MG, R (on the application of) v The Secretary of State for the Home Department

With the permission of Kenneth Parker J the Claimant seeks judicial review of decisions of the Secretary of State relating to the provision of accommodation under Section 95 of the Immigration and Asylum Act 1999 (the 1999 Act) and the refusal of the Claimant’s request for travel expenses in order to assist him in visiting his son in Canterbury, his accommodation being near Portsmouth. The Claimant is a failed asylum seeker. He is an Iranian National who came to this country as long ago as June 2004. His claim for asylum was refused in September of that year and his rights of appeal from that refusal were exhausted in March 2005. Nevertheless he remained in this country and in September 2009 he was convicted of rape and sentenced to five years imprisonment. He was served with notice of liability to deportation but after his release from prison he was not in fact deported and he went to live in the Brighton area. In March 2012 he began a relationship with EW who is a British citizen. That relationship continued until January 2015 but in the meantime the Claimant had been recalled to prison for breach of his licence conditions having been convicted of an offence of possession of a Class B drug. While he was still in prison EW gave birth to the Claimant’s son K on the 15^th September 2013 and shortly after that she moved to live with her parents in Canterbury. In December 2013 the Claimant was again released and went to live with a friend in Brighton. In February 2014 he obtained, after a successful appeal to the First-tier Tribunal, entitlement to financial assistance under Section 95 of the 1999 Act on the basis that he would otherwise be destitute. In August 2014 the provision of subsistence was replaced by the provision of full board accommodation at a hotel near Heathrow Airport where he remained until December of that year.

In the meantime the Claimant had made numerous further representations in support of his claim to asylum starting in September 2006. These were accepted as constituting a “fresh claim” and they were eventually considered by the Secretary of State who, as recently as 8 October this year, informed the Claimant that his claim was again refused and he was issued with a new deportation order on the same date. I am told he has lodged an appeal against those decisions which will have the effect that he will remain in this country at least until the appeal is disposed of which is not expected to be earlier than the end of January 2016..

What this case is about is whether the Secretary of State has properly discharged her obligations under the 1999 Act and Regulations made thereunder (the Asylum Support Regulations 2000). It is not in dispute that these statutory provisions must be read with the EU “Reception Directive” (2003/9/EC of 27 January 2003 laying down the minimum standards for the reception of asylum seekers) which is implemented in this jurisdiction in the Asylum Seekers (Reception Conditions) Regulations 2005 and with Section 55 of the Borders, Citizenship and Immigration Act 2009. Further the Secretary of State, performing functions under the 1999, is required to give effect to her relevant published policy on support for asylum seekers under these provisions and to avoid an unjustified interference with rights guaranteed by Article 8 of the European Convention on Human Rights. The duty under section 55 is imposed on the Secretary of State when exercising any functions in relation to immigration, asylum or nationality. The duty under section 6 of the Human Rights Act 1998 not to act in a way which is incompatible with a Convention right is of course also imposed on this Court and I am thus not confined to deciding whether the Secretary of State’s approach to the Claimant’s (or his son’s) rights guaranteed by Art 8 was irrational but must myself determine whether on the facts there is or has been an unjustified interference with those rights.

As was made clear by the Supreme Court in ZH (Tanzania) v. SSHD [2011] 2 AC 166section 55 of the 2009 Act gives effect to the United Kingdom’s obligations under Article 3.1 of the United Nations Convention on the Rights of the Child 1989 amongst other international instruments, the consequence of which is that there is a binding obligation on the Secretary of State when making decisions about asylum, deportation and removal from the United Kingdom to treat the best interests of the child as a primary consideration by identifying what those best interests required and then assessing whether the strength of any other considerations, or the cumulative effect of other considerations, outweigh the child’s best interests. Thus the needs of the child are not a trump card but they are a primary consideration which means, at the very least, that the Secretary of State must understand from the facts presented to her how the child in a given case might be affected by such a decision before going on to consider whether other factors nevertheless support a decision that affects the child adversely.

Starting with his own letter dated the 15 August 2014 and continuing with letters from case workers at the British Red Cross Refugee Services and from his current solicitors, the Claimant made several requests for what he described as “dispersal accommodation” under Section 95 of the 1999 Act either in Kent, ideally Canterbury where his then partner and child were living or, alternatively, in Brighton. It was said that, as he received no cash payments while he was accommodated at the hotel in Heathrow, he could not afford to travel to Canterbury to see his partner and child and he sought, until he could be accommodated near them, to be given sufficient funds to travel to see them on a weekly basis. The end result of that correspondence was that, on 4 December 2014, the Claimant was provided with accommodation at Cosham near Portsmouth and he was also provided with the sum of £36.62 per week which was the standard amount the Secretary of State then made available under Section 96(1) (b) of the 1999 Act for the “essential living needs” of asylum seekers who otherwise would be destitute. The Claimant is not permitted to work, save in a “shortage occupation” which essentially means a job requiring skills which are locally in short supply, not something that he can offer.

The factual basis for the complaint is that his accommodation is some 130 miles from where his former partner and his son K live. The train journey would take three and three quarter hours or thereabouts although he has been able to identify, with the benefit of a railcard, a day return fare of £13.55. EW’s parents’ accommodation has only 2 bedrooms: she shares with K and, since her own relationship with the Claimant has ceased, if he were to stay overnight he would have to sleep on the floor in the living room.

The claim as originally formulated complained that the Secretary of State had simply applied her policy set out in a UK Visas and Immigration document entitled “Dispersal guidelines” (Policy bulletin 31) and “Dispersal – Accommodation Requests Policy” without regard to the Claimant’s particular circumstances and the facts which supported his request to be accommodated near EW and his son. These policy documents set out the Secretary of State’s approach to cases where a request is made for accommodation in a particular location despite the general rules, set out in Section 97 of the 1999 Act, that the Secretary of State must have regard to “the desirability, in general, of providing accommodation in areas in which there is a ready supply of accommodation” (section 97(1)(b)) and “may not have regard to – (a) any preference that the supported person or his dependants (if any) may have as to the locality in which the accommodation is to be provided” (section 97(2)).

In light of Art 8 ECHR and section 55 of the 2009 Act the Secretary of State accepts that, despite the unqualified terms of section 97, a preference which relates to the need to preserve family life or to safeguard and promote the welfare of children in the United Kingdom should be taken into account and if that preference is rejected reasons should be given for that rejection. In the Dispersal – Accommodation Requests Policy there is express mention of section 55 and the need to make the child’s interests “a primary, although not the only consideration”. Under the heading “Family ties” and after quoting Art 8 there is this:

It was assumed by the Claimant’s advisers that the provision of accommodation near Portsmouth amounted not simply to a rejection of his request to be accommodated either in Kent (preferably in Canterbury) or alternatively in Brighton but to an application of the general policy that a placement would be outside London or the south east. However it has since become apparent that, firstly, Portsmouth is considered to be within the south east for these purposes and, secondly, that some enquiries were made to see if accommodation might be available in Kent or at any rate nearer to Canterbury. The argument for the claimant has rather moved on from a challenge based on an alleged failure to consider whether the normal rule in section 97 should be modified in the Claimant’s case to a complaint that the Secretary of State has still failed to comply with the obligations imposed on her under Section 55 of the 2009 Act and has acted in breach of the Claimant’s and his son’s rights to a family life under Article 8 of the ECHR by placing the Claimant (albeit within the south east) at a distance which has the effect that his relationship with his son is impeded to the extent that K’s welfare is not being properly safeguarded or promoted.

As the Claimant has in fact been given accommodation in the south east strictly the dispersals policy is not in play in this case but Mr Mitchell for the Secretary of State has not argued that the considerations officials are required to have in mind in deciding whether to accede to a request to be accommodated in London or some other location in the south east set out in the parts of the Dispersal – Accommodation Requests Policy which I have quoted are not equally applicable to the Claimant’s request to be accommodated nearer to his son than Portsmouth even though that is in the south east.

There was always in these proceedings an alternative argument that the Claimant should have been provided with financial support to assist with travel costs between Portsmouth and Canterbury. The Claimant has been provided with cash support in the standard sum of £36.62 per week (since raised to £36.95) and the Claimant’s case is that this modest amount does not cover the cost of travel between Portsmouth and Canterbury. The claim for additional travel expenses is based on section 96 (2) of the 1999 Act which provides:

The exercise by officials of this power is also subject to guidance in the form of published policy namely that in Policy Bulletin 28 “Providing travelling expenses and reimbursing essential travel costs”. This policy document deals specifically with a number of circumstances in which requests for travel expenses may be made but none that are apposite to a case where an asylum seeker wishes to travel to visit family members. However Annex C refers and to and paraphrases section 96 (2). Further the Claimant’s advisers have put before me a letter dated 3 July 2015 from a policy adviser in the Home Office to the Migrants’ Law Project which responded to a letter before claim from that organisation foreshadowing a possible challenge to the lawfulness of the rates of cash support provided to meet essential living needs of asylum seekers under sections 95 and 96 (1) (b) of the 1999 Act. These rates had been re-determined by the Secretary of State in response to a decision of Popplewell J in R (Refugee Action) v. SSHD [2014] EWHC 1033 (Admin) in which the Secretary of State’s determination under Regulation 10 of the 2000 Regulations that a single adult required, for essential living needs, £36.62 per week was under scrutiny. That determination was quashed on the ground that the Secretary of State had not considered certain unavoidable costs that would generally be incurred in meeting essential living needs. The Secretary of State issued a new determination under Regulation 10 which purported to take account of these additional requirements, although the determination of the total amount needed by a single asylum seeker hardly changed (it rose to £36.95 per week). In that fresh determination the Secretary of State had provided a breakdown of the components of items of expenditure which will be required to meet those needs and they included an allowance of £3 per week for travel costs. In the 3 July 2015 letter the Secretary of State’s policy adviser, responding amongst other things to a complaint about the level of travel costs allowed, said that the £3 per week allowance was based on the fact that asylum seekers would be accommodated in urban areas where many places which they might wish to visit to maintain “interpersonal relationships and a minimum level of participation in social, cultural and religious life” will be available within walking distance or at any rate within a short journey on public transport which will be covered by the £3 per week allowance. Importantly for present purposes the writer continued thus:

I do not read the words “the circumstances of a particular case are exceptional” in section 96 (2) as confining consideration of claims for such supportto a very narrow category of extreme cases and it is clear that the Secretary of State does not take that view either. Thus, although there is nothing unusual about an absent father whose relationship has broken down with the mother of his child living more than 100 miles away from them, it would appear that the Secretary of State would be prepared to consider such cases as exceptional within section 96 (2), depending on the facts of the particular case.

It will also be noted that in that paragraph the policy adviser contemplates relocation as an alternative to provision of travel expenses.

The Defendant filed evidence in these proceedings in July 2015 in the form of the witness statement of Doreen Umeadi. It was because of the late filing of that evidence that the hearing of the substantive claim which was due to take place on 14 July was adjourned. Thereafter, in light of this witness statement, the Claimant applied to amend his Statement of facts and grounds in the form of the draft dated 7 September 2015. The amendment is not opposed save that Mr. Mitchell objected to what appeared to be a new and generic challenge to a possible policy adopted by the Secretary of State relating to prioritising the use of accommodation available under section 95 in Hastings. Mr. Westgate has however disavowed any intention of raising a separate challenge to some such policy. He merely wishes to rely upon what he says are inadequate (and he says incomprehensible) reasons why accommodation that might otherwise have been available in Hastings was not available for the Claimant. I believe that has quelled Mr. Mitchell’s concern about the way in which the claim by way of amendment might have opened up a new systemic rather than case-specific challenge and I allowed the amendment in full.

An issue in the case is whether the fact that the claimant and his son live 130 miles apart means that, if he cannot afford (and is not helped by others) to have regular meetings with his son, his and his son’s Art 8 rights are infringed by acts or omissions of the Defendant such that they need to be justified. Mr Mitchell says that the claimant’s case does not get that far. The parents never lived together and K has always lived with EW. It seems to me that argument is hopeless: I do not need to cite any of the authorities in this jurisdiction and Strasbourg which accept that contact between a natural parent and a child can constitute family life even though they may never have lived together. It all depends on the facts of the particular case but the evidence here is all one way: before and after the breakdown of their own relationship the Claimant and EW have both striven to ensure that K maintains contact with his father and K has responded well to such contact when it occurred. Further it is clear that indirect contact through Skype for example is no substitute for face to face meetings particularly in view of K’s age. Mr Mitchell also pointed out that the Claimant would have been content to be accommodated in Brighton and that is still a long way from Canterbury. That is true but I do not think it is sufficient for the Defendant (or me) to conclude that his claimed concern to have regular contact with K is not genuine.

Mr Mitchell also drew my attention to the statutory guidance (“Every child matters” of November 2009) made under section 55 (3) of the 2009 Act to which any person exercising relevant functions (including those this case is concerned with) must have regard. He says that this has been complied with in this case and he refers to paragraph 1.4 which in summary requires officials to avoid decisions which might cause positive harm to children. Mr Mitchell says no such harm is caused to K by the accommodation decision in this case. But section 55 itself requires the welfare of the child not simply to be safeguarded but also promoted and the statutory guidance cannot water down this obligation. I take the view therefore that there is a relevant aspect of K’s welfare that potentially must be promoted (though it is not a trump card) in the form of facilitating contact with his father.

What is it therefore that Ms Umeadi says about the decision making in this case? She works in the London area Asylum Support Team and says, after referring to the Home Office “no choice basis” policy about dispersal requests, that the Defendant did take into account the Claimant’s child and of the Secretary of State’s obligations under section 55 of the 2009 Act but noted that, as the Claimant’s child was living with his British mother, “there was no evidence provided by the Claimant to suggest that there would be any harm caused to the Claimant’s child by continuing to reside with his mother”. Ms Umeadi goes on to say “furthermore, in accordance with the dispersal policy, the Defendant noted that there was no available accommodation in Canterbury”.

It will be seen that the reasons given for the Defendant taking into account her obligations under section 55 of the 2009 Act missed the mark completely: the point was not that by her decisions in this case the Secretary of State has created a risk that K would be separated from his mother but simply that there would be a practical difficulty about K’s continued relationship with his father. That in itself it seems to me discloses a failure properly to consider the need to safeguard and promote the welfare of K under section 55. Indeed even without Ms Umeadi’s witness statement it can be seen from the letter from the Home Office to the Claimant’s solicitors dated 9 February 2015 that this error had been made. In paragraph 5 of that letter there is this:

Mr. Mitchell accepts that that responsibility is not discharged by simply paying lip service to the section 55 obligation. On the other hand, particularly where that obligation is expressly referred to in the Secretary of State’s reasons, the Court should accept that the obligation has been discharged unless there was clear evidence that it has not. Mr. Westgate QC accepts that as a general proposition but he says in this case the evidence does show that K’s best interests were not treated as a primary consideration because there was a failure to consider the particular point being made as to why he will be adversely affected by the decisions being taken in relation to the location of his father’s accommodation and the refusal to supply additional travel expenses.

In paragraph 7 of the letter dated 9 February 2015 there is this:

The Claimant’s solicitors made a Request under Part 18 of the CPR for clarification of certain matters set out in Ms Umeadi’s witness statement. The final version of the response to that Request is dated 17 August 2015 and, in summary, explains that the reason it is not considered appropriate for placement in accommodation provided by Kent County Council was the high number of Unaccompanied Asylum Seeking Children who need to be accommodated as they come through Dover and other ports in Kent and “it is not considered to be in the best interests of the safety of Unaccompanied Asylum Seeking Children to be accommodated with single adult males”. The response also deals with a request asking for further information about the availability of accommodation close to Canterbury generally and emails are attached showing that enquiries were made of Clearsprings Ready Homes Limited, who are it seems a provider of accommodation to the Home Office. On 5 November 2014, before the Claimant had moved to his Portsmouth accommodation, there is an email to Clearsprings saying: “Please source accommodation in Hastings. We would like the applicant moved as soon as possible”. No reply is exhibited but in January 2015 they were asked if they had anything available near Brighton or Canterbury to which the answer given was “we do not provide accommodation in either of these areas, the closest area that we provide accommodation is Hastings”. However in answer (10) (c) of the Part 18 Response the Defendant has said this:

It has to be said that the combination of the reasons given in February 2015, Ms Umeadi’s witness statement attempting to explain it and the further purported clarification in the Part 18 Response leaves matters, if anything, even more opaque than they might have seemed to be at the time these proceedings were launched. Mr. Westgate’s argument is simply that if the Defendant, given the opportunity to do so, cannot clearly and simply explain (a) whether accommodation nearer Canterbury was available or, (b), if it was why there were reasons, notwithstanding the Claimant’s request to be nearer his son, not to comply with it, the only conclusion is that the Defendant has failed to discharge her duty to consider the effect on the relationship between father and son before deciding what decision to make about location of accommodation.

What is missing from the explanation provided by Ms Umeadi and in the Part 18 Response is a clear explanation of what is meant by “dispersal accommodation” available to the Defendant and why Hastings which apparently has places for 101 people, was never in practical terms available. The explanation that Hastings is required to provide accommodation for those who are currently in emergency accommodation and need to be dispersed within 9 days (apparently some sort of target limit on the period that asylum seekers stay in emergency accommodation though the Claimant himself was in such accommodation for some 4 months) does not really explain why the Claimant could not be moved there: as Mr. Westgate points out, while there may be others equally in need of accommodation in the south east contrary to the general rule that dispersal will be outside London and the south east, as Portsmouth is in the south east the Claimant could simply have been swapped with someone who would otherwise be heading for Hastings.

Nevertheless it seems to me I need to take a realistic view of what was going on here: it is clear from the emails that efforts were made to find accommodation nearer to Canterbury. I think it would be wrong for me not to accept that there is no ordinary accommodation available nearer than Hastings and that this is not a case where it was appropriate to exercise powers to take up local authority or housing association accommodation or private provision, particularly in Kent where it is obvious there are considerable pressures. I take the point that the observation that it is not appropriate to accommodate an adult asylum seeker with unaccompanied children is a non sequitur: no one is suggesting that that is what is required. But it seems to me that what is being said is that there are considerable pressures on accommodation in that area for obvious reasons (and that is indeed one of the reasons why location will normally be outside the south east). It is true that Kent County Council have written to the Claimant’s solicitors disavowing the existence of the “ruling” referred to by Ms Umeadi. Nevertheless I am, with some hesitation, prepared to accept that there were and continue to be real practical difficulties about accommodating the Claimant nearer than Portsmouth and that includes Hastings. An effort to get a placement there was made and I cannot conclude that nevertheless there was in fact accommodation in Hastings which, for no good reason, was not taken up. I accept that the position might need to be reviewed from time to time and the statement of Ms Umeadi in July of this year that Portsmouth “was the closest available accommodation to Canterbury” may only have been true when enquiries were being made in November and January last. I do not have any evidence of enquiries made subsequently but the Part 18 response of August 2015 contains a statement in the present tense that “at this moment in time they have no bed spaces available in Hastings.”

Strictly that is not evidence in the case (see CPR Part 54.16). Mr Westgate has not taken that objection but says it does not address the situation prevailing at any time between January and August or since the Part 18 response. He also says that even if the Hastings accommodation usually used is not available that is not to say that it would be impossible to find accommodation in or near Canterbury: as Mr. Westgate points out the State has the resources to find accommodation anywhere. But when it comes to the balancing exercise which must be performed under Article 8 and indeed under the duty to provide accommodation under the 1999 Act in light of Section 55 of the 2009 Act, it seems to me that practical difficulties of the sort which I find exist and have existed in this case outweigh the effect on the relationship between the Claimant and his son K and would therefore amount to an objective justification for the decision to accommodate the Claimant in Portsmouth notwithstanding the interference with family life involved in the geographical separation of the Claimant from his son.

That however is subject to an important qualification: it is justified if and only if practical arrangements exist to allow regular contact between the two. In respect of that I accept that contact on the telephone or by Skype is unsatisfactory particularly for a child as young as K who necessarily does not understand why he is not in physical contact with his father. Despite the fact that the Claimant may very well, if his appeal to the Tribunal fails, be forced to leave this country thus making continued contact very difficult if not impossible, that does not mean that in the meantime, when K is so young, the Court could view with equanimity a situation where it is virtually impossible for regular contact to be maintained.

Mr. Westgate accepted in argument that if an interference with family life was disproportionate because of a combination of geographical location and the lack of means to travel, it might become a proportionate interference if one of those factors were removed. I have already said that I am prepared to accept with some hesitation that there were and there are serious practical difficulties about housing the Claimant nearer than Portsmouth. There would not and could not however be practical difficulties about the provision of the relatively modest sum for regular trips to and from Canterbury. The Defendant has failed to demonstrate somehow that the Claimant is able to save sufficient from his modest allowance to pay for regular return trips or that there is some other way, through the generosity of friends or visits to him from his former partner (who has very limited means), to enable him to maintain regular face to face contact with his son.

Mr. Mitchell says that such expenses could not be provided for under Section 96 (2) because the circumstances of the Claimant are not exceptional. In the letter of 9 February 2015 it is said: “You have claimed in your letter that your client’s case is exceptional but have failed to provided [sic] any evidence to substantiate this claim, therefore your claim is baseless”. That seems to me to ignore and fly in the face of the information that had then been provided as to the costs of travel and the inability of the Claimant to rely on other sources of finance to achieve it. The geographical relationship between Portsmouth and Canterbury was, of course, something necessarily known to the Defendant. Mr. Mitchell also takes a new point based on what the Claimant says in his fourth witness statement, namely that he is a heavy smoker: he says he smokes 35 cigarettes a day and cannot give up or reduce his habit because he is addicted to it. Mr. Mitchell submits therefore that the Claimant apparently has the means to pay for an expensive habit which cannot be said to be part of the Claimant’s essential living needs and he must have, potentially, the ability to find savings out of his weekly allowance which would enable him to travel to see his son. Mr. Westgate points out that unless there is evidence of some other undisclosed source of funds (and there is none) the only conclusion is that the Claimant’s smoking habit is being cross-subsidised by his cutting down on essential living needs and in particular on food. Indeed that is what the Claimant, in his fourth witness statement says is happening.

My conclusion is this: the decisions under challenge in this case, namely the location of the Claimant in Portsmouth and/or the refusal to provide him with additional travel expenses, are flawed particularly by the focus on a non-existent risk of separation of mother and child to the exclusion of the consequences of reduced contact of the son and father. It would be open to me to quash them and not limit the remedy to the refusal to provide travel expenses because the letter of 9 February 2015 may be regarded as a composite decision which requires to be reconsidered. The Court however has some discretion about that: my task is to ensure that a decision is not left in place which interferes with the Claimant’s and his son’s Art 8 rights in a way which cannot be justified. Equally, in finding a failure properly to have regard to the need to promote K’s welfare, this Court does not have to do more than is necessary to ensure that proper regard is given. The Claimant in support of the objection that location nearer his son was not properly considered has pointed out the length of the journey involved. However as I am primarily concerned with safeguarding and promoting the welfare of his son, the fact that the Claimant will have to undergo quite a gruelling journey in both directions is only relevant insofar as that itself impacts on his son’s welfare. His son of course does not need to make the journey. No doubt it will mean that the Claimant will be tired when he arrives but he is not working at present and it seems to me, even if he cannot stay overnight, he will be able to give proper attention to contact with his son when he sees him.

In my judgment therefore the proper course is to quash the decision insofar as it rejected the application for the costs of reasonable travel between Portsmouth and Canterbury. I do not seek to pre-empt the decision as to what those reasonable costs are (whether they should assume some level of saving out of the Claimant’s limited resources or the help of others) but it seems to me that they should allow for at least fortnightly trips though I will hear further submissions on that if one or other of the parties wishes to make them. I will also hear submissions as to the disposal of the claimed remedy for just satisfaction in relation to his Article 8 rights.