kingdom. That state of affairs is, however, circumscribed in that the reason for that state of affairs has to be that "in the opinion of the Secretary of State there is currently no viable route of return available". The claimant says that none of these different choices of modes of expression can sensibly affect a decision as to the powers of the appellate body because the right of appeal is untrammelled and section 103(3) provides that the ASA stands in the shoes of the SSHD by giving it the power, amongst others, to "substitute his decision for the decision appealed against".

The claimant points out that if the Secretary of State is correct, then it would be possible by regulation to couch all the criteria and the conditions in terms which are expressed in terms of the Secretary of State's opinion. In those circumstances it is said the right of appeal provided for by section 103 would be rendered nugatory. Accordingly, the claimant says that the ASA was wrong to hold that it could not go behind the opinion of the Secretary of State. Either it is for the ASA to determine that question at large or, at least, it may investigate the lawfulness of the holding of that opinion.

Further, he asserts that, insofar as, upon a true construction, the ASA was required to decline to go behind the Secretary of State's opinion, then the regulations are to that extent ultra vires in purporting to permit the Secretary of State to take away, by regulation, that which Parliament has given by statute, namely an untrammelled right of appeal against a decision to withdraw section 4 accommodation.

The Adjudicator is neutral on this issue. However, to assist the court she seeks to draw attention to a number of points and has assisted by answering certain questions which have arisen in argument.

She has confirmed, as has the Secretary of State, that adjudicators when dealing with the regulation 3(1)(a) criterion -- namely, whether it appears to the Secretary of State the applicant is destitute -- do conduct a full re-hearing into the facts and do not regard themselves as prevented from so doing because the regulation only requires that "it appears to the Secretary of State that the applicant was destitute". A distinction is drawn between the approach to dealing with the subjective expression of "it appears" in regulation 3(1)(a) and "the Secretary of State is of the opinion" in 3(2)(c). The distinction appears to be that the latter expression denotes a formal expression of view on a matter of policy, not on a matter of individual circumstances, concerning matters outside the jurisdiction, whereas the former denotes a particular person's view on an individual case on matters which for the most part will be within the jurisdiction concerned with the granting or withholding of support or accommodation with which the ASA is fully equipped to deal. She also confirms that the ASA deals with questions concerning the other conditions as matters essentially within the jurisdiction.

She has also indicated that on the question in issue there is a difference of approach amongst adjudicators. Some take the same view as the Adjudicator in the present case. Some are prepared to consider whether the opinion held by the Secretary of State is lawfully held on judicial review principles.

She also makes a number of practical points. First, the primary focus of the Adjudicator's supervisory jurisdiction is the provision of asylum support within the jurisdiction rather than the provision of an alternative forum for asylum or extra territorial human rights claims to be heard under a different guise.

Second, she draws attention to the very tight timescale provided for by the relevant rules of procedure within which ASAs are required to deal with appeals. The longest timescale provided for by those rules from day 1, the decision to withdraw support to the date upon which the adjudicator must send reasons for a decision after a hearing, is 16 days. She makes certain other points concerning the training, the expertise and the resources available to the ASA system. I do not regard these as in any way indicative of the proper statutory construction, as they reflect arrangements made by the Secretary of State on a certain assumption as to the correct construction of the statutory provisions, which is the issue I have to decide.

The Secretary of State supports the decision of the Adjudicator. He argues that the task of the ASA in considering an appeal is to adjudicate on the decision not to provide or to continue to provide accommodation under section 4. The ASA has to consider whether the decision of the Secretary of State has complied with the requirements imposed by the eligibility provisions contained in the regulations. This may in certain circumstances require the ASA to determine whether the Secretary of State was right in deciding that certain criteria or conditions were not met. For example, under 3(2)(a) the question of the reasonableness of the steps taken by the individual would be for the ASA to determine; so would a consideration under 3(2)(b), whether an individual was unable to travel by reason of a physical impediment or some other medical reason. It may also be that similar questions will arise in respect of conditions 3(2)(d) and (e). Where, however, the regulations explicitly state that a condition will or will not arise by reference to the opinion of the Secretary of State, then that is a matter which must be taken as read by the ASA, even though that may be determinative of the particular appeal in question. Parliament deliberately required that question to be a matter for the opinion of the Secretary of State. The appropriate forum for review of such a decision is the High Court in judicial review proceedings.

Furthermore, he says that an opinion held for the purpose of regulation 3(2)(c) is a policy decision which is taken in respect of a whole country and is not a decision related to a particular individual or the journey which may be required to be taken for that person to return to his home town or village. Such a decision is different from the other decisions upon which the ASA has to determine and upon which it is required to determine on the facts of a particular case. Thus, it is argued, there is every good reason why the Adjudicator should have taken the view that he did and that for him to have done so does not undermine the statutory scheme for appeals.

In my judgment the Secretary of State's contention is correct. The jurisdiction of the ASA in this respect is to consider the decision not to provide or to continue to provide accommodation under section 4. The powers given to the ASA upon determining such an appeal include substitution of the ASA's decision for the decision appealed against. That is to say, the ASA can decide that the Secretary of State should provide or continue to provide accommodation under section 4. In deciding whether to uphold the appeal and make such a decision, the ASA has to apply regulations made under section 4(5) which specify the criteria to be used in determining whether or not accommodation should be or should continue to be provided. As will appear later, I am satisfied that, as a matter of construction, condition 3(2)(c) is couched in terms of the Secretary of State's opinion on a matter of policy applied to a country generally. In those circumstances, in my judgment, the ASA was correct in considering itself limited to considering whether that opinion was truly held. In the present case, the Secretary of State no longer held the opinion which gave rise to condition 3(2)(c). That did not of itself prevent the requirement to provide accommodation arising because there were other conditions which, if they were satisfied, would have given rise to the granting of accommodation.

In my judgment the ASA and the Secretary of State are correct to identify a distinction between regulation 3(2)(c) and the subjective terms of criterion 3(1)(a). In the latter case, just as where the condition is not couched in subjective terms, on appeal the ASA is required to consider the matter afresh and, if it disagrees with the Secretary of State, it is entitled to substitute its view for that of the Secretary of State and make the decision provided for by section 103(3)(b). That is a matter of individual fact upon which the ASA is well equipped to make a decision. In the former case, whilst the Adjudicator is in a position to decide as a matter of fact whether or not the opinion is held, that body is unfitted to make a judgment on matters of policy concerning a country at large and is properly precluded by the terms of the regulation from so doing.

In my judgment the availability of judicial review in which the correctness in public law terms of the holding by the Secretary of State of a particular opinion may be tested precludes any requirement that the ASA must, in order to make an appeal effective, require the ASA to have the power to second-guess the holding of the opinion of the Secretary of State as a matter of substance, let alone subject it to scrutiny on public law grounds. Furthermore, I do not accept the contention that the regulations are ultra vires insofar as they so provide.

Accordingly, insofar as this is application for judicial review is aimed at the decision of the ASA of 24th October, then it fails and must be dismissed.

I now turn to the question of the lawfulness of the decision of the Secretary of State on 10th October 2005 to discontinue section 4 support with effect from 26th October 2005.

At the heart of the disagreement in this case is a fundamental misapprehension on the part of the claimant as to the nature of the decision-taking process as evidenced by the letters to him respectively of 12th September and 10th October 2005. The nature of this misapprehension has only become apparent at the hearing. It is right to say that the true nature of the Secretary of State's case is apparent through a close reading of the somewhat opaque language of the summary grounds of resistance. The initial witness statement of Simon Bentley does not reveal the true nature of the decision-taking process which was in play and it is only upon a close reading of the first 11 paragraphs of the witness statement of Jonathan King, served on 14th February 2006, that the evidential basis of the Secretary of State's case becomes apparent. Be that as it may, I am satisfied that the claim is misconceived, as it does reflect a fundamental misunderstanding of the decision-taking process provided for by the 2005 Regulations.

The Secretary of State's case is that regulation 3(1) of the 2005 Regulations provides for two criteria to be used in determining whether section 4 accommodation support may be provided to a person falling within section 4(2) or (3) of the Act. Those two criteria are, respectively, (a) that the applicant appears to the Secretary of State to be destitute and (b) that one or most of the conditions set out in paragraph (2) are satisfied in relation to him.

Focusing on criterion (b) and paragraph (2), there are five conditions, any one of which, if satisfied, means that the criterion in 3(1)(b) is satisfied. Of those conditions, four of them require the applicant to demonstrate something. The fifth, which is 3(2)(c), does not require the applicant to establish anything, but applies automatically by reason of the opinion held by the Secretary of State as a matter of policy in connection with a country or, highly exceptionally, a part of a country. The Secretary of State in oral submission has described this as a "tick box" condition. In other words, if the Secretary of State, as a matter of policy, holds the opinion which is described in this condition, then, without more, criterion 3(1) b) is satisfied and the applicant need not demonstrate anything else.

The opinion which, if held by the Secretary of State, automatically satisfies the condition, is that there is currently no viable route of return available. This is not an opinion which is held on an individual basis. Rather this is an opinion held as a matter of policy in respect of a country. I accept the argument that this is the true construction of 3(2)(c). The opinion to be held is not one which in any way is particular to the applicant. It is the effect upon the individual applicant of the holding of that general opinion which causes the condition to be satisfied.

In the case of Iraq, Mr King, in the first 11 paragraphs of his witness statement, identifies how, historically, the Secretary of State has regarded the question of a viable route of return to a country as a matter of policy to be determined on a country-wide basis. This much is apparent from, for example, the communication of 17th January 2005 with the National Asylum Support Forum. That letter recorded that henceforth ministers accepted that the only route currently in operation, namely via Highway 10 from Amman to Baghdad, was sufficiently risky that it may not be reasonable to demand that an applicant sign up for that journey as a prerequisite for support. It therefore followed that, as a policy, the Secretary of State was content that as long as the individual was prepared to comply with voluntary return when a safer route became available, he would, on the face of it, be eligible for section 4 relief.

When the regulations came into force guidance was issued on 31st March 2005 which, in part 5.3, indicated how caseworkers were to deal with section 4 cases, once satisfied that a person applying for support under section 4 was destitute. In connection with condition 3(2)(c) the guidance said as follows:

It is apparent that, applying this approach, the Secretary of State was, for a time, of that opinion. It is also clear that that opinion ceased and Mr King has described in paragraphs 8, 9 and 10 the basis upon which and the process by which this change of policy emerged. This change of policy was notified to the National Asylum Support Forum by letter dated 29th July 2005. The impact of that change of policy is described as follows in that letter:

It is clear that it was pursuant to this policy change that the letter of 12th September 2005 was sent to the applicant. That letter was not intended to be a statement of a decision taken on an individual basis that condition 3(2)(c) no longer was satisfied. Rather it was a statement based on policy that the condition no longer was satisfied. This meant that the question of the continuing availability of section 4 support would depend upon the applicant satisfying one or more of the other four conditions. It was the applicant's failure to respond to this letter as requested which gave rise to the decision on 10th October 2005 that, as none of the conditions provided for by regulation 3(1)(b) was satisfied, he therefore became ineligible for section 4 accommodation support as he did not satisfy one of the two criteria.

It is not the applicant's case that, as a matter of policy on a country-wide basis, the Secretary of State was not entitled to cease to be of the opinion that there was currently no viable route of return available. Indeed, in the face of the evidence, that could not possibly be argued. Thus, on the basis that regulation 3(2)(c) is a regulation which operates on a policy level applied to a whole country, the Secretary of State's decision that he no longer held the opinion required by condition 3(2)(c) is unassailable.

The claimant's case is focused on another question; namely whether, he being a person from Kirkuk and wishing to return to Kirkuk, there is a route which is viable in the sense, (as the claimant would have it), of being not arguably unsafe. This was the issue which was raised by the claimant's representative at the ASA hearing and which gave rise to the comments in paragraph 8 and in the first sentence of paragraph 9 of that decision. In my judgment, however, this is an argument which is appropriate, if at all, where the question arises whether the applicant has satisfied condition 3(2)(a). That question never arose in this case because the applicant failed to reply to the letter of 12th September. Accordingly, insofar as the decision which is impugned is that of 10th October 2005, there can be no question of its having been unlawful. The NASS was perfectly entitled on the basis of the lack of any response to the letter of 12th September to be of the view that none of the conditions provided for by regulation 3(2) arose, so that no question arose of continuing section 4 accommodation support.

That means that this application for judicial review must fail. Thus there is in place a valid decision of 10th October 2005 discontinuing section 4 accommodation support.

There remains, however, an unresolved issue of substance. The claimant says that there is no viable return route for him to Kirkuk because the road from Erbil to Kirkuk, particularly that stretch which falls outside the area of the KRG, is arguably unsafe. The Secretary of State says that as a matter of fact this is incorrect and in any event he does not accept that this is a relevant question for consideration, even under regulation 3(2)(a). Certain it is that it is not an issue which can be engaged under regulation 3(2)(c). It may arise were the applicant to make a fresh application for support on the footing that he satisfies regulation 3(2)(a), but I am not required to address this issue and I agree with the parties that it would not be helpful or proper for me to express any view, however tentative, on issues which may arise hereafter under regulation 3(2)(a).

The claimant in this case has the benefit of interim relief. As I have indicated, although I have dismissed his claim for judicial review of each of these two decisions, I recognise that there is remaining an underlying issue of substance. I will now hear submissions on the question of whether the Secretary of State will voluntarily continue to provide that support for a period of a few weeks or whether I should continue the interim relief for a period in order for the claimant to decide whether to make a fresh application for section 4 accommodation relying on condition 3(2)(a) and for that application and any appeal therefrom to the ASA to be pursued.

MR EICKE: My Lord, perhaps I will deal with your final point first, before we deal with the formal matters. I have taken instruction and spoken to my learned friend. The Secretary of State is content to accept my learned friend's proposal that if the claimant undertakes to make an application within the next two weeks, that the Secretary of State will continue to provide section 4 support for those two weeks, for the time it takes the Secretary of State to make a decision and for the time it takes the Asylum Support Adjudicator to determine the appeal if an appeal is lodged.

MR JUSTICE WILKIE: Yes.

MR EICKE: And therefore the claimant has the certainty of the two weeks and the remainder of the time within the control of the Secretary of State, one way or the other.

MR JUSTICE WILKIE: Yes, that seems --

MR COX: The claimant undertakes to make any further application for section 4 support within 14 days.

MR JUSTICE WILKIE: That seems to me to be a sensible way of dealing with that matter.

MR COX: I am grateful.

My Lord, in terms of the formal order, I do maintain the suggestion that it would assist hereafter if there were to be a declaration, perhaps drawn up by my learned friends, as to the meaning of paragraph 3(2)(c).

My Lord, two ancillary matters. First of all, in terms of costs, your Lordship's judgment records the circumstances which gave rise to the claim.

MR JUSTICE WILKIE: Yes.

MR COX: My Lord, and the fact that the claimant's claim was made to the ASA. The claim was litigated until yesterday on the basis that there had been a defective individual consideration by the Secretary of State of a return. At no point did the Secretary of State say: it is not about you, it is about other people from northern Iraq. If he had ever said that, first of all we would have made an alternative application under that, which may well have meant that we succeeded and would not have needed to proceed with the claim; and secondly, in any event, there would never have been the costs incurred for showing the dangers of the route from Erbil to Kirkuk because we would have seen that on any basis, if the Secretary of State was right about his construction, it was irrelevant. If it was wrong he was acting unlawfully.

MR JUSTICE WILKIE: Are you publicly funded?

MR COX: My Lord, I am.

MR JUSTICE WILKIE: So a detailed assessment of your costs would include those costs?

MR COX: Absolutely, my Lord. On behalf of the Legal Services Commission, in my submission, bearing in mind the rules of the CPR giving you a wide discretion having regard to the conduct of the parties, if the Secretary of State had made his case plain before permission or at the permission stage at either of the two initial hearings, if the Secretary of State had said, "It is not about you at all; it is nothing to do with the safety of returning you. It is just about the fact that I can return some people to Erbil," then the bulk of our costs would never have been expended. In fact --

MR JUSTICE WILKIE: So you are asking for the Secretary of State to pay the LSC's --

MR COX: I am asking for the Secretary of State to pay all our costs because it is very unlikely that anything like the substantive costs would have been incurred. In fact, if the Secretary of State's policy had been made clear, then there would not even have been a claim issued because if the Secretary of State had recognised that --

MR JUSTICE WILKIE: I have your point.

MR COX: My Lord, that is my application for costs in the claim. In relation to the costs of the application for disclosure, in my submission they should be the claimant's in any event.

MR JUSTICE WILKIE: Right. You are not making any application against the Adjudicator?

MR COX: No, my Lord, not at all.

MR JUSTICE WILKIE: Do you have any application to make?

MR EICKE: My Lord, I have no application to make. I am not instructed to make an application for the Secretary of State's costs.

MR JUSTICE WILKIE: I do not need to hear you about the application against the Secretary of State.

MR EICKE: I am grateful, my Lord.

MR JUSTICE WILKIE: I indicated in the judgment that the Secretary of State's position was articulated from the outset, albeit in somewhat opaque terms, and in my judgment the correct order is that there should be no order as to costs, save for full assessment of the claimant's costs for public funding purposes.

MR COX: My Lord, the second matter is that I would ask your Lordship to give me permission to appeal. Hopefully that is not a permission that the claimant would need to take up because the claimant clearly hopes that his application under (a) will succeed.

Secondly, it may well be that the Court of Appeal will not wish to consider the application -- or the appeal, rather -- until it knew there had been judicial consideration of paragraph (a) in this context; in other words to be able to look at both sides of the coin, which your Lordship has unfortunately been unable to do in this hearing.

But, my Lord, in my submission there are two important issues there. They may not seem important at the moment because your Lordship as yet does not know what will happen under (a). But clearly if it were to be held under (a) that this is not a matter which is relevant under (a), then it would be extremely important to the claimant because he would have lost any remedy within which -- any forum within which to test the argument that there is a viable route of return for him.

MR JUSTICE WILKIE: Thank you. Does the Secretary of State have any view as to the ventilating of this issue at a higher level?

MR EICKE: My Lord, we would resist the application for permission, partly because it is built on so many contingencies which would require my learned friend to judicially review the decision of the ASA under 3(2)(a) and then get it up to the Court of Appeal. In my respectful submission, if that were the case and if one got there, then the Court of Appeal would obviously in one sense not be bound by what your Lordship said today in reconsidering the operation of 3(2)(a) and 3(2)(c). In my respectful submission, if my learned friend wanted to take this judgment forward to the Court of Appeal, he should persuade their Lordships whether it is important enough to hear.

MR JUSTICE WILKIE: Yes, thank you. I do see that the issue is one of some importance, but in the circumstances of this particular case and the way in which it has resolved itself, it seems to me that this is not an appropriate case for permission to be granted to appeal, and if the claimant wishes to persuade the Court of Appeal in this particular case to take an appeal on this decision, then it is up to him to persuade the Court of Appeal.

MR COX: So be it, my Lord.

MR JUSTICE WILKIE: Thank you all for your assistance.