Mr Justice Stanley Burnton :
Introduction
- These cases are concerned with the so-called "hard cases" support for failed asylum seekers. The Claimants seek judicial review of the practice of the Home Secretary not to inform failed asylum seekers who may be eligible for hard cases support of the availability of such support, and of his delay in providing such support to those who qualify for it.
- These claims were begun in order to obtain accommodation and support for the Claimants, who are both failed asylum seekers. The proceedings were successful, in that the Secretary of State is providing them with accommodation and support, but permission was given to allow the Claimants to argue that the general practice of the Home Secretary in relation to persons such as themselves is unlawful.
Asylum support: (a) under Part VI of the Immigration and Asylum Act 1999
- The provision of support for asylum seekers must be considered against the background of the invariable practice of the Secretary of State to prohibit them from working for gain. If they have no independent means and are unable to rely on family or friends in this country, they cannot lawfully support themselves.
- The principal provisions for the support of asylum seekers are contained in Part VI of the Immigration and Asylum Act 1999, sections 94 to 127. Section 95 empowers (but does not in terms require) the Secretary of State to provide or arrange for the provision of support for asylum seekers and their dependants "who appear to the Secretary of State to be destitute or to be likely to become destitute within such period as may be prescribed". That period is 14 days. By section 95(3):
"… a person is destitute if—
(a) he does not have adequate accommodation or any means of obtaining it (whether or not his other essential living needs are met); or
(b) he has adequate accommodation or the means of obtaining it, but cannot meet his other essential living needs."
- "Asylum seeker" is defined by section 94(1) as "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". Section 94(3) provides that
"… a claim for asylum is determined at the end of such period beginning-
(a) on the day on which the Secretary of State notifies the claimant of his decision on the claim, or
(b) if the claimant has appealed against the Secretary of State's decision, on the day on which the appeal is disposed of,
as may be prescribed."
Where the claim for asylum fails and the claimant is not given leave to remain in the United Kingdom, the prescribed period is 21 days.
- In R (Westminster City Council) v National Asylum Support Service [2002] UKHL 38, [2002] 1 WLR 2956, the House of Lords considered the respective responsibilities of the Secretary of State and local authorities for the support of destitute asylum seekers. The present Claimants were previously destitute asylum seekers who, being able-bodied, were the responsibility of the Home Secretary (who acts through the National Asylum Support Service, referred to as NASS) rather than local authorities. In the Westminster case, the House of Lords confirmed that the Secretary of State's power to provide support for asylum seekers under Part VI of the 1999 Act is a residual power: see paragraph 38 of the speech of Lord Hoffman at [2002] 1 WLR 2966. It is also a power to be exercised in cases of last resort, where the asylum seeker has no other means of obtaining accommodation or his essential living needs: see the above definition of "destitute".
Asylum support: hard cases
- Support provided by NASS under Part VI must come to an end 21 days after a claim for asylum has been rejected by the Secretary of State or on appeal. However, section 4 of the 1999 Act as amended confers a further power on the Secretary of State to support those who have entered this country as asylum seekers:
"(1) The Secretary of State may provide, or arrange the provision of, facilities for the accommodation of persons –
(a) temporarily admitted to the United Kingdom under paragraph 21 of Schedule 2 to the [Immigration Act 1971];
(b) released from detention under that paragraph; or
(c) released on bail from detention under any provision of the Immigration Acts.
(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."
Accommodation provided under section 4 is commonly referred to as "hard cases support". There is, however, a contrast between the wording of section 4, which refers to facilities for accommodation, and that of Part VI of the Act, which in section 96 specifies the support that may be provided under that Part, and makes it clear that it may include, in addition to accommodation, provision for essential living needs. The accommodation arranged by the Secretary of State under section 4 includes full board, but no cash or vouchers. It has been asserted in correspondence that the Secretary of State should provide cash or vouchers to enable those receiving hard cases support to meet their essential personal expenses, such as the replacement of clothing. Mr Giffin QC submitted that the power conferred by section 4 does not extend to the provision of cash or vouchers. His submission seems to me to be correct; but there is no issue before me as to the scope of permissible provision under section 4, and I say no more about it.
- Asylum seekers whose claims to remain in this country are rejected are expected, at least in theory, to return to their country of origin. There is generally no reason why they cannot do so, although experience shows that they do not wish to do so and that many do not in fact do so. But some cannot return to their home country, or cannot reasonably be expected to do so. The Home Secretary has power, under section 4(2) of the 1999 Act, to provide or to arrange for the provision of accommodation for such persons. He has adopted a policy for the exercise of that power. The policy is to restrict hard cases support to persons who cannot travel because of a physical impediment (such as illness or late pregnancy) or whose cases are otherwise exceptional, provided they fulfil stringent conditions relating to their need for support.
- Many Iraqi Kurds, from Northern Iraq, have sought asylum in this country. Because northern Iraq was outside the control of the government of Saddam Hussein, many, if not most, were unable to show that they had a well-founded fear of persecution there, and their asylum claims were rejected (as were any claims under the European Convention on Human Rights). However, there was no available route by which the Home Secretary could return them to northern Iraq, and he accepted that they could not reasonably be expected to find a way back on their own. (Indeed, despite the downfall of the Saddam Hussein regime, the position has not yet changed.) Since they are prohibited from working in this country, and many have no means of support, it was necessary for the Home Secretary to consider whether they were to be supported after the rejection of their asylum claims. By letter dated 1 October 2001, the Home Secretary informed the Chief Executive of Migrant Helpline that:
"… it has been decided to amend the criteria for support which may be provided under section 4 of the Immigration and Asylum Act 1999 ("hard case support").
….
It has been decided that those Iraqis, who have had asylum claims finally determined and are unable to return to northern Iraq because a route has not yet been identified, may be considered to have exceptional circumstances for the purposes of the hard case criteria. Qualification for hard case support for such Iraqis will also be dependent upon the person signing an undertaking that once a safe route to northern Iraq has been identified they will take all reasonable steps to leave the United Kingdom and will, in any event, co-operate with efforts to remove them to northern Iraq made by, or on behalf of, the Secretary of State.
Other cases will continue to be considered on their merits.
Applications for hard case support may be made in writing to … Telephone …"
It may well be that similar letters were sent to other refugee organisations, but other letters are not in evidence.
- In November 2001 eligibility was extended to persons who had applied for judicial review of the decision rejecting their asylum claim whose cases were considered by the Secretary of State not to be wholly unmeritorious. That modification to his policy was notified to the Chief Executive of the Refugee Council by letter dated 21 November 2001. The enclosed revised criteria for hard cases support were as follows:
"A person may be provided with support under section 4 of the Immigration and Asylum Act 1999 ("the Act") if
- His/her claim for asylum has been determined (within the meaning of Part VI of the Act);
- He/she has been supported by the National Asylum Support Service or by a local authority under Schedule 9 to the Act;
- He/she is no longer an asylum seeker within the meaning of Part VI of the Act;
- He/she appears to be destitute within the meaning of Part VI of the Act; and
- He/she has no other avenue of support.
Each case will be considered on its merits, but support will not normally be made available to a person unless:
- He/she is unable to leave the United Kingdom by reason of a physical impediment to travel e.g. through illness or late pregnancy, or
- The circumstances of the case are exceptional; and
- He/she is taking all reasonable steps to leave the United Kingdom and, in any event, is complying fully with the efforts to remove him/her.
- Support may also be provided if it is clear that an eligible person has been granted permission for judicial review of any determination in respect of his/her application for asylum or has made an application for permission to apply for judicial review and the application does not appear to the Secretary of State wholly unmeritorious.
Support under section 4 of the Act will be basic full board accommodation normally outside of London and those supported may be required to subject themselves to regular monthly reviews and, other than in cases where judicial proceedings are outstanding, be able to show that they are taking all reasonable steps to leave the United Kingdom and in any event are complying fully with efforts to remove them."
- The Home Secretary subsequently decided to abandon the requirement on Iraqi Kurds to sign a declaration of co-operation. This change of policy was confirmed in a letter to the Community Law Partnership ("CLP"), who have acted for claimants in earlier proceedings, and who act for the present claimants.
The facts of the present cases: (a) Salih
- Mr Salih ("S") was born on 10 August 1960. He is a Kurd from Northern Iraq. He entered the United Kingdom on 20 September 2000 and claimed asylum. He was provided with accommodation under section 98 of the 1999 Act (temporary accommodation pending NASS decision on accommodation) by Migrant Helpline, a NASS agent. On 18 October 2000, NASS began to support him under section 95 of the 1999 Act (accommodation pending decision on asylum claim and appeal) on the basis that he was a destitute asylum-seeker. He was provided with accommodation and essential living needs at 8 Fashoda Road, Birmingham, a privately run house for asylum seekers.
- On 9 January 2001, the Immigration and Nationality Directorate of the Home Office ("the IND") rejected his asylum claim and certified it under paragraph 9(4)(a) of Schedule 4 to the 1999 Act. On 15 February 2001, his temporary admission to the United Kingdom was extended subject to restrictions that he resided at 8 Fashoda Road, reported to a police station monthly, and did not work. He appealed to an Adjudicator, who rejected his appeal in a determination promulgated on 1 November 2001, principally on the ground that his claims were incredible, and upheld the Home Secretary's certificate. S nonetheless continued to be accommodated at 8 Fashoda Road and to receive support under Part VI. On 14 October 2002, he received his last payment of support under section 95. On the following day, NASS wrote to him stating that as a result of the final rejection of his application for asylum he no longer qualified for support under section 95 of the 1999 Act. Their letter stated:
"The support you have been provided with is to be discontinued. Support is provided for a period of 21 days following the notification of the resolution of your asylum claim, which is deemed to be received 2 days following the determination of your asylum application. Our records show that your claim for asylum was determined on the 19 Nov. 2001, therefore the period of support ended/ends on 10 Dec. 2001.
You will be allowed to stay in the accommodation until 25 Oct. 2002, which should be seven days from receipt of this letter, when you will be expected to leave.
…
You should note that there is no right to appeal against this decision under section 103 of the Immigration and Asylum Act 1999.
…
You must now leave the United Kingdom. Help and advice on returning home can be obtained from the Immigration Office dealing with this case or the Immigration Service on (telephone number)….
Alternatively help and advice for asylum seekers and those whose asylum claim has been refused who wish to return home voluntarily can be obtained from the International Organisation for Migration at …
Your nearest One-Stop Service is The Refugee Council …"
The letter gave the address and telephone number of the Refugee Council. The emphasis is in the original. As can be seen, the letter made no mention of hard cases support.
- On 17 October 2002, the proprietor of 8 Fashoda Road gave S notice to quit on 25 October 2002. However, he did not leave, and was not evicted from his room. He had no income after 14 October 2002.
- S was unaware of the possibility of applying for hard cases support. However, on 18 October 2002, an interpreter contacted the CLP on his behalf, and the earliest available appointment was made for him for 23 October 2002. CLP, whose offices are in Birmingham, agreed to act for him, and on 24 October 2002 they applied in writing, by fax and letter, to NASS on his behalf for hard cases support.
- By 1 November 2002, S's solicitors had received no reply. CLP sent a further letter, stating that if no reply was received by 8 November 2002, they would take instructions on judicial review. NASS replied by letter dated 4 November 2002, stating that S's application was receiving consideration. No substantive decision had been received from NASS by 13 November 2002, when CLP wrote again. Their letter of that date, sent by fax, pointed out that NASS's letter of 4 November 2002 had not identified any matters that required further consideration in order for it to be able to decide whether to grant support under section 4. The letter threatened judicial review unless by 15 November 2002 the Home Secretary granted S exceptional leave to remain or determined his application for support under section 4 and granted such support. No substantive response was received on 15 November 2002.
- On 22 November 2002, NASS faxed a letter to CLP enclosing an acceptance slip to be signed by S stating that he agreed to accept the terms set out in that letter of the section 4 support offered to him. The letter stated:
"Accommodation is provided on a 'no choice' basis and there is no entitlement to financial support for those provided with accommodation under this section. Where accommodation is provided this will most usually be on a full board basis. Unless the Secretary of State is satisfied that the circumstances are wholly overwhelming or compassionate this accommodation will be provided away from London and the Southeast and there is no guarantee that you will be provided with accommodation in or near your current location."
- CLP returned the acceptance slip signed by S under cover of their letter dated 29 November 2002, in which they complained of the delay in dealing with S's application for support. They stated:
"Thus, if our client is found to be eligible for such support, he is need of urgent help. It is wholly inconsistent with the exercise of NASS' power to provide support under s4 of the 1999 Act for there to be any delay between the decision to provide support and the actual availability of that support to our client.
It follows that upon determination of his needs, NASS must be able to provide our client immediately with accommodation. That is not difficult. NASS already has the facility to book accommodation on the spot. There is in our experience a ready availability of accommodation at NASS' disposal locally in Birmingham.
Further, we are not aware of any reason as to why NASS could not continue to accommodate our client at 8 Fashoda Road, Birmingham, at which address he remains, and where he has previously been provided with accommodation and subsistence by NASS over the period of more than two years."
- They also complained that, since there was no current prospect of S being able to return to Iraq, the provision of board and lodging, without means to buy replacement clothing or to meet personal expenditure, could not be appropriate. They added:
"Our client simply cannot wait for another week or more before arrangements are put in place for NASS to support him."
- In the absence of any further communication from NASS, judicial review proceedings were commenced on 5 December 2002. In his witness statement of that date, S stated:
"11. I have only been able to survive by begging others in the house for food. It is difficult and stressful. The others cannot afford to support me. I cannot get enough to eat. My diet is very poor.
12. I feel degraded by my situation. I am desperate for support."
- On 13 December 2002, the Treasury Solicitor sent a fax to CLP stating that accommodation would be provided under section 4 and a food parcel. On 16 December 2002, the Treasury Solicitor sent faxes to CLP setting out travel arrangements for S to travel to Leicester YMCA on, as finally fixed, 19 December 2002. S duly went to reside at Leicester YMCA on the date so fixed.
- Eight weeks had elapsed between S's application for support and its provision.
(b) Rahmani
- Mr Rahmani ("R") was born in May 1974. He is a citizen of Iran. He claimed asylum on his arrival in the United Kingdom on 19 January 2001. He was provided with accommodation and support under section 98 and then section 95 of the 1999 Act. IND refused his asylum claim on 30 May 2001 and certified it under paragraph 9(4)(b) of schedule 4 to the 1999 Act. R appealed. The Adjudicator dismissed his appeal and upheld the certificate in a determination promulgated on 24 January 2002. R commenced proceedings for judicial review of the Adjudicator's decision. Permission to apply for judicial review was initially refused on paper, but granted by the Court of Appeal on 24 October 2002. On 24 December 2002, an Immigration Officer extended his temporary admission, imposing conditions similar to those of S, including a prohibition on his working. By letter dated 2 January 2003, NASS informed R that, as a result of the determination of his asylum appeal, the period of support under section 95 had ended on 14 February 2002; it required him to leave his accommodation on 13 January 2003, and stated that his last payment of support would be on 6 January 2003. The letter was in the same terms as NASS's letter to S dated 15 October 2002. As in the case of S, no mention was made of the possibility of his applying for hard cases support.
- On 9 January 2003 R went to see the solicitors acting for him in relation to his application for asylum. They referred him to CLP, who by letter of that date sought support for him under section 4 on the basis that:
"1. His claim for asylum has been determined (within the meaning of Part VI of the Act);
2. He is no longer an asylum seeker within the meaning of Part VI;
3. He has previously been supported by the National Asylum Support Service;
4. He is left destitute by the withdrawal of support under section 95 of the 1999 Act;
5. (R) has no permission to work in the UK and no other avenue of support.
It is the Secretary of State's published policy (under the 'hard cases' scheme) to provide support under s.4 where a person who is eligible for such support has been granted permission for judicial review of a determination in respect of his / her application for asylum.
6. Our client has such permission. …"
- On the following day, CLP threatened judicial review. Proceedings were commenced on 20 January 2003. Interim relief was granted on 22 January 2003, requiring the Home Secretary to provide R with accommodation and support. On the same date, NASS faxed a letter to CLP in the same terms as the letter in respect of S dated 22 November 2002 enclosing a similar acceptance slip. On 24 January 2003, CLP sent a fax to the Treasury Solicitor asking whether NASS would comply with the order for interim relief. On 27 January, CLP informed the Treasury Solicitor that they intended to apply to enforce that order. On 28 January, there was an exchange of faxes, which resulted in accommodation being made available to R at Wimbledon YMCA. He took up that accommodation on 30 January 2003.
- The period between R's application for support and its provision was 3 weeks.
Other evidence
- In his first witness statement, dated 5 December 2002, Timothy Shotton, the solicitor employed by CLP responsible for these cases, pointed out that NASS had accommodated S as a destitute asylum seeker since 18 October 2000, and would have had on file his nationality and ethnic origin. NASS knew that his asylum claim had been finally dismissed. He contended that NASS therefore knew, when it sent the letter of 15 October 2002 withdrawing asylum support under section 95, that S qualified for support under section 4. He therefore questioned why that letter was sent without an offer of support under section 4 or notification of the existence of a hard cases scheme and how an application for support under it might be made. Mr Shotton's witness statement ended:
"I am frequently asked to advise Kurdish Iraqis who have been refused asylum in the UK and whose asylum appeals have been dismissed. Nearly all such clients were previously supported by NASS as destitute asylum seekers. Very few of my clients are aware of the existence of the hard cases scheme. Those who are aware of the existence of the scheme, are usually unaware of how to claim s 4 support. As a result, people may be left for weeks or even months without any form of support."
- The evidence of the Secretary of State at the hearing of these applications consisted of the witness statement of John Allen, a Senior Caseworker in NASS, dated 16 May 2003. He stated that the majority of persons supported under section 4 are accommodated by the YMCA, which has a standing arrangement with NASS that enables accommodation to be arranged at short notice. Mr Allen stated that it is not the practice to accommodate persons who were supported under section 4 in the same accommodation that is used for the purposes of emergency accommodation under section 98. He stated:
"7. It is important to note that a considerable percentage of those who apply for, and are accepted for, Section 4 support either decline the offer of support or fail to arrive at the proposed accommodation to take it up. It seems likely that this is for two reasons. First, accommodation provided under Section 4 is likely in practice to be in a different part of the country from that in which NASS was providing accommodation whilst the individual was awaiting the determination of his asylum claim. As a matter of policy, it is provided on a full board basis only, with no provision of cash or vouchers. It seems that many of the persons concerned prefer not to be re-accommodated in this way. Secondly, it appears that in reality many such individuals are able to find other sources of accommodation and support, for example from relatives or from other contacts in a local community. If this is regarded as preferable to Section 4 support, the latter will not be taken up even when offered.
8. By way of illustration of this point, in the year ending 31 March 2003 a total of 744 Iraqis applied for Section 4 support and all but a handful were made an offer of accommodation. At the present time, however, only 102 Iraqis are being accommodated under Section 4. The rest either did not return the slip accepting the offer of support…, or failed to travel to the accommodation arranged for them or left it shortly after arrival.
9. As I have already indicated, the policy of the Home Office is that Section 4 support should be reserved for genuinely exceptional cases, and should not be provided to failed asylum seekers as a matter of routine. Nor is it regarded as desirable to encourage the making of applications for support as soon as the claim for asylum has failed. Rather, the intention is that all other possibilities of support should be exhausted before applications under Section 4 are made. For the reasons I have already given, it is likely that in many cases such alternative sources of support will indeed be forthcoming.
10. It is therefore not considered appropriate to give notice of the possibility of Section 4 support as a matter of routine when individuals are notified of the decisions on their asylum claims, or even to do so in the case of categories of person (such as those from Northern Iraq) who might be likely to be offered assistance under Section 4. Indeed, given the exceptional circumstances in which Section 4 support is intended to be provided, any general encouragement to failed asylum seekers to apply for such support might be regarded as misleading."
- Importantly, however, in paragraph 11 of his witness statement, Mr Allen stated that "it should be the case that individuals who are genuinely in need of Section 4 support will become aware of it." He referred to:
i) the terms of the standard letter sent to unsuccessful asylum seekers, which was the basis of the letter dated 15 October 2002 sent to S and that dated 2 January 2003 sent to R referred to above, which direct the addressee to the Immigration Service and the International Organisation for Migration. Mr Allen stated that these organisations would be able to advise on the availability of hard cases support. Curiously, unlike the letters sent to S and to R, the standard letter does not refer to the Refugee Council.
ii) the fact that some 90 per cent of asylum seekers who appeal to adjudicators are legally represented, and their legal representatives "should be able to offer suitable advice to their clients if they are likely to qualify for Section 4 support if their appeal is unsuccessful".
He said that the Secretary of State had decided not to inform the providers of NASS accommodation to Iraqi Kurds of the possibility of hard cases support.
- On the issue of delays between applications for support and its provision, Mr Allen stated:
"12. Once an application for Section 4 support is received, the applicant is considered for eligibility. Usually, at the current time, it takes 7 to 10 days for a letter confirming or declining eligibility to be sent out. We have taken a random sample from April and May 2003 to check this and, from the four selected, the applications had taken 6, 4, 4 and 6 days respectively to process. Given the number of applications and the need for consideration of the personal circumstances of individual applicants this is the quickest time in which the process can be completed. At the time of (S's) application for support on 24 October 2002 the process took much longer to arrange due to the substantial increase in applications at that time (see para 15 below). The time taken for (his) application to be processed was not unusual then, but the situation has since changed due to increased staffing levels (see para 15).
13. In each case where an applicant has applied for Section 4 support and he or she falls under the eligible criteria, a letter is sent out requesting return of an acceptance slip. … It is necessary for the applicant to complete the acceptance slip so that they understand the conditions of provision of Section 4 support and that this may mean that they have to relocate to a different area of the country. The YMCA will not be contacted to arrange accommodation until the slip has been returned. Whilst this may introduce some further delay into the process, it is considered to be a valuable part of the procedure. Given the high percentage of applicants who subsequently decline Section 4 support, it avoids some of the wastage involved in arranging and reserving accommodation and making travel arrangements for those who do not take up offer of Section 4 accommodation. They also avoid the expense incurred in making unnecessary travel arrangements. I have spoken to caseworkers about this, and it appears that most people who decline offered support do so by not returning the slip, rather than by returning the slip and then failing to take up the accommodation.
14. Usually it takes 5 working days from return of the slip to arrange final accommodation details. Given the need to co-ordinate with an outside body (the YMCA) and the need to fix travel arrangements and support I respectfully suggest that this is not an unreasonable period for these arrangements to be finalised.
15. In relation to delays in the process, it is also important to note that the number of applications for Section 4 support, originally quite small, has been steadily rising from April 2002 onwards. It was because the number of applications came to be much higher than originally expected that NASS took over the administration of the system from the Refugee Integration Unit of the Home Office. In particular, there has been a notable increase in the rate since October 2002. Although I am not in a position to be sure of this, I think that this may well be because many asylum claims from Iraqi applicants were determined at this time. Efforts have been made to reduce any delays in arranging Section 4 support by increasing the resources available to the team responsible. Since October 2002 staff numbers have been increased from just one caseworker working full time on Section 4 applications to 6 caseworkers working full time. An additional person has also been brought in to provide general administrative support."
- Mr Allen's witness statement was supplemented with information as to current numbers of applications for hard cases support, given by Mr Giffin on instructions and confirmed after the hearing in a witness statement. In the weeks beginning 9, 16, 23 and 30 June and 7 July the numbers of applicants were 116, 52, 76, 58 and 72 respectively. As at 15 July there were 67 outstanding applications, including new applications and inquiries on existing applications. It is estimated that about half of these are from Iraq. By comparison, in the period before Easter 2003, approximately 90 applications per week were being received, of whom about 85 per cent related to Iraq.
- Mr Shotton made a second witness statement, in response to that of Mr Allen. Mr Shotton specialises in advising refugees and asylum seekers. At least 80 per cent of his caseload of about 80 cases at any one time relates to asylum support. He stated that the result of the Secretary of State's decision not to publicise the hard cases support scheme and criteria is that very few people are aware of the existence of the scheme. He eloquently, if tendentiously, referred to the scheme as "a well-kept secret from those who need it". He asserted that, as a result, some asylum seekers may seek to re-claim asylum under false names in order to obtain support, and he referred to the witness statement of Rashid Maref, an Iraqi Kurd, filed in support of his claim for judicial review. Mr Maref stated that he had been advised by solicitors that, following the rejection of his asylum appeal, no support was available; and that out of desperation he had made a second claim for asylum under a false name, as a result of which he was convicted of the offence of obtaining leave to enter or remain in the United Kingdom by deception and sentenced to 9 months' imprisonment.
- In his skeleton argument, Mr Cox, for the Claimants, referred to the recent decision of the Criminal Division of the Court of Appeal in R v Nagmadeen and others [2003] EWCA Crim 2004, in which coincidentally I gave the judgment of the Court. That case concerned 6 Iraqi Kurds who had had their claims for asylum rejected, whose support and accommodation had been withdrawn, and who had made second claims for asylum under false names in Felixstowe. Each of them had been sentenced to 12 months' imprisonment. Their possible eligibility for hard cases support had not been referred to in the proceedings before the Crown Court, and was not referred to before the Court of Appeal. Some at least of the appellants are likely to have been unaware of the availability of such support. One of the sentencing judges had referred to the prevalence of repeat claims for asylum, which were about 11 per cent of asylum claims at Felixstowe.
- Mr Shotton also disputed that those eligible for hard cases support would learn of it from the lawyers acting for them on their asylum claim. He stated that his experience was that those acting for asylum seekers in their immigration claim normally close their file once asylum appeal rights are exhausted, unless an application for judicial review is made, without further consideration of possible alternative sources of support. He said that some immigration lawyers are unaware of the existence of the hard cases scheme. Although a client might be referred to another agency, such as the Refugee Council, it does not run "drop in" advice sessions, and is often too busy to help. He said that local advice agencies, such as the Citizens Advice Bureau, are likely to turn away clients without information about hard cases support. An immigration lawyer or voluntary advice agency might refer a client to social welfare solicitors, such as CLP, but there are few such firms specialising in social welfare for asylum seekers. CLP have to turn away many more people than they can see and there is a long queue for appointments.
- Mr Shotton's evidence is supported by the witness statement of Mr Maref, whose immigration lawyers did not advise him of the availability of hard cases support. He had gone to the Refugee Council in Birmingham twice. On the first occasion he was told that they could not help. On the second occasion, they simply referred him to CLP for advice. Another Iraqi Kurd, Abobakar Ahmed, in the witness statement filed in support of his claim for judicial review, stated that he had gone to his immigration lawyers for advice when his accommodation and support under section 95 were withdrawn. They referred him to CLP. Another Iraqi Kurd, Diako Hamadamin, in his witness statement, said that following the withdrawal of accommodation and support provided for him under section 95, he went to the local office of the Refugee Council for advice. They told him that they could not help him. He was homeless between 18 October 2002 and 12 March 2003 when a friend referred him to CLP, who advised him of the availability of hard cases support.
The submissions of the parties
(a) NASS's policy not to inform failed asylum seekers of the hard cases support scheme
- Mr Cox eschewed reliance on the European Convention on Human Rights on this issue as well as on the issues relating to NASS's alleged delays. He submitted:
i) That the policy or practice of the Home Secretary not to inform those who may be eligible for hard cases support of the scheme and the criteria for eligibility is inconsistent with his hard cases policy, and is unlawful under the principle exemplified in Padfield v Ministry of Agriculture, Fisheries and Food [1968] AC 997.
ii) That the policy is irrational.
a) The correct inference to be drawn from the fact that so many applicants for hard cases support do not take up their offer is that they misunderstand the nature of the scheme, and only learn of it when they are given information by NASS. In other words, their ignorance increases the number of persons applying for hard cases support rather than reducing it.
b) The suggestion that those "genuinely in need of [hard cases] support will become aware of it" is illogical: being in genuine need does not generate the means to obtain information.
c) The Home Secretary relies on the references made in the refusal of asylum letter to organisations that may provide information. However, the letter refers to those organisations for the purposes of "help and advice on returning home" rather than for advice on support. This does not indicate that they may assist in relation to support. In addition, the evidence suggests that the Refugee Council cannot be relied upon to give information about hard cases support.
d) The Home Secretary's reliance on the availability of advice from representatives of solicitors firms acting on immigration appeals is ill-founded: the evidence of Mr Shotton shows that in practice, clients are not advised on the availability of hard case support or how to apply for it.
e) The view that, because hard cases support is given only in exceptional circumstances, general notification to those who might be eligible for it of the scheme and its terms "might be regarded as misleading" is perverse. Information as to the scheme is not the same as "general encouragement".
f) The standard letter, when written to a person who qualifies for hard cases support, is misleading, and it is unlawful for NASS to send such letters to persons whom it knows or should know qualify for such support.
g) It is unlawful to evict from accommodation provided by NASS persons whom NASS knows to qualify for hard cases support while deliberately keeping from them the existence of the scheme.
- Mr Giffin QC submitted:
i) The provision of support under section 4 is discretionary. The Home Secretary is under no duty to provide such support.
ii) The provisions of the 1999 Act show that support under section 4 was intended by Parliament to be more restricted than support under Part VI. Although Part VI is framed in terms of power rather than duty, it is redolent with the expectation of support. In contrast, support under section 4 was intended to be more restricted in scope. Parliament did not expect all failed asylum seekers to receive support under section 4. That expectation is reflected in the Home Secretary's policy. The requirement that a failed asylum seeker should have no avenue of support was intended to and does add to the requirement that he or she must be destitute in order to qualify for hard cases support.
iii) The object of the policy of refraining from informing failed asylum seekers of hard cases support is to put them to the test, to see if they could find an avenue of support other than from public funds. That is a lawful object.
iv) The standard form of letter is literally true and not misleading.
v) In other contexts, Parliament has expressly required the government or other public authority to inform individuals of their rights. It did not do so in relation to section 4 support. It is not for the Court to impose an obligation to inform them where Parliament has refrained (it may be inferred deliberately) from doing so.
vi) There is no evidence that ignorance of the availability of hard cases support causes suffering. It is not suggested that either of the Claimants suffered an infringement of his rights under Article 3 of the European Convention on Human Rights.
vii) The Home Secretary is entitled to take the view that such support should be given only to those who cannot manage by other means.
viii) The evidence that large numbers of those offered hard cases support do not take it up entitles the Home Secretary to take the view that a large proportion of those appearing to be qualified for such support are in fact able to manage without it.
ix) The Home Secretary is entitled to take the view that the provision of information as to the availability of hard cases support to every failed asylum seeker who might be qualified to receive it would cause a large number of unnecessary applications to be made.
x) The Home Secretary is entitled to take the view that it is desirable to avoid unnecessary applications for hard cases support being made because of the difficulties of ascertaining whether it is really needed and the costs involved in such investigations.
xi) The Home Secretary is entitled to take the view that those who really need support will become aware of its availability. In this connection:
a) there is no evidence that those who need hard cases support do not eventually learn of its availability;
b) it is rational to expect those in need to take advice, and that their advisors will be able to advise them of the scheme. Mr Giffin however conceded that in the light of Mr Shotton's evidence the Home Secretary's expectation with regard to solicitors acting in asylum cases may have to be reconsidered.
xii) The Home Secretary is entitled to weigh the advantages and the disadvantages of the current practice and has done so. That practice is the result of his doing so. It is not inconsistent with the 1999 Act or rendered unlawful by section 6 of the Human Rights Act. It therefore is not in breach of any fundamental rights of the Claimants or otherwise unlawful.
- Mr Cox responded that there was no evidence that the Home Secretary had weighed up the pros and cons of the policy of not informing failed asylum seekers who may qualify for hard cases support of the existence of the scheme.
The delay between an application for hard cases support and its provision
- On this issue, Mr Cox submitted that the NASS evidence showed that typically 12 to 14 working days now elapse between a claim for hard cases support and its provision, and that that delay, in the context of destitute persons who have no accommodation or means of support, is inconsistent with the policy. It involves claimants in unnecessary hardship. No real explanation had been provided for the delay. In practice, no inquiries were made of applicants who sought hard cases support who qualified as Iraqi Kurds or persons seeking judicial review of the rejection of their asylum claims. NASS had demonstrated that when required to by the Court accommodation and support could be made available immediately.
- On behalf of the Secretary of State, Mr Giffin accepted that it would be unlawful for NASS deliberately to delay the provision of section 4 support. He submitted that there was no evidence of deliberate delay, but rather of delay resulting from the administration of the scheme by the manpower resources available for it. He submitted that the Court could not prescribe a maximum period for the consideration of applications for hard cases support and the making of accommodation available.
- He also accepted that there is no statutory impediment to NASS permitting failed asylum seekers who appear likely to qualify for hard cases support to remain in their Part VI accommodation until section 4 accommodation is available. (However, as mentioned in paragraph 7 above, he did not accept that cash or vouchers could continue to be provided.) With typical candour, he accepted the force in Mr Cox's argument that eviction from Part VI accommodation in such cases is avoidable and undesirable, but he made no formal concession that it is unlawful.
Discussion
(a) The policy not to inform those appearing eligible for hard cases support of its availability
- I find the facts put before the Court in these proceedings troubling in a number of respects. First, in relation to solicitors and their staff who represent asylum seekers: it is a matter of concern that, on the evidence before me, many legal representatives acting for asylum seekers do not inform their clients who appear to qualify for hard cases support of the scheme and advise them how to apply under it. This may be because the caseworker dealing with the asylum claim is not legally qualified, and is unaware of the scheme. However, the scheme is far from being a secret so far as the legal profession is concerned. It is referred to in the standard textbook, Macdonald's Immigration Law and Practice, at paragraph 13.162, albeit that the changes to the Home Secretary's policy referred to in paragraphs 9 and 10 above were subsequent to the latest edition. The Refugee Council's website, an obvious source of information, includes a guide entitled "Advising asylum seekers in the West Midlands", which includes the terms of the hard cases support scheme and directions for making applications, and pages of help and advice in relation to the hard cases scheme in English and 15 other languages. I was told that the Immigration Law Practitioners Association has distributed to its members information about the scheme and that it runs training courses on support for asylum seekers, and it may be significant that neither of the firms of solicitors who acted for the Claimants on their asylum appeals is a member of the Association. The hard cases scheme is straightforward, and practitioners who act for asylum seekers should be aware of it. If they are aware of it, I do not understand why they do not give advice about the scheme to their clients whose asylum appeals are rejected and are eligible for hard cases support. It seems to me that it is unprofessional, and certainly uncaring, for them simply to close their file when a client is receiving support under Part VI, and may be eligible for hard cases support, without advising him or her about the scheme.
- Secondly, I find it surprising that eligible asylum seekers who seek advice from the Refugee Council may neither be told of the scheme nor be referred to solicitors who are able to advise about it. As mentioned above, its Chief Executive was the recipient of a NASS letter informing her of the application of the scheme to Iraqi Kurds; and details of the scheme are on its website. Doubtless, its staff work under pressure. But the immense importance of the scheme to those who are eligible for hard cases support, who are by definition in need, requires that if possible its staff should be able either to offer advice on the scheme (at least by offering a copy of the document on the scheme on the Council's website in an appropriate language), or to refer those in need to solicitors who can give that advice.
- I turn to address the position of the Home Secretary. He has made a decision not to inform apparently eligible asylum seekers of his policy in relation to the hard cases scheme. He has withheld information as to the scheme from providers of NASS accommodation to persons from Northern Iraq, presumably because they would inform those persons of the scheme. His decisions are not based solely on the consideration that there are other adequate means of making the scheme and his policy known: they are also based on the view that making it known more widely would encourage unfounded applications for hard cases support. These decisions fall to be considered on the basis of general principles and the particular facts.
- It is a fundamental requisite of the rule of law that the law should be made known. The individual must be able to know of his legal rights and obligations. Constitutional convention requires the publication of statutes. The practice in relation to their publication is described in the informative judgment of Lord Phillips MR in R (L) v Secretary of State for the Home Department [2003] EWCA Civ 25, [2003] 1 WLR 1230, [2003] 1 All ER 1062, at [18] to [23]. Typically, and I suspect for historical reasons, there is no domestic legal requirement that statutes must be published, and they take effect on the giving of the Royal Assent, irrespective of publication. The jurisprudence of the European Court of Human Rights is different: the Court declines to recognise domestic legislation that is not adequately accessible as a justification for interference with Convention rights under, for example, Article 5: see R (L) v Secretary of State for the Home Department at [17].
- There is, however, a statutory requirement for the publication of statutory instruments: see sections 2 and 3 of the Statutory Instruments Act 1946. In addition, section 3(2) makes it a defence for any person charged with an offence under a statutory instrument to prove that it was not published by Her Majesty's Stationery Office, "unless it is proved that at that date (the date of the alleged contravention) reasonable steps had been taken for the purpose of bringing the purport of the instrument to the notice of the public, or of persons likely to be affected by it, or the persons charged".
- In a number of contexts, particularly where important rights of the individual are concerned, Parliament has imposed on public authorities a legal duty to inform the individual affected of his rights or to give him advice. Examples are sections 164(2) and 190(3) of the Housing Act 1996 and sections 64 to 68 of the School Standards and Framework Act 1998. Mr Giffin understandably points to the absence of any relevant similar provision in the 1999 Act.
- In the present cases, I am concerned not with a law, but with an extra-statutory policy relating to the exercise of a statutory discretion, moreover a policy that does not in terms require that support be provided, but only sets out the qualifications for eligibility for support (and describes what may be provided). However, the policies of public authorities may have a significance approaching or approximating to a law, and may be equally important to the individual. This is particularly so in the field of immigration. The Immigration Rules themselves are not, in the strict sense, law: see R v Home Secretary ex parte Hosenball [1977] 1 WLR 766, 780-781 (Lord Denning MR, 788 (Cumming-Bruce LJ). According to McDonald:
"1.45 Unfortunately, the Immigration Rules are not a comprehensive code of all the practices regulating entry into the UK. There are great gaps, some of which are covered by well-known practices, which in some cases have an almost equivalent status to the Rules but for reasons best known to the Home Office are not incorporated into them. … Most of these policies are now being collected and put into the Immigration Directorate Instructions (IDI) and Asylum Policy Instructions (API), published by the Home Office since 1998 as part of its commitment to greater transparency or openness. These instructions are an invaluable guide, not just to policies outside the Rules but also to latest practice in the interpretation of the Rules. They are available on the internet, in most law libraries and in a number of organisations, including the Immigration Law Practitioners' Association. …"
- Furthermore, although the hard cases policy defines eligibility for, rather than a right to, support, in practice all those who are eligible and claim section 4 accommodation receive it, and there is nothing to suggest that any factors are taken into account that are not stated in the policy itself. In other words, as in the case of Part VI support, eligibility is in practice treated as an entitlement.
- The importance of making known what are, or are analogous to, policies is reflected in section 168 of the Housing Act 1996 (publication by local authorities of their housing allocation schemes) and section 92 of the School Standards and Framework Act 1998 (publication of, among other matters, school admissions policies).
- The present context is highly important to the individuals concerned, as highlighted by the recent decisions of the Court of Appeal in Q v Home Secretary [2003] EWCA Civ 364, [2003] 3 WLR 365, [2003] 2 All ER 905, and R ("T") v Home Secretary [2003] EWCA Civ 1285; see too the judgment of Maurice Kay J at first instance in the latter case, S, D and T v Home Secretary [2003] EWHC 1941 (Admin), reversed by the Court of Appeal in the case of T only. Misery and suffering may be involved. Fundamental human rights may be engaged.
- These considerations lead me to conclude that it is not open to the Home Secretary to decide to refrain from making known his hard cases policy. On principle a policy such as that should be made known to those who may need to avail themselves of it. Leaving aside contexts such as national security, it is in general inconsistent with the constitutional imperative that statute law be made known for the government to withhold information about its policy relating to the exercise of a power conferred by statute.
- In addition, it is inconsistent with that policy not to make available information about it: the restriction on information in practice excludes persons ignorant of it from the benefit of the policy in a manner that is not set out in or implicit the policy. In practice, on the evidence before me, section 4 support is restricted to those who are evicted or threatened with eviction from Part VI accommodation. That is not a requirement of the policy. The suggestion of the Home Secretary is that those who might qualify under the policy should be put to the test, on the basis that those who are evicted and are really in need will somehow learn of the policy. That is not referred to in the policy.
- I also accept Mr Cox's criticism of the suggestion that general notification of the availability of hard cases support "might be regarded as misleading". There is no sensible basis for so regarding a general notification. I accept that general notification of the scheme is likely to lead to more claims, although even that is not the same as accepting that the giving of the information is an encouragement to claim.
- Turning to the facts established by the evidence before me, in my judgment there is no justification for the Home Secretary's view that greater publication of the hard cases support scheme would encourage undeserved applications. There is no evidence before me to justify that view. I accept Mr Cox's submission that the inference to be drawn from the evidence as to the large number of applicants who do not take up the offer of accommodation under the scheme is that they would not have applied if they had known what would be offered to them. It is significant that no evidence has been put forward to justify a different approach to section 4 support from that in relation to Part VI support. Mr Cox also contrasted the practice of the Department of Work and Pensions in relation to income support and job seekers' allowance for United Kingdom residents. Those benefits are thought to be the objects of abuse, yet leaflets describing those benefits are made widely available at the Department's offices and Jobcentres and information concerning them is on its website. Perhaps closer to the present context, the standard IND letter notifying that asylum is refused (paragraph 336 of the Immigration Rules) informs the addressee of his right of appeal to the independent appellate authorities, and is accompanied by information on the right of appeal and where advice may be obtained. I have no facts before me to justify a different approach to hard cases support. In addition, I accept the substance of Mr Cox's criticism of Mr Allen's suggestion that general notification of the availability of hard cases support "might be regarded as misleading" or an encouragement to make claims.
- Furthermore, in practice, as Mr Giffin accepted, no enquiries are made of failed asylum seekers who have received support under Part VI and who qualify for hard cases support because they are Iraqi Kurds or have a meritorious judicial review claim. That is not surprising. Asylum seekers are only entitled to support under Part VI if they are destitute or likely to become so within a short period of time (currently 14 days). If the Home Secretary is satisfied that an Iraqi Kurd, for example, is destitute within the meaning of Part VI support, I see no basis for his reaching a different view as to his eligibility for hard cases support. The requirement of the policy that the failed asylum seeker "has no other avenue of support" adds nothing to the requirement that he be destitute, given that the definition of destitution in Part VI involves him having no means of obtaining adequate accommodation.
- In addition, I agree with Mr Cox that it is illogical to equate knowledge of the scheme with eligibility, which is the effect of the Home Secretary's assumption that those who truly need hard cases support will learn of its availability. As a matter of fact, the evidence of the experiences of S and Mr Maref point strongly against such an equation.
- There is also an inconsistency between two of the reasons put forward by the Home Secretary for his decision. It is inconsistent to refrain from informing apparently eligible persons of the scheme because the information would lead to unfounded claims and at the same time to assert that there are in any event adequate sources of information and advice about the scheme in the shape of asylum lawyers and welfare organisations.
- Moreover, the evidence, on which I have commented in paragraphs 42 and 43 above, indicates that the Home Secretary's assumption that failed asylum seekers' legal representatives and voluntary organisations are adequate sources of information about the scheme is unfounded as a matter of fact. In addition, the standard letter refers the addressee to the Immigration Service and the International Organisation for Migration for the purposes of advice on arranging their return to their country of origin, not for advice on support. NASS cannot therefore assume that those seeking support will address themselves to those organisations. Mr Allen's witness statement suggests that NASS do make this incorrect assumption.
- For the above reasons, I am satisfied that the decision of the Home Secretary not to inform failed asylum seekers of his policy on hard cases support is unlawful and must be reconsidered.
- In the course of argument, I expressed my misgivings at the form of order sought by the Claimants, which implies that the Home Secretary is under a duty to inform asylum seekers individually of the scheme. Parliament has refrained from imposing such an obligation. (As it happens, on 8 April 2003, in answer to Mrs Curtis-Thomas MP's question "what action is taken to inform asylum seekers of hard cases support" Beverley Hughes MP, the Minister of State at the Home Office, stated: "No specific information is currently given to failed asylum seekers about the possible provision of accommodation under section 4 of the Immigration and Asylum Act 1999 as amended." The italics are mine. The significance of the adjective is not apparent.) Furthermore, there might be other adequate means of making the scheme known to those who need such support. I note that in Padfield (which incidentally I do not think is authority for the proposition for which Mr Cox cited it), the House of Lords did not order the Minister to refer the complaint to the committee of investigation, but required him to consider the complaint according to law. As an alternative form of order, Mr Cox put forward draft declarations that:
"1. The current practice of the Defendant relating to the provision of information about his scheme under section 4 of the Immigration & Asylum Act 1999 to those who may qualify under that scheme is unlawful.
2. It is not a requirement under the said scheme that the applicant has been evicted from accommodation provided under section 95 or 98 of the Immigration & Asylum Act 1999."
- The first of these proposed declarations is, I think, too uncertain: a declaration should identify clearly, and without the need to refer to other documents, that which is declared unlawful. The second is uncontentious: Mr Giffin accepted that eviction from Part VI accommodation is not a prerequisite of eligibility for section 4 accommodation. However, the fact that it was sought indicates that eviction from Part VI accommodation has been seen as a pre-condition of hard cases support.
- In these circumstances, at the end of the hearing I stated that I should give judgment without specifying the order to be made by the court, with a view to giving the parties the opportunity to consider the judgment and to make submissions.
- On the basis of my judgment, the Home Secretary will have to reconsider his policy not to inform asylum seekers who apparently qualify for section 4 accommodation of the existence of the scheme. He will take into account that while the standard form of letter is literally accurate, referring as it does to the cessation of support under Part VI, the evidence indicates that it is understood by some asylum seekers, and indeed by some of their lawyers, as indicating that no other form of support will be available. Those to whom the letter is addressed, with a limited if any understanding of English, and none of English law, are likely so to understand the letter. Furthermore, there is evidence that the eviction or threat of eviction does cause real hardship to persons who are eligible for hard cases support, and known by NASS to be so eligible: I refer to the witness statements of S and of Mr Maref. On the other hand, the figures given by Mr Allen as to the numbers of failed asylum seekers who do not take up offers of section 4 accommodation indicates that many of them must find other means of support. The Home Secretary will doubtless also take into account the evidence suggesting that persons eligible for hard cases support make false duplicate asylum claims in order to obtain support, and if caught are then sentenced to terms of imprisonment; and that, quite apart from other considerations, the cost of keeping them in prison must be very much greater than the cost of YMCA accommodation provided under section 4.
Delay in the provision of section 4 accommodation
- I can deal with this issue shortly. I accept Mr Cox's criticisms of Mr Allen's evidence. It may be that the evidence presented to the court has been superficial, but I have to deal with these cases on that evidence. Given that no investigation is made as to an applicant's individual circumstances, it is not apparent what administrative steps are being taken by NASS that involve the delays before an offer of support is made that were seen in the cases of the Claimants and which are still typical. It is by no means apparent why 5 days are then required to arrange final accommodation details and travel arrangements. The delays involved have to be scrutinised against the background that the applicants for support are ex hypothesi destitute and have nowhere else to turn, and against the undoubted fact that when required by the court to do so, NASS can and does arrange accommodation immediately. NASS has failed to explain why the delays that occurred in the present cases took place.
- The court cannot however specify what resources must be devoted to administering the scheme, or what delay in general is lawful and what delay is not. A further consideration is that the court must avoid making a declaration that does not respond to changes in circumstances or the facts of individual cases. I should, I think, follow the practice of the European Court of Human Rights, which does not make declarations divorced from the facts of individual cases of the time within which public authorities must fulfil their duties; it awards damages or makes findings of infringement of Convention rights based on the facts of individual cases.
- I appreciate that, if I do not make a general declaration concerning NASS's delays, the result may be more applications for judicial review and the attendant costs, and more applications for interim injunctions, but that is, I think, inevitable.
Conclusions
- I shall hear counsel on the orders to be made on the basis of my above conclusions.
- I would add that the Court is by no means insensitive to the problems caused by large-scale immigration of asylum seekers and the difficulties of repatriating those whose asylum claims are unfounded. I have fully in mind that S, whose claim for asylum was rejected on grounds of its lack of credibility, must therefore be regarded as an economic migrant, as must other Kurds from Iraq whose claims for asylum have been rejected. However, by introducing the hard cases scheme the Home Secretary has himself recognised that common humanity requires that even failed asylum seekers, who are prohibited from working and have no other avenue of support, and have good reason not to return to their own countries, must be provided with the essential basics of life. The scrutiny of the court is limited to reviewing whether the practice of NASS in administering the scheme is rational and consistent with legal principle. In the respects I have referred to above, it is not.
- - - - - - - - - - - - - -
MR JUSTICE STANLEY BURNTON: This judgment has been distributed in draft. I am very grateful to both counsel for their amendments and suggestions. The most recent suggestion has been taken into account in the drafting of paragraph 41, as I hope counsel can see. I hope that satisfies their concerns.
The conclusions I came to are set out in the judgment. Although counsel, I think, are agreed on the form of order to be made, it is not the form of order I envisage making. I envisage making an order requiring the Secretary of State to reconsider his practice in relation to information concerning hard cases of support in accordance with the law. The basis for my decision was that he appeared to have made decisions not to make information available, rather than to consider what information ought to be made available. That was the form of the order I made that was made in the decision of the House of Lords which we referred to in the course of argument, wasn't it?
MR GIFFEN: My Lord, for our part --
MR JUSTICE STANLEY BURNTON: In Padfield.
MR GIFFEN: -- I would have no objection to an order which makes no declaration at all, but was simply to be an order requiring the Secretary of State to reconsider. I am sure that would be acceptable.
My Lord, I do make an application for permission to appeal. May be your Lordship wishes to hear Mr Cox about the form of order first?
MR COX: My Lord, your Lordship's judgment, in my submission, is sufficiently clear on the issues of law and it is your Lordship's order and I am perfectly content for your Lordship to make that order. I have no objections to the suggestion.
MR JUSTICE STANLEY BURNTON: Could I ask you to agree a form of order in accordance with what I have just said and give it to the associate? Now, leave to appeal. What do you say?
MR COX: My Lord, I say that your Lordship's judgment, while taking the law one step further as being an incremental development of the existing principles, and giving the limited nature of the declaration of the order your Lordship has made this morning, the right course, in my submission, is for the Secretary of State to go back to his policy, remake it and, if this matter needs to be taken further, there will be further litigation. But your Lordship does not make any novel -- doesn't decide any novel point of law which justifies permission to appeal.
MR JUSTICE STANLEY BURNTON: Thank you very much. This is a case for leave to appeal. Costs are agreed?
MR GIFFEN: My Lord, I am not resisting the order that Mr Cox seeks.
MR JUSTICE STANLEY BURNTON: The claimants will have their costs. Normal order in relation to public funding?
MR COX: Yes.
MR JUSTICE STANLEY BURNTON: Anything else?
MR COX: Simply that the form of the order that I propose to your Lordship as to costs is that they pay the claimant's costs of the entire claim to be assessed if not agreed.
MR JUSTICE STANLEY BURNTON: Why does the word "entire" appear?
MR COX: My Lord, my solicitors tell me that in a recent taxation concerning another firm the taxation master refused interpartes costs for the leave stage because the judge at the leave stage on the papers had not said costs reserved, and out of an abundance of caution they asked me to ask your Lordship to make an order in that form to make it clear, if that is possible, that that extends to the leave stage, permission stage in these cases, where similar orders were also made.
MR GIFFEN: My Lord, I don't resist that. It would seem a little harsh if the claimant --
MR JUSTICE STANELY BURNTON: I think judges don't make orders at the permission stage on the basis that they will be assessing costs in the case, but the order that I prefer to make is not the entire claim, but the costs of the claim including the applications for permission. Is that not rather clearer?
MR COX: My Lord, as long as it is not thought that that in any sense excludes the interim relief applications.
MR JUSTICE STANLEY BURNTON: You can have both, but specified. I think it is better to have them specified rather than an entire claim which may be good enough for your purposes but may leave something open to argument.
MR COX: Yes, my Lord. Perhaps then if it is to pay the claimant's costs of the claim, including the costs of the application for permission, and of applications for interim relief?
MR JUSTICE STANLEY BURNTON: Were they separate to the claims for permission?
MR COX: Interim relief was dealt with separately from permission at the early stage.
MR JUSTICE STANLEY BURNTON: Yes, unless Mr Giffen wishes to say anything, that will be the form of order I would prefer to make.
MR GIFFEN: My Lord, I am content with that. My Lord, I should have mentioned that my instructing solicitor did notice one other typographical error in the judgment which we have overlooked.
MR JUSTICE STANLEY BURNTON: I might say that your fax -- was it last night?
MR GIFFEN: Yes.
MR JUSTICE STANLEY BURNTON: Led to running around early this morning, as you can imagine. Give me the other amendment because the judgment is still subject to editorial corrections.
MR GIFFEN: It is paragraph 46. The quote from the Statutory Instruments Act says "unless it is proved that at that at".
MR JUSTICE STANLEY BURNTON: I see, there are too many "that ats".
MR GIFFEN: It must be "unless it is proved at that date".
MR JUSTICE STANLEY BURNTON: There is a surplus "that at".
MR GIFFEN: The second "that at" should be "date" I think.
MR JUSTICE STANLEY BURNTON: Yes. Too many "that ats". It should be "that at (the date of the alleged contravention)".
MR GIFFEN: No, it should read "unless it is proved that at that date (the date of the alleged contravention)".
MR JUSTICE STANLEY BURNTON: I see. So there is a "date" missing.
MR GIFFEN: Instead of the second "that at".
MR JUSTICE STANLEY BURNTON: Thank you very much. I am always impressed with accurate proof reading. It is a facility which I am incapable of. Unless there is anything else, thank you both for an interesting case and interesting argument. Let us see what the Court of Appeal says.
(Court Adjourned)
