UK - R (on the application of SG) v Secretary of State for the Home Department, also known as R (on the application of K) v Secretary of State for the Home Department, 22 June 2017

Country of Decision:
Country of Applicant:
Date of Decision:
22-06-2017
Citation:
R (on the application of SG) v Secretary of State for the Home Department [2017] EWCA Civ 433
Additional Citation:
Also known as R (on the application of K) v Secretary of State for the Home Department [2017] EWCA Civ 433
Court Name:
Court of Appeal, Civil Division- Lady Justice Hallett, Lord Justice Gross and Lord Justice Irwin
Relevant Legislative Provisions:
International Law > UN Convention on the Rights of the Child
European Union Law > EN - Charter of Fundamental Rights of the European Union > Article 1
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms > Article 8
European Union Law > EN - Charter of Fundamental Rights of the European Union > Article 18
European Union Law > EN - Reception Conditions Directive, Directive 2003/9/EC of 27 January 2003 > Recital (5)
European Union Law > EN - Reception Conditions Directive, Directive 2003/9/EC of 27 January 2003 > Recital (7)
European Union Law > EN - Charter of Fundamental Rights of the European Union > Article 21
European Union Law > EN - Charter of Fundamental Rights of the European Union > Article 24
European Union Law > EN - Reception Conditions Directive, Directive 2003/9/EC of 27 January 2003 > Article 1
European Union Law > EN - Recast Reception Conditions Directive, Directive 2013/33/EU of 26 June 2013 > Recital (9)
European Union Law > EN - Recast Reception Conditions Directive, Directive 2013/33/EU of 26 June 2013 > Recital (11)
European Union Law > EN - Recast Reception Conditions Directive, Directive 2013/33/EU of 26 June 2013 > Recital (24)
European Union Law > EN - Recast Reception Conditions Directive, Directive 2013/33/EU of 26 June 2013 > Recital (35)
European Union Law > EN - Recast Reception Conditions Directive, Directive 2013/33/EU of 26 June 2013 > Article 1
European Union Law > EN - Reception Conditions Directive, Directive 2003/9/EC of 27 January 2003 > Article 13
European Union Law > EN - Recast Reception Conditions Directive, Directive 2013/33/EU of 26 June 2013 > Article 17
European Union Law > EN - Reception Conditions Directive, Directive 2003/9/EC of 27 January 2003 > Article 17
European Union Law > EN - Reception Conditions Directive, Directive 2003/9/EC of 27 January 2003 > Article 18
European Union Law > EN - Recast Reception Conditions Directive, Directive 2013/33/EU of 26 June 2013 > Article 21
European Union Law > EN - Recast Reception Conditions Directive, Directive 2013/33/EU of 26 June 2013 > Article 22
European Union Law > EN - Recast Reception Conditions Directive, Directive 2013/33/EU of 26 June 2013 > Article 23
European Union Law > EN - Recast Reception Conditions Directive, Directive 2013/33/EU of 26 June 2013 > Article 29
European Union Law > EN - Reception Conditions Directive, Directive 2003/9/EC of 27 January 2003 > Article 24 > 2.
National / Other Legislative Provisions:
UK - Borders
Citizenship and Immigration Act 2009
section 55
UK - Children Act 2004
section 11
UK - Immigration and Asylum Act 1999
sections 95
96
115
122
UK - Asylum Support Regulations 2000
regulations 9(3)
9(4)
10(2)
10A(1)
UK - Asylum Support (Amendment No. 3) Regulations 2015
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Headnote: 

The reduction in the financial allowance available to child dependants of asylum seekers was not contrary to the requirement that the best interests of the child be a primary consideration in all actions concerning children.

Facts: 

The applicant Burundian asylum seeker was a single parent of three dependent children aged 2, 4 and 10.  She first entered the UK in 2004; her first asylum claim was refused and she made a fresh claim for asylum in 2010. She was in receipt of asylum support by way of a financial allowance since 2011. In 2015, a team at the Home Office, led by a Mr Bentley, conducted a review of the weekly asylum support payable to child dependants of asylum seekers (the Bentley review) and, based on this review, the Government reduced that support from £52.96 to £36.95. The applicant challenged this decision in the High Court. Her challenge was dismissed and she applied to the Court of Appeal for permission to appeal.

Decision & Reasoning: 

1. The language of the relevant domestic and EU legislation (the Immigration and Asylum Act 1999 and the Reception Conditions Directive 2003 (RCD)) point to the Government being obliged to provide for the subsistence of children rather than their welfare, notably articles 13.2 and 17 RCD.

2. In relation to the best interests of the child, article 24.2 of the Charter of Fundamental Rights of the European Union (CFREU) provides for this to be a primary consideration, but so too does article 18 RCD. The CFREU therefore takes matters no further than the RCD; and article 18 RCD, combined with articles 13.2 and 17 RCD, continues to point to a subsistence rather than a welfare level of support. The UN Convention on the Rights of the Child, apart from article 3, is not incorporated into UK law and, in any event, takes matters no further. Nor are matters taken any further by section 55 of the Borders, Citizenship and Immigration Act 2009 (which provides for the Secretary of State for the Home Department to discharge her functions in relation to immigration, asylum or nationality having regard to the need to safeguard and promote the welfare of children who are in the UK) or the accompanying statutory guidance ‘Every Child Matters’.

3. It was reasonable for the Government to conclude that the previous amount of asylum support payable to child dependants of asylum seekers was in excess of the level required by the RCD, based on the Bentley review’s reasoning that ‘economies of scale’ were available to such families. The Bentley review had had regard to the best interests of the child as a primary consideration. It was not necessary for a two-stage approach to be adopted, whereby the child’s best interests were considered first; rather the child’s best interests could be considered as part of a holistic analysis. The Government had complied with the UN Committee on the Rights of the Child’s interpretation of the child’s best interests as a threefold concept: a substantive right, an interpretative principle and a rule of procedure. It was compatible with the RCD and within the Government’s province to exclude recreation and toys from the essential living needs for which it provided asylum support, as it only needed to comply with a subsistence standard and as there was a range of support available for free, although the Court regretted the exclusion of toys.

4. Article 8 ECHR takes matters no further.

5. Provided that the Executive has complied with the RCD and not acted irrationally or unreasonably, the assessment of whether something is an essential living need or not is a matter for the Executive and not for the Judiciary.

As a postscript, the Court observed that the delay in dealing with the applicant’s case was deeply unsatisfactory and of real concern.

Outcome: 

Permission to appeal refused.

Observations/Comments: 

The decision of Flaux J in R (on the application of SG) v Secretary of State for the Home Department  [2016] EWHC 2639 (Admin) was upheld.

This case summary was written by Alice Winstanley,  LLM student in Immigration Law at Queen Mary's University.

Other sources cited: 

‘The Bentley Review’

UK Border Agency and Department for Children, Schools and Families, Every Child Matters: Change for Children: Statutory guidance to the UK Border Agency on making arrangements to safeguard and promote the welfare of children: Issued under section 55 of the Borders, Citizenship and Immigration Act 2009 (Office of the Children’s Champion, November 2009)

UN Committee on the Rights of the Child, ‘General comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (art. 3 para. 1)’ (29 May 2013) UN Doc CRC/C/GC/14

Case Law Cited: 

UK - Mathieson – v – Secretary of State for Work and Pensions [2015] UKSC 47

UK - Zoumbas – v – Secretary of State for the Home Department [2013] 1 WLR 3690

UK - ZH (Tanzania) – v – Secretary of State for the Home Department [2011] 2 AC 166

UK - Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223

UK - H (H) – v – Deputy Prosecutor of the Italian Republic [2013] 1 AC 338

UK - Poshteh v Kensington and Chelsea RLBC [2017] UKSC 36, [2017] 2 WLR 1417

UK - R (on the application of SG) v Secretary of State for the Home Department [2016] EWHC 2639 (Admin)

R (on the application of Refugee Action) v Secretary of State for the Home Department [2014] EWHC 1033 (Admin)

UK - R (on the application of JS) v Secretary of State for Work and Pensions [2015] UKSC 16, [2015] 1 WLR 1449

UK - R (on the application of Westminster City Council) v National Asylum Support Service [2002] UKHL 38, [2002] 1 WLR 2956