About this case:

• Citation:
  [2023] NIKB 28
• Judgment:
  External link
• Court:
  NI High Court
• Judge:
  Mr Justice David Scoffield

Background

The applicant was an asylum seeker who arrived in Belfast in July 2022 and claimed asylum in the United Kingdom. Section 95(1) of the Immigration and Asylum Act 1999 provides for support to asylum seekers who are considered to be destitute. The SSHD determined the applicant to be destitute, entitling her to a weekly subsistence allowance of £8.24.

The applicant was presently being paid the appropriate allowance, but alleged that the respondent failed to pay her essential living expenses from August to October 2022. She argued that this violated her rights under the European Convention on Human Rights and claimed that this failure, and the breaches caused by the system operating it, was of public importance to asylum seekers generally.

She sought an order requiring “the urgent payment of all her essential monies/living expenses owed to her”, claiming that the monies owed had not been credited to her account at the time.

The proposed respondent claimed that there had been no Home Office failure. The payments were now up to date, and therefore it was argued that this case was now academic. A point of contention was whether the money due to the applicant had ever been deprived or delayed. Further, the court was only concerned with the payment of the allowance, not its adequacy.

The applicant accepted that the two-month allowance had since been paid to her, but argued that there was nonetheless a breach of the obligations owed towards her. The effect of the delayed payment caused her to suffer a variety of indignities, and affected her ability to purchase medication, sanitary products and bus fares.

The proposed respondent’s case

The SSHD accepted that, in relation to the allowance, “she has every right to expect that she will receive it and be able to use it”. However, they did not accept that they were responsible for any claims that she did not receive, or could not access, the payments.

They argued that a financial statement showed that the sums were paid at the correct time, and noted that there may have been an issue with her payment card or a particular ATM.

The respondent contended that leave to apply for judicial review should be refused on the basis that the claim was now academic, and given the likely cost of the proceedings, compared to the limited amount at stake.

Consideration

The applicant argued that not having access to her allowance for a period of nearly two months arose “by way of poor service and administration of the scheme by the proposed respondent and her servants and agents”.

The court found this position difficult to assess, given that the respondent appeared to provide evidence that the appropriate payments were made at the correct time. However, the court equally believed that the applicant would not likely have gone without the basic items that she desperately needed if she had access to the funds to purchase them.

Ultimately, the court found that the case was academic, as between the parties, because there was no present dispute as to her payments — it only related to the complaint about the previous delays. As such, the court refused leave to apply for judicial review.

The judge found that this matter would require factual investigation and fact-finding “to which the judicial review process is ill suited”. The court was also reluctant to put the proposed respondent to the expense of defending judicial review proceedings, when the claim could and should have been pursued in another way.

However, the court accepted that if the applicant was unlawfully deprived of the payments due for the two month period, then “it is arguable that this gives rise to liability on the part of the proposed respondent to pay compensation for a breach of duty”.

As such, rather than simply dismissing the application, the judge exercised his power under RCJ Order 53, rule 9(5), to order the proceedings to continue as if they had begun by writ.

Finally, the court considered whether this case was of general public importance to asylum seekers generally. The court accepted that NGOs, such as Migrant Help, have encountered problems with the Home Office and its payments system.

The applicant contended that “the current system is in disarray”, and that complaints of this nature had been raised with the Home Office previously, but that nothing had changed.

She argued, therefore, that vulnerable asylum seekers such as her have no recourse but to the courts. However, the court ultimately found that, nonetheless, these proceedings were still academic as between the parties involved.

The judge explained: “I do not propose to permit the present application to proceed on some wider basis in order to investigate what the applicant has described as ‘multiple examples of the proposed respondent’s breaches regarding asylum support payments to asylum seekers’. It seems to me that what the applicant is inviting by means of the second limb of her reformulated challenge is akin to a miniature public inquiry”.

The judge determined that this was not the proper function of the court exercising its supervisory jurisdiction, and found that the types of complaints discussed related to the practical operation of the system, rather than raising issues of public law.

Conclusion

The court accepted that “for asylum seekers such as the applicant, every penny makes a difference”. The judge also emphasised that asylum seekers are excluded from most social security benefits and are ordinarily prohibited from working while awaiting a decision on their asylum claim.

The court declined the applicant leave to apply for judicial review. However, it did order that her claim, relating to the complaint that she was wrongly deprived of asylum support for a period of 59 days, will continue as if it had begun by writ, which will allow the factual issues still in dispute to be determined in a proper forum, if necessary.