Mustafa, R (On the Application Of) v Kent County Council

The claimant was born on the 26th June 1998. He arrived in the UK, unaccompanied, on the 24^th June 2015 and claimed asylum at the port. His claim was rejected by the Secretary of State for the Home Department on the 9^th February 2016, and his appeal against that decision was dismissed by the First-tier Tribunal on the 8^th September 2016. On the 25^th September 2017 the claimant submitted further representations to the Secretary of State, stating that they constituted a “fresh claim with the aid of new evidence which has not already been considered and which, taken together with the previously considered material, create a realistic prospect of success”. The Secretary of State has not yet decided whether the claimant’s further representations amount to a “fresh claim” in accordance with paragraph 353 of the Immigration Rules.

When he arrived in the UK the claimant was aged 16. The defendant local authority provided him with support under Part III of the Children Act 1989. When he turned 18, in June 2016, he became a “former relevant child” within the meaning of section 23C(1) of the Children Act and was provided with support accordingly. On dismissal of his asylum appeal in September 2016, the claimant ceased to be an asylum-seeker and, by virtue of Schedule 3 of the Nationality Immigration and Asylum Act 2002 (‘NIAA’), ceased to be entitled to support under the Children Act unless it was necessary for such support to be provided in order to avoid a breach of his rights under the European Convention on Human Rights (‘ECHR’) or the EU Treaties. Following an assessment in March 2017 the defendant decided that it was not necessary to do so and he was notified that support would be terminated on the 21^st April 2017.

After submitting the further representations to the Secretary of State on the 25^th September 2017, the claimant’s solicitor invited the defendant to reassess the claimant’s needs and reinstate his accommodation and support on the basis that he had made a claim for asylum and so was an asylum-seeker and thereby not excluded from Children Act support by reason of Schedule 3 of NIAA. The defendant responded that it owed no duty to the claimant unless and until the Secretary of State accepted the further representations as a fresh claim.

The claimant commenced these proceedings on two grounds. First it was claimed that, by reason of making further representations, the claimant was an asylum-seeker. Second, the claimant challenged the defendant’s decision that it was not necessary to provide him with support under the Children Act in order to avoid a breach of his human rights.

Robin Purchas QC sitting as a Deputy High Court Judge granted permission on both grounds, following an oral hearing on the 26^th April 2018. He joined the Secretary of State to the proceedings as an Interested Party. After the grant of permission, the defendant carried out a further assessment confirming that it was not necessary to provide support in order to avoid a breach of the claimant’s human rights. The claimant does not challenge that assessment and has withdrawn ground 2.

Section 54 and Schedule 3 of the Nationality Immigration and Asylum Act 2002 (NIAA) provides for the withholding and withdrawal of support under specified enactments from certain categories of persons. The relevant provisions of the Schedule are as follows.

“1

(1) A person to whom this paragraph applies shall not be eligible for support or assistance under—

…

(g)

section 17, 23C, 23CA, 24A or 24B of the Children Act 1989 (c. 41) (welfare and other powers which can be exercised in relation to adults),…

(l)

a provision of the Immigration and Asylum Act 1999 (c. 33)….

…

3.

Paragraph 1 does not prevent the exercise of a power or the performance of a duty if, and to the extent that, its exercise or performance is necessary for the purpose of avoiding a breach of—

(a)

a person's Convention rights, or

(b)

a person's rights under the EU Treaties.

…

7.

Paragraph 1 applies to a person if—

(a)

he is in the United Kingdom in breach of the immigration laws within the meaning of section 50A of the British Nationality Act 1981, and

(b)

he is not an asylum-seeker.

…

17

(1) In this Schedule—

“asylum-seeker” means a person—

(a)

who is at least 18 years old,

(b)

who has made a claim for asylum (within the meaning of section 18(3)), and

(c)

whose claim has been recorded by the Secretary of State but not determined,

…

(2)

For the purpose of the definition of “asylum-seeker” in sub-paragraph (1) a claim is determined if—

(a)

the Secretary of State has notified the claimant of his decision,

(b)

no appeal against the decision can be brought (disregarding the possibility of an appeal out of time with permission), and

(c)

any appeal which has already been brought has been disposed of.

(3)

For the purpose of sub-paragraph (2)(c) an appeal is disposed of when it is no longer pending for the purpose of—

(a)

Part 5 of this Act, or

(b)

the Special Immigration Appeals Commission Act 1997 (c. 68).”

Section 18(3) provides:

“(3)

A claim for asylum is a claim by a person that to remove him from or require him to leave the United Kingdom would be contrary to the United Kingdom's obligations under—

(a)

the Convention relating to the Status of Refugees done at Geneva on 28th July 1951 and its Protocol, or

(b)

Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms agreed by the Council of Europe at Rome on 4th November 1950.”

Section 95 of the Immigration and Asylum Act 1999 (IAA) makes provision for support for destitute asylum-seekers, by the Secretary of State. Section 4 of IAA makes provision for failed asylum-seekers as follows:

“4.

Accommodation.

…

(2)

The Secretary of State may provide, or arrange for the provision of, facilities for the accommodation of a person if—

(a)

he was (but is no longer) an asylum-seeker, and

(b)

his claim for asylum was rejected.

…

(4)

The following expressions have the same meaning in this section as in Part VI of this Act (as defined in section 94)—

(a)

asylum-seeker,

(b)

claim for asylum, and

(c)

dependant.

(5)

The Secretary of State may make regulations specifying criteria to be used in determining–

(a)

whether or not to provide accommodation, or arrange for the provision of accommodation, for a person under this section;

(b)

whether or not to continue to provide accommodation, or arrange for the provision of accommodation, for a person under this section.

…

(10)

The Secretary of State may make regulations permitting a person who is provided with accommodation under this section to be supplied also with services or facilities of a specified kind…”

Section 94 includes the following definitions:

“(1)

In this Part –

“asylum-seeker” means a person who is not under 18 and has made a claim for asylum which has been recorded by the Secretary of State but which has not been determined;

“claim for asylum” means a claim that it would be contrary to the United Kingdom's obligations under the Refugee Convention, or under Article 3 of the Human Rights Convention, for the claimant to be removed from, or required to leave, the United Kingdom;”

The Immigration and Asylum (Provision of Accommodation to Failed Asylum-Seekers) Regulations 2005 are made under the powers in section 4(5) of IAA and include the following:

“3.— Eligibility for and provision of accommodation to a failed asylum-seeker

(1)

Subject to regulations 4 and 6, the criteria to be used in determining the matters referred to in paragraphs (a) and (b) of section 4(5) of the 1999 Act in respect of a person falling within section 4(2) or (3) of that Act are–

(a)

that he appears to the Secretary of State to be destitute, and

(b)

that one or more of the conditions set out in paragraph (2) are satisfied in relation to him.

(2)

Those conditions are that–

(a)

he is taking all reasonable steps to leave the United Kingdom or place himself in a position in which he is able to leave the United Kingdom, which may include complying with attempts to obtain a travel document to facilitate his departure;

(b)

he is unable to leave the United Kingdom by reason of a physical impediment to travel or for some other medical reason;

(c)

he is unable to leave the United Kingdom because in the opinion of the Secretary of State there is currently no viable route of return available;

(d)

he has made an application for judicial review of a decision in relation to his asylum claim–

(i)

in England and Wales, and has been granted permission to proceed pursuant to Part 54 of the Civil Procedure Rules 1998,

(ii)

in Scotland, pursuant to Chapter 58 of the Rules of the Court of Session 1994 or

(iii)

in Northern Ireland, and has been granted leave pursuant to Order 53 of the Rules of Supreme Court (Northern Ireland) 1980; or

(e)

the provision of accommodation is necessary for the purpose of avoiding a breach of a person's Convention rights, within the meaning of the Human Rights Act 1998.”

Part 5 of NIAA makes provision for rights of appeal against decisions by the Secretary of State to refuse protection and human rights claims. The definitions relating to that Part include

“82(2) For the purposes of this Part –

(a)

a “protection claim” is a claim made by a person (“P”) that removal of P from the United Kingdom—

(i)

would breach the United Kingdom's obligations under the Refugee Convention, or

(ii)

would breach the United Kingdom's obligations in relation to persons eligible for a grant of humanitarian protection;…”

and

“113(1) In this Part, unless a contrary intention appears—

“asylum claim” means a claim made by a person to the Secretary of State at a place designated by the Secretary of State that to remove the person from or require him to leave the United Kingdom would breach the United Kingdom's obligations under the Refugee Convention, ,,,

“human rights claim” means a claim made by a person to the Secretary of State at a place designated by the Secretary of State that to remove the person from or require him to leave the United Kingdom or to refuse him entry into the United Kingdom would be unlawful under section 6  of the Human Rights Act 1998 (c. 42) (public authority not to act contrary to Convention),…”

Paragraph 353 of the Immigration Rules provides:

“When a human rights or protection claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:

(i)

had not already been considered; and

(ii)

taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection. This paragraph does not apply to claims made overseas.”

EU measures for harmonising common minimum standards for asylum include Council Directives 2003/9/EC (“the Reception Directive”) and 2005/85/EC (“the Procedures Directive”). Both have been recast by Directives 2013/33/EU and 2013/32/EU respectively but these have not been adopted by the UK and so is not bound by them. The transposition dates for the Reception Directive and the Procedures Directive were, respectively, 6^th February 2005 and 1^st December 2007.

It was common ground in these proceedings that the expression “asylum-seeker” in the Reception Directive includes a person who has made a subsequent application for asylum after their original application has been refused claim: R(ZO)(Somalia) v Secretary of State for the Home Department [2010] UKSC 36; [2010] 1 WLR 1948 at [31]. It was also common ground that this applies where the Secretary of State has not yet decided to accept the subsequent application as a fresh claim in accordance with paragraph 353.

The Reception Directive laid down “minimum standards for the reception of asylum seekers in Member States” (Article 1). Recital 7 to the Directive described the minimum standards as being those “that will normally suffice to ensure them a dignified standard of living”. The Directive made provision for a variety of specific circumstances and provisions, but the general rules were in Article 13:

“1.

Member States shall ensure that material reception conditions are available to applicants when they make their application for asylum.

2.

Member States shall make provisions on material reception conditions to ensure a standard of living adequate for the health of applicants and capable of ensuring their subsistence…

3.

Member States may make the provision of all or some of the material reception conditions and health care subject to the condition that applicants do not have sufficient means to have a standard of living adequate for their health and to enable their subsistence. …”

The Reception Directive was transposed into UK law in part by the Asylum Seekers (Reception Conditions) Regulations 2005 (‘the Reception Regulations’). The Regulations make specific provision for support for families and those with special needs and impose a duty on the Secretary of State to provide support to an asylum-seeker who he thinks is eligible for support under section 95. Regulation 2(1) includes the following definitions:

“2(1) In these Regulations–

…(b) “asylum seeker” means a person who is at least 18 years old who has made a claim for asylum which has been recorded by the Secretary of State but not yet determined;

(c)

“claim for asylum” means a claim made by a third country national or a stateless person that to remove him or require him to leave the United Kingdom would be contrary to the United Kingdom's obligations under the Convention relating to the Status of Refugees done at Geneva on 28th July 1951 and its Protocol;…”

The Explanatory Note to the Regulations states that “Many parts of the Directive do not require implementation as consistent provision is already made in existing domestic legislation”. The Explanatory Memorandum to the Regulations expands on this:

“4.3

The Directive is being implemented both by the introduction of new legislation as well as reliance on existing legislation. Much of the Directive is concerned with the provision of housing and other essential living needs for asylum seekers and their dependants whilst their claims are outstanding. Provision for this is already made for this in part VI of the Immigration and Asylum Act 1999 (“the 1999 Act”) and in the Asylum Support Regulations 2000 which are made there under. Where possible the changes that are necessary to implement the Directive are being made in the Asylum Support (Amendment) Regulations 2005, however the provisions contained in these Regulations are not apt for inclusion in either those regulations or in the Immigration Rules.”

The Procedures Directive was transposed in part by the Asylum (Procedures) Regulations 2007 (‘the Procedures Regulations’). The Explanatory Memorandum states:

“4.3

Many of the Directive’s provisions are already applied in UK practice and they must now be given statutory effect – the UK must therefore legislate in order to comply with the Directive. Where possible, the changes that are necessary to implement the Directive have been made through the Immigration Rules. The provisions contained in these Regulations, however, are not suitable for inclusion on the Immigration Rules.”

The Procedures Regulations provide that “asylum claim” has the meaning in section 113 of NIAA.

The issue in these proceedings is whether a “claim for asylum” within paragraph 17 of Schedule 3 of NIAA includes further submissions which have not yet been accepted by the Secretary of State as a fresh claim pursuant to paragraph 353 of the Rules. If it does, then the claimant is an “asylum-seeker” for the purpose of those provisions and so paragraph 7 of Schedule 3 of NIAA does not apply so as to exclude him from Children Act support.

Ms Luh advanced her case first on the basis of the UK government’s obligations arising under the Reception Directive and the application of the principle in Marleasing SA v La Comercial Internacionale de Alimentacion SA, Case C/106/89, [1990] ECR I-4135, and, second, as a matter of the ordinary statutory construction of paragraph 17 of Schedule 3 of NIAA. It is more appropriate to deal with the submissions in reverse order.

There were two strands to Ms Luh’s case as to the meaning of “claim for asylum” on ordinary principles of statutory construction. First, she said that the term “claim for asylum” is clear and unqualified. A “claim” is an application or a request. There is no warrant for limiting the meaning of “claim” to mean only an initial claim or further submissions which have been accepted as a claim by the Secretary of State. Ms Luh said that the defendant’s case that a “claim” is not made until the Secretary of State accepts further submissions pursuant to Paragraph 353 involves limiting the scope of primary legislation by reference to a rule in a manner not permitted by the legislation itself. She said that section 3(2) of the Immigration Act 1971, which authorises the making of the Immigration Rules, is concerned with matters of procedure but that the defendant’s approach means that rule 353 would qualify substantive legislative provisions and so goes beyond the permissible role of the Immigration Rules. She said that it follows that case law as to the meaning of “claim” in Part 5 of NIAA, which relates to procedural matters, is irrelevant for the purpose of interpreting “claim” in Part 3 and Schedule 3 of NIAA. In any event, in BA (Nigeria) v Secretary of State for the Home Department [2009] UKSC 7, [2010] 1 AC 444 the Supreme Court decided that “claim” for the purposes of the appeal provisions in the NIAA (sections 82 and 92) included repeat applications whether or not they had been accepted as fresh claims under rule 353. The requirement in paragraph 17(1)(c) that the “claim has been recorded” simply refers to the administrative process of receiving the application.

The second strand of Ms Luh’s argument was founded on the terms of the Reception Directive and its transposition into domestic law. She further developed her case by way of written submissions sent after the hearing, to which Mr Knafler responded. There are in essence two aspects of this second strand. First, Ms Luh submitted that the terms of the Transposition Note and the UK government’s other communications regarding transposition mean that the definition of “asylum-seeker” in domestic law must mirror that in the Directive. Article 26 of the Reception Directive required Member States to “bring into force the laws, regulations and administrative provisions necessary to comply with the Directive by 6 February 2005” and to inform the Commission that it had done so and to “communicate to the Commission the text of the provisions of national law which they adopt in the filed relating to the enforcement of this Directive”. In the case of the Reception Directive, the UK identified the 2005 Regulations as amongst the implementing measures, but did not identify section 4 of IAA. The Transposition Note attached to the Explanatory Memorandum and Transposition Note for the Reception Regulations identified the same implementing measures as those notified to the Commission and published in the OJEU. It was produced to comply with the UK’s obligations under Article 26 of the Directive, and so had “special EU legal status”. It was a clear statement of what the UK would provide to all EU asylum seekers. Ms Luh submitted that it was important that the UK should adhere to such a statement, in order to allow for scrutiny of its compliance with EU law. She submitted that “The Claimant must be entitled to access these specified measures as a matter of EU law” and it is not open to the UK government to seek to rely on existing legislation as implementing its obligations unless at the time of transposition or communication with the Commission that legislation was identified as doing so.

Alternatively, she submitted, the Transposition Note to the Reception Regulations was a clear statement of legislative intent which should inform the interpretation of the terms “asylum-seeker” and “claim for asylum”. The Note stated that no provisions were required to implement the definition of “asylum-seeker” because “Where necessary, in the legislation implementing the Directive, these terms have been defined”. Ms Luh said that it was clear from this that “the Government assumed that the ‘asylum seeker’ definition under domestic law already operated in conformity with the Directive” and so included those who had made further submissions. Moreover it was implicit that the legislation which was identified in the Transposition Note as implementing the UK’s obligations under the Directive applied to all who are asylum-seekers under the Directive and that the Regulations should be construed accordingly.

Ms Luh submitted that the UK’s obligation under section 2 of the European Communities Act 1972 to give legal effect to the Reception Directive meant that the UK was bound to recognise as asylum-seekers all those who are within the scope of that term in the Reception Directive including those who make a subsequent application. Her argument is as follows.

National courts have an obligation to interpret national law in conformity with a directive so far as is possible. In Marleasing the CJEU held:

“8 …Member States' obligation arising from a directive to achieve the result envisaged by the directive and their duty under Article 5 of the Treaty to take all appropriate measures, whether general or particular, to ensure the fulfilment of that obligation, is binding on all the authorities of Member States including, for matters within their jurisdiction, the courts. It follows that, in applying national law, whether the provisions in question were adopted before or after the directive, the national court called upon to interpret it is required to do so, as far as possible, in the light of the wording and the purpose of the directive in order to achieve the result pursued by the latter and thereby comply with the third paragraph of Article 189 of the Treaty.” (emphasis added)

Ms Luh submitted that this means that domestic law provisions for asylum-seekers must be interpreted so as to include those within the scope of the Directive. “Asylum-seeker” in the Directive includes a person who has made further submissions which have not yet been accepted as a claim, and so Schedule 3 should be interpreted so as to include such persons.

On behalf of the defendant, Mr Knafler QC said that case law has established judicially that “asylum-seeker” does not include a person who has made further submissions which have not yet been accepted under rule 353. That meaning has never been called into question by the courts and Parliament has legislated in the light of that case law and can be taken to have adopted and approved the meaning given to it in that case law. He also relied on pending legislative amendments, made by the Immigration Act 2016 but not yet brought into force, which he submitted provide a clear indication of the meaning of the present definition.

He submitted that there is no principle of law which requires the Transposition Note and other communications to be treated as of binding legal effect, and indeed to do so would be contrary to the two fundamental principles that: (i) as a matter of EU law, Member States are free to choose how to achieve the result required by the Directive and that the Marleasing principle applies only where national law fails to achieve that result; and (ii) delegated legislation cannot alter the meaning of primary legislation, which has an established meaning as above. In any event, it is factually incorrect to assert that the UK represented to the Commission that it intended to treat failed asylum-seeker with further representations on the same basis as asylum-seekers for the purpose of reception conditions.

Finally, he said that EU law does not apply in this case. The claimant’s needs are being met at present, consistently with the requirements of the Reception Directive, and the law makes sufficient provision to satisfy the minimum requirements in the Directive should the claimant become destitute or other relevant needs arise. He relied in particular on section 4 of IAA and the obligation of the state to make such provision as is necessary to avoid a breach of Convention rights, which provision would also satisfy the minimum obligations of the Directive.

Mr Jolliffe, for the Secretary of State, supported the defendant’s case.

The definition of “asylum-seeker” in paragraph 17(1) of schedule 3 of NIAA is materially the same as that in section 94 of the IAA, the meaning of which was considered in R (Nigatu) v Secretary of State for the Home Department [2004] EWHC 1806 (Admin) in circumstances where, like the present, the claimant’s initial claim for asylum had been rejected and he then made further representations to the Secretary of State. Collins J referred to the decision of the Court of Appeal in R (Secretary of State for the Home Department) ex p Onibiyo [1996] QB 768, in which one of the issues was when further submissions during the same stay in the UK constituted a claim for asylum for the purpose of generating a right of appeal. Counsel for the applicant accepted that there had to be something significantly different from the previous claim. The Court of Appeal agreed and held that there would only be a fresh claim where it was “sufficiently different from the earlier claim to admit of a realistic prospect that a favourable view could be taken of the new claim”.

Nigatu was not concerned with appeal rights but with the provision of asylum support. Collins J rejected the claimant’s submission that an asylum claim is made the moment fresh submissions are received by the Home Office. He said:

“21.

…There is a real difference between the situation when an initial claim for asylum is made and that when attempts are made to prevent removal following rejection and the exhaustion of all the appeal processes of that claim. The Secretary of State is indeed entitled to consider whether the representations made can properly be said to amount to a fresh claim so as to make the individual an asylum seeker. He will record that, and the evidence before me is that he does record that, when that preliminary decision is made and that the individual in question is notified when that happens. A record is made of that decision at that time.

22.

I am bound to say that Parliament must have meant something by requiring that the claim be recorded. One would have thought that if all that was meant was that it was received, that would have been said. Normally speaking, that will perhaps make no great difference because no system of sensible administration could work unless every application and every claim were recorded by someone when it was made. The question really turns on whether what was put before the Secretary of State can be said to have amounted to a claim for asylum. For the reasons that I have given, in my judgment, it does require the Secretary of State to decide the initial question as to whether it should be regarded as a claim for asylum before any right to support within section 95 can arise.”

As far as I am aware, this decision has never been questioned by any court. It was followed in R (AW) v London Borough of Croydon [2005] EWHC 2950 (Admin) at [63]-[64]. Moreover Parliament has amended section 94 of IAA and Schedule 3 of NIAA on a number of occasions since the decisions in Nigatu but (until the Immigration Act 2016, as to which see below) it has not amended the definition of “asylum-seeker” for the purposes of those provisions. It can be inferred that Parliament intended the phrase to bear the meaning as decided in Nigatu:see Bennion on Statutory Interpretation (4^th Edition) section 210.

Mr Knafler also sought to rely on the more recent amendments to the definition of “asylum-seeker” in the Immigration Act 2016. That Act has substantially remodelled the system of support for asylum-seekers and failed asylum-seekers. It has amended the definition of “asylum seeker” to add further submissions cases to the existing definition. Mr Knafler submitted that it can be inferred from this that the present definition does not include further submissions cases. The Act has received Royal Assent but these particular amendments have not been brought into force. It is not clear what the significance is of these amendments in construing the existing definition. I note that in R (BA (Nigeria)) v Secretary of State for the Home Department in the Court of Appeal - [2009] EWCA Civ 119; [2009] QB 686 - at [35] Lloyd LJ ignored the contingent presence on the statute book of a new definition of asylum claim which would have put the matter in that case beyond doubt, and on appeal in [2009] UKSC 7, [2010] 1 AC 444, Lord Hope agreed ([26]) on the basis that the amendment was not yet in force. Mr Knafler was unable to find an authority to support his approach to his submission and, in the absence of fuller argument, I do not reach any concluded view as to the relevance of the amendments and I do not rely on them in my analysis.

Mr Knafler’s case is supported by a series of decisions of the Supreme Court, the House of Lords and the Court of Appeal as to whether further submissions which have not been accepted as a fresh claim under paragraph 353 are nonetheless an “asylum claim” or a “human rights claim” for the purpose of Part 5 of NIAA, the provisions concerning rights of appeal against decisions refusing such claims. The key decisions are helpfully explained in the judgment of Jackson LJ in R (Robinson) v Secretary of State for the Home Department [2017] EWCA Civ 316. In particular, the Court of Appeal in ZA (Nigeria) v Secretary of State for the Home Department [2010] EWCA Civ 926; [2011] QB 722 authoritatively explained the Supreme Court’s decision in R (BA(Nigeria)) v Secretary of State for the Home Department [2009] UKSC 7;[2010] 1 AC 444. The position is that, although rule 353 has no role to play once an appealable decision has been made by the Secretary of State, where pursuant to rule 353 the Secretary of State decides that further submissions are not a fresh claim, there is no decision made on a claim and the appeal provisions of Part 5 do not apply. In the latter case, there is no claim and so nothing for the Secretary of State to decide within Part 5. In the light of those decisions Jackson LJ held at [55] that “human rights claim” means “an original human rights claim or a fresh human rights claim which falls within paragraph 353 of the Immigration Rules”. Shortly before the decision in Robinson the Court of Appeal had reached the same conclusion in VM (Jamaica) v Secretary of State for the Home Department [2017] EWCA Civ 255.

Ms Luh submitted that these decisions as to the meaning of “claim” in Part 5 have no bearing on the definition of “asylum-seeker” within Schedule 3 of NIAA. I do not accept this. The definition of “asylum-seeker” in paragraph 17 of Schedule 3 requires the person to have made a claim for asylum within section 18(3). There are no material differences between that definition and the definition in section 113 which applies for the purposes of the appeal provisions. Moreover, paragraph 17(1)(c), (2) and (3) tie the definition of “claim for asylum” to the decision-making processes in Part 5, and would not make sense if “claim” in paragraph 17 meant something different to that in Part 5. Thus, paragraph 17(1)(c) requires the claim not to have been determined. Section 17(2) provides that a claim is determined where the Secretary of State has notified the claimant of his decision and it is either unappealable or any appeal has been disposed of. In the light of the above case law, which establishes that the Secretary of State is not required to make a decision on further submissions which have not been accepted as a fresh claim, there is no possibility of paragraph 17(2) applying to such submissions. Ms Luh has not suggested any sensible basis on which the definition could have a separate meaning in each of the two parts of the Act. In the light of this clear authority, there is no need to consider further Ms Luh’s submission regarding section 3(2) of the Immigration Act 1971 although I make the passing observation that in my view that it relies on a distinction between procedure and substance which does not arise in this context. It is implicit in the Court of Appeal’s acknowledgment of the parties’ positions at [13] of the decision in R (O) v Barking and Dagenham London Borough Council [2010] EWCA Civ 1101; [2011] 1 WLR 1283 at [13] that “asylum-seeker” in Part 5 has the same meaning as in relation to the provisions for asylum support.

I turn then to the second strand of Ms Luh’s submission, in essence that the manner in which the government has transposed the terms of the Reception Directive into UK law now dictates the meaning of “claim for asylum” and “asylum-seeker”. The submission is that the UK is in some way bound by its communication to the Commission of its measures implementing the Reception Directive because this contains a “clear statement” that this was how the UK intends to proceed. For the reasons advanced by Mr Knafler in response, I reject this. It is factually incorrect in that the UK did not say that it intended to treat failed asylum-seekers with further representations on the same basis as asylum-seekers for the purpose of reception conditions. The Explanatory Memorandum made clear that the it did not rely solely on the Reception Regulations for compliance with its obligations under the Reception Directive, and that it relied on existing legislation. In any event, the Transposition Note was not the official communication to the Commission pursuant to article 26 of the Directive. The Commission’s website shows that the UK government had informed the Commission that the whole of the IAA was one of the national measures which it relied on as implementing the Reception Directive, and so this included section 4.

More fundamentally, there is no legal principle which supports the proposition that a Member State’s communication has “special EU legal status” such that as a matter of EU law the court is bound to construe legislation on the basis that the Directive is implemented only through those matters specifically mentioned in the Transposition Note or other communications with the EU. I agree with Mr Knafler’s submission as to this and in particular that the proposition is inconsistent with the fundamental principle that, as a matter of EU law, Member States are free to choose how to achieve the result required by the Reception Directive. This is clear from Marleasing which requires national law to be interpreted so as to achieve the result required by EU law. Moreover Mr Knafler is correct that the Regulations cannot alter the meaning of section 94 of the IAA 1999 and para 17 of Schedule 3 of NIAA, the meaning of which I have addressed above.

Nor can the Transposition Note be read as showing that the government’s intention was as contended for by Ms Luh. On the contrary, the Explanatory Memorandum and Transposition Note clearly state that other existing legislation was relied on in order to comply with the Directive. And for reasons which I explain below, there was and is no inconsistency between the UK’s compliance with its obligations under the Directive and the narrower definition of “asylum-seeker” for which the defendant and the Secretary of State contend.

The underlying problem with Ms Luh’s submission is that it ignores the important words in bold in the citation from Marleasing which I set out at paragraph 26 above. The obligation of Member States is to ensure that their Treaty obligations are fulfilled in the result. It is up to Member States how they do that. It does not matter that the provisions of national law specifically made for asylum-seekers exclude some of those within the scope of the Directive, as long as adequate provision is made within the law, by some means or other, for the rights of all those within the scope of the Directive. This is supported by case law which was relied on by Ms Luh to show the contrary.

The first of these authorities is EN (Serbia) v Secretary of State for the Home Department [2009] EWCA Civ 630, [2010] QB 633. One of the issues addressed by the Court was whether section 72 of NIAA could be interpreted conformably with article 14(4) of the Qualification Directive. For present purposes there is no need to consider the substantive provisions. In holding that it could be so interpreted, Stanley Bunton LJ said this:

“78.…There is no other national instrument implementing article 14(4). The Qualification Regulations 2006 do not include any relevant provision, and I note that the explanatory note to those Regulations stated, at para 1: “Many parts of the Directive do not require implementation as consistent provision is already made in existing domestic legislation.” If section 72 is not construed compatibly with the Directive, this country would be in breach of its obligation to implement it; if it is applied consistently with the Directive, no question of a breach arises. Hence, the Marleasing principle must be applied.”

Two points emerge from this. First, Marleasing applied because there was no other national instrument implementing article 14(4) of the Directive. Second, the Marleasing principle can be satisfied by the interpretation of legislation which was not identified by the Member State as implementing the Directive.

The other case relied on by Ms Luh is R (ZO (Somalia)) v Secretary of State for the Home Department [2010] UKSC 36, [2010] 1 WLR 1948. The claimants’ asylum claims had been refused and their appeals dismissed. They each made fresh submissions. Over a year later, when the Secretary of State had not yet decided whether the submissions constituted fresh claims pursuant to rule 353 the claimants applied for permission to work. The applications were refused. Immigration Rule 360 made provision for an asylum applicant to apply to take up employment after one year, but the Secretary of State’s position was that those Rules did not apply to subsequent applications which were not a fresh claim under Rule 353. Article 11(2) of the Reception Directive required member states to decide the conditions for granting access to the labour market where a decision has not been taken within one year of an application for asylum and the Supreme Court held that “application for asylum” in the Reception Directive includes subsequent applications: paragraph [31]. Therefore the claimants were entitled to permission to work in accordance with the provisions of the Directive.

Ms Luh’s submission was, in essence, that the effect of ZO is that “asylum-seeker”, “asylum claim”, or similar terms in domestic legislation which covers the same ground as the Reception Directive, must be given the same meaning as in that Directive. I reject that submission. The issue in the Supreme Court was not the application of the Marleasing principle but the interpretation of “asylum seeker” within the Directive. As the claimants were asylum seekers within the scope of the Directive they were entitled to the benefit of its provisions. There does not seem to have been an issue in the Supreme Court regarding giving effect to that entitlement in domestic law, although it seems (in particular from the headnote of the report of the Court of Appeal’s judgment at [2009] 1 WLR 2477) that it was accepted that the decision as to the scope of the Directive meant that “asylum-seeker” in rule 360 should be read accordingly. Rule 360 was the only provision in domestic law for giving effect to article 14 and so a compatible interpretation of rule 360 was necessary pursuant to Marleasing. ZO is not authority generally for construing “asylum-seeker” in domestic legislation compatibly with the definition in the Directive.

Both the above authorities are consistent with the obligations of Member States being to achieve the result required by directly effective EU law. Article 288 of the Treaty on the Functioning of the European Union provides:

“A directive shall be binding, as to the result to be achieved, upon each Member State to which it is address but shall leave to the national authorities the choice of form and methods.”

Neither EU law nor the European Communities Act is concerned with the means by which this is achieved. It follows that I agree with Mr Knafler that Marleasing requires “asylum-seeker” in schedule 3 of NIAA to be construed congruently with the meaning of that term in the Directive only if it is necessary to do so in order to achieve the result required by the Directive, namely the minimum reception conditions.

The short answer in the present case as to whether Marleasing has any role to play is that it does not because the local authority has assessed the claimant and concluded that he is not destitute. His basic needs are being met. That assessment by the local authority is not challenged by the claimant. In R (Sanneh) v Secretary of State for Work and Pensions and others [2013] EWHC 793 (Admin), the issue was whether support available to the claimant and her child under section 17 of the Children Act 1989 was relevant to whether the child’s rights under EU law were jeopardised. Hickinbottom J said:

“100.

As a matter of principle, EU law creates rights, but it is left to member states as to how those rights should be made effective and effectively protected within their territory. It would be remarkable if the European Court had laid down a particular way adequately to protect the right of residence of a minor with no EU ascendant carer relatives, which each member state would be bound to implement. That is simply not how the EU works.”

Hickinbottom J held, at [101] – [103], that EU law was simply not engaged where provision under domestic legislation was as a matter of fact sufficient to protect the claimant’s EU rights. Similarly, in the present circumstances of the claimant here, the Reception Directive does not call for any further provision to be made.

Mr Knafler said that, in any event, even if the claimant was destitute or becomes destitute in the future, he would be provided with support pursuant to section 4 of IAA and this satisfies the minimum standards required by the Reception Directive. Ms Luh did not argue to the contrary, and I explain briefly why I consider that she was right not to do so.

A failed asylum-seeker who is excluded from the support listed in paragraph 1(1) of Schedule 3 of NIAA (unless the support is necessary to avoid a breach of their Convention or EU Treaty rights) and from support under section 95 of IAA, may receive assistance under section 4 of IAA. Regulation 3 of the Immigration and Asylum (Provision of Accommodation for Failed Asylum-Seekers) Regulations 2005 (‘the Failed Asylum-Seekers Regulations’) sets out the criteria for such support. It provides for “facilities for accommodation”, which will comprise non-cash support (such as board or vouchers) as well as accommodation. It is clearly less extensive than the support which would be available from local authorities under the provisions listed in paragraph 1(1) of Schedule 3 of NIAA, but there is an obligation to provide section 4 support where necessary to avoid a breach of Convention rights and it is sufficient to discharge the obligations of the Secretary of State under the ECHR: Nigatuat [20]. Section 4 support is also sufficient to satisfy the minimum standards required under the Reception Directive, which are, as Lord Kerr described in ZO [31], “no more than the minimum to permit [an asylum seeker] to live with some measure of dignity”. If support is sufficient to satisfy a person’s Convention rights, it will also satisfy those minimum standards.

Regulation 3(2)(e) of the Failed Asylum-Seekers Regulations provides for section 4 support where it is necessary to avoid a breach of Convention rights. The Home Office’s guidance “Asylum support, section 4(2): policy and process” states, at page 13, that support may be required where a person who is destitute has made further submissions which remain outstanding. The Secretary of State can be expected to adhere to the guidance unless there is a good reason not to do so. Moreover, the position set out in the guidance properly reflects the Secretary of State’s legal duty to provide support so that they are not “forced to give up what may be a genuine fresh claim in the face of destitution”: see R (AW) v LB Croydon [2005] EWHC 1950 (Admin) at [68]-[69].

The guidance also provides that support should be refused where “the further submissions are clearly abusive, manifestly unfounded or repetitious”, and that in practice such a decision will be made at the same time as the further submissions are rejected. Thus at the time of refusal of support for that reason, the person will have ceased to be an asylum-seeker within the Reception Directive.

The implementation of obligations under the Reception Directive relating to families, minors or those with special needs have not arisen in these proceedings but I note that support or assistance listed in paragraph 1 of Schedule 3 of NIAA remains available to a failed asylum seeker where necessary in order to avoid a breach of the person’s rights under the Convention or EU Treaties (which includes their rights under the Reception Directive): paragraph 3 of Schedule 3.

The meaning of “asylum-seeker” in Schedule 3 of NIAA is clearly established by case law. It does not include a failed asylum-seeker who has made further submissions which have not yet been accepted by the Secretary of State as a fresh claim. Support available to failed asylum seekers under domestic legislation, in particular by way of section 4 of IAA and paragraph 3 of Schedule 3 of NIAA, satisfies the UK’s minimum obligations to such persons under the Reception Directive (at least as regards the general rules rather than those relating to specific categories of person and needs which do not arise for consideration in this case) and so it is not necessary to interpret “asylum-seeker” in Schedule 3 of NIAA so as to include someone in the claimant’s position.

Therefore this application for judicial review is refused.