Hostile and inept: the government’s approach to asylum support

Abstract

Under section 95 of the Immigration and Asylum Act 1999 (IAA 1999), the Government are obliged to provide support and accommodation to asylum seekers who would otherwise be destitute. This responsibility stems from the EU Reception Conditions Directive (2003/9/EC; recast as Directive 2013/33/EU) – which remains ‘retained law’ – the Charter of Fundamental Rights of the European Union and Article 3 of the ECHR, to prevent inhuman and degrading treatment, where work exclusions apply (R (Refugee Action) v SSHD [2014] EWHC 1033 (Admin); R (on the application of Limbuela) v SSHD (2006) 1 AC 396). Restrictions on working mean that welfare support is necessary because once forced migrants arrive in the UK, they are effectively trapped: they cannot return to their countries of origin for fear of persecution and can no longer be returned to other transitional countries in Europe following Brexit and the UK’s withdrawal from the Dublin Regulation. Asylum seekers are thereby at the mercy of the UK Government who over the last three decades have overseen the slow degradation of their living standards (Bales 2013, Mayblin 2017, 2019). The claimant in R (on the application of CB) v SSHD [2022] EWHC 3329 (Admin) challenged s.95 support levels on two grounds. Firstly, the lawfulness of an uprating decision made by the Secretary of State for the Home Department (SSHD) in November 2021 which changed the methodology for calculating the cost of essential living needs for asylum seekers, bringing the expected uprating down from £41.76 to £40.85 per week (up from the base rate of £39.63). Secondly, the lawfulness of the SSHD’s failure to reconsider or review the rate of asylum support since the uprating was implemented on 21 February 2022. In a progressive judgment that carefully treads constitutional boundaries, Fordham J makes clear that the SSHD failed in upholding their statutory duty to provide for the essential living needs of asylum seekers and neglected careful consideration of the amount needed to cover such costs. This finding is perhaps unsurprising taking into account the increasingly hostile environment imposed upon forced migrants within the UK, and the pending ‘Illegal Migration Bill’ which is an affront to the right to asylum. The claimant was a 32-year-old Nigerian national who arrived in the UK in April 2021 alongside her three children aged 6, 7 and 8, the eldest of whom has cerebral palsy and