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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Secretary of State for the Home Department, R (on the application of) v Chief Asylum Support Adjudicator & Anor [2002] EWHC 2218 (Admin) (25 October 2002) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2002/2218.html Cite as: [2002] EWHC 2218 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		25 October 2002

 
Introduction

1. This claim for judicial review raises an interesting issue on the jurisdiction of an Asylum Support Adjudicator to hear an appeal where an asylum seeker with a child has been granted asylum support under section 95 of the Immigration and Asylum Act 1999 (“the 1999 Act”), but only upon the condition that he and his family move from their existing home to a dispersal area to which they refuse to travel. The Chief Asylum Support Adjudicator held in a determination of 17 January 2002 that she had jurisdiction to hear and determine such an appeal by the asylum seeker.
2. The Secretary of State for the Home Department (“the Secretary of State”) seeks to quash that decision and he submits that asylum support adjudicators have no jurisdiction under statute or otherwise to entertain appeals in such cases. His contention is that an applicant for asylum support has only a statutory right to appeal to an Asylum Support Adjudicator against decisions by the Secretary of State that an applicant does not “qualify for support” (section 103(1) of the 1999 Act) or a decision by the Secretary of State to “stop providing support [for a person] … before that support would otherwise have come to an end” (section 103(2) of the 1999 Act). He submits that in the present case the asylum seeker could not appeal but that the asylum seeker and his family would instead have had to rely on a claim to judicially review the decision of the Secretary of State to make payment of the asylum seekers’ support conditional on them moving to a dispersal area. Elias J gave permission to pursue this application which is opposed by the Chief Asylum Support Adjudicator and by Ahmed Dogan, the asylum seeker, who appears as an Interested Party on this application.
3. The Interested Party has now exceptionally been given asylum support, even though he and his family have not moved to the dispersal area of Liverpool but they still live in London. The claim has continued to the present full hearing as it raises an important issue, even though its outcome is only of academic interest for the Interested Party but of importance to the Chief Asylum Support Adjudicator, to the Secretary of State and to those who may wish to appeal similar decisions to Asylum Support Adjudicators in the future. Although the Chief Asylum Support Adjudicator did not press for any particular construction of the legislation, she endeavoured to assist the court by explaining fully the basis of her decision, and also by advancing a number of possible contrary arguments to those advanced by the Secretary of State. This contribution to the proceedings was important because it was originally unclear whether the Interested Party would take part at all. In those circumstances, there was in the event a substantial coincidence between her submissions advanced on her behalf and those advanced by the Interested Party, despite their difference roles in the proceedings.

The Statutory Framework

4. Asylum seekers almost invariably arrive in this country without any assets and they cannot legitimately earn any money until their asylum claims have been determined. This case is concerned with the basis on which asylum seekers are to be treated in the interim. The Secretary of State, acting by the National Asylum Support Service (“NASS”), administers the system of support for asylum seekers under Part VI of the 1999 Act. This is a new system, which provides centralised support for asylum seekers, who previously had to rely upon piecemeal provision by local authorities under general welfare legislation. One of the central aims of this new system of asylum support is to ensure that there is a fair dispersal of asylum seekers around the country and, in particular, to end the concentration of asylum seekers in the London region and in the port cities in South-East England. This new system gives the Secretary of State power to give support to asylum seekers, subject to conditions that they move to certain specified dispersal areas so as to enable him to ensure that asylum seekers are dispersed. The power of the Secretary of State to provide support for asylum seekers and their families arises under section 95 of the 1999 Act, the material parts of which provide that:-

“(1) The Secretary of State may provide, or arrange for the provision of, support for-

(a) asylum seekers, or

(b) dependants of asylum seekers,

who appear to the Secretary of State to be destitute or to be likely to become destitute within such period as may be prescribed.

…

(3) For the purposes of this section, 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.

(4) If a person has dependants, subsection (3) is to be read as if the references to him were references to him and his dependants taken together.

…

(7) In determining, for the purposes of this section, whether a person’s other essential living needs are met, the Secretary of State-

(a) must have regard to such matters as may be prescribed for the purposes of this paragraph; but

(b) may not have regard to such matters as may be prescribed for the purposes of this paragraph”.

…

(9) Support may be provided subject to conditions.

(10) The conditions must be set out in writing.

5. Pending consideration of whether a person is entitled to support under section 95(1), the Secretary of State has the power to provide “temporary support” under section 98 of the 1999 Act, the material parts of which provide that:-

“(1) The Secretary of State may provide, or arrange for the provision of, support for-

(a) asylum seekers, or

(b) dependants of asylum seekers,

who it appears to the Secretary of State may be destitute.

(2) Support may be provided under this section only until the Secretary of State is able to determine whether support may be provided under section 95”.

6. The Chief Asylum Support Adjudicator accepted in paragraph 11 of her decision, that once the Secretary of State has determined an application for support under section 95, he has no power to continue to provide temporary support under section 98: (see section 98(2)). This finding has rightly not been challenged and it is relevant as it is common ground that section 95 support was actually granted to the Interested Party by NASS’ letter to the Interested Party of 21 December 2001 to which I will refer in greater detail in paragraph 9 below.
7. This case is concerned with the right of asylum seekers to appeal against a decision of the Secretary of State to give support to an asylum seeker, subject to conditions. An Asylum Support Adjudicator is a creature of statute, who may only entertain appeals by applicants for asylum support in two specific circumstances, namely:

(i) under section 103(1), when the Secretary of State on an application for support under section 95 has decided that an applicant “does not qualify for support under [section 95]”; or

(ii) under section 103(2), when the Secretary of State “decides to stop providing support for a person under section 95 before that support would otherwise have come to an end”.

For the sake of convenience, these two forms of appeal will be referred to as “non-qualification appeals” and “stoppage appeals” respectively. It is agreed by all parties that if the Chief Asylum Support Adjudicator had jurisdiction to hear the appeal of the Interested Party, it could only be on the basis that it was a stoppage appeal as on the facts which I will set out in paragraphs 9 and 10 below, it could not constitute a non-qualification appeal. So the critical factor on this application is whether the Interested Party’s appeal to the Chief Asylum Support Adjudicator was a stoppage appeal within section 103(2) of the 1999 Act as the Chief Asylum Support Adjudicator found it to be and it is the decision challenged on this application by the Secretary of State.

8. Significantly, another potential source of appeals to Asylum Support Adjudicators is contained in section 103(7) of the 1999 Act, by which Parliament has provided for regulations to be made to provide a third type of appeal where “decisions as to where support under section 95 is to be provided under section 95” (my emphasis added) are to be appealable to an Chief Asylum Support Adjudicator (“location appeals”). As at the time of the decision under challenge, the Secretary of State had not made any such regulations and so adjudicators still have jurisdiction to deal only with non-qualification appeals and with stoppage appeals. The Secretary of State contends that the Chief Asylum Support Adjudicator did not have jurisdiction on the Interested Party’s appeal as this was not a stoppage appeal, but it was actually a location appeal.

The Facts leading up to the appeal

9. Mr. Dogan, his wife and their minor son are Turkish Kurd asylum seekers, who arrived in the United Kingdom on 11 October 1999. From May 2001, NASS provided temporary support to the family by way of accommodation and vouchers under section 98(1) of the 1999 Act. This temporary support was provided in Luton. On 21 December 2001, the Secretary of State decided to grant section 95 support to the family, pending determination of the asylum claim. The section 95 support was to be provided in a dispersal area, Liverpool, and arrangements were made for the family to travel to that accommodation. In NASS’ letter to the Interested Party of 21 December 2001, it was explained that section 95 support was being granted, but:

“You should note that support will only be available to you in a dispersal area and that should you fail to travel you will not receive any further support at your current address”.

10. It was that decision which was the subject of the appeal to the Chief Asylum Support Adjudicator. As was explained in the Chief Asylum Support Adjudicator’s determination of 17 January 2002, the family did not travel to Liverpool as they were not given adequate notice of their proposed dispersal and the Interested Party appealed. The Secretary of State contended to the Chief Asylum Support Adjudicator that she had no jurisdiction to entertain this appeal because on the facts of the case, the Secretary of State had not “stopped providing support before that support would otherwise have come to an end” within section 103(2) of the 1999 Act, which, as I have explained, covers stoppage appeals.
11. As I will explain, the Chief Asylum Support Adjudicator justified her ruling that she had jurisdiction on the basis first, of the Human Rights Act 1998 and Article 6 of the Convention and second that “…Parliament cannot have intended that by reason of section 122 of the Act, that appellants with dependant children should be accorded less rights than those with none”.
12. The reference to section 122 is a reference to the Secretary of State’s policy that support under section 95 will remain open in dispersal areas to families who fail to travel to dispersal areas because of the Secretary of State’s statutory duty under section 122(3) to provide support for children. The Secretary of State does not withdraw section 95 support from families when they fail to travel, but he only makes it available conditional on them moving to a dispersal area. In contrast, in the case of asylum seekers without children, the Secretary of State has only a power and not a duty to provide support and this will not be exercised in favour of an individual who refuses to comply with a condition that he should move to a dispersal area, as a condition of obtaining support. The Chief Asylum Support Adjudicator’s reasoning was that single persons thereafter have a “stoppage appeal” to a Chief Asylum Support Adjudicator while those with families have no such appeal. I will return to consider this argument in paragraphs 37 to 40 below.
13. Section 122 of the Act provides, insofar as is material to this application, that:-

122.-(1) In this section “eligible person” means a person who appears to the Secretary of State to be a person for whom support may be provided under section 95.

(2) Subsections (3) and (4) apply if an application for support under section 95 has been made by an eligible person whose household includes a dependant under the age of 18 (“the child”).

(3) If it appears to the Secretary of State that adequate accommodation is not being provided for the child, he must exercise his powers under section 95 by offering, and if his offer is accepted by providing or arranging for the provision of, adequate accommodation for the child as part of the eligible person’s household.

The approach of the Chief Asylum Support Adjudicator

14. In her reasons, the Chief Asylum Support Adjudicator explained that she was satisfied that the Secretary of State had approved the Interested Party’s application for asylum support under section 95 of the 1999 Act and that he had made arrangements for their dispersal to Liverpool. She considered that any support provided to the Interested Party after 21 December 2001 had to be section 95 support, because section 98(2) prohibits any payment of temporary section 98 support once it has been determined that support may be provided to the Interested Party under section 95. As I have explained, this finding is correct and has not been challenged. In consequence, for the purposes of the present challenge, the fact that the Interested Party received temporary section 98 support is neither relevant nor material to the jurisdiction of the Chief Asylum Support Adjudicator to hear the appeal of the Interested Party.
15. The Chief Asylum Support Adjudicator then continued by stating in her determination that:-

“12. The appellant tells me that he received two weeks vouchers with his letter of 21 December 2001. He has not received any since. This support having ceased following the appellant’s failure to travel to Liverpool, I am satisfied that I have jurisdiction under section 103(2) which states:-

“if the Secretary of State decides to stop providing support for a person under section 95 before that support would otherwise have come to an end, that person may appeal to an Chief Asylum Support Adjudicator”.

13. The words “stop providing support” must be given their ordinary everyday meaning. This must therefore include suspension or discontinuation of support. The fact in this and other similar cases the Secretary of State argues that he had not decided to discontinue support but merely to suspend it until the open offer of accommodation if taken up in a dispersal area, does not entitle the Secretary of State to deprive the appellant of his right of appeal and to have his reasons for failing to travel tested by an independent and impartial Tribunal”.

16. The Chief Asylum Support Adjudicator explained that her conclusion was supported by the provisions of the Human Rights Act 1998 because the determination of whether such a person as the Interested Party should receive or continue to receive asylum support is the determination of a “civil right” within the meaning of Article 6 of the Convention. Thus, she considered the legislation should therefore be interpreted, if possible, in close conformity with the European Convention on Human Rights. She then explained that in contrast to the policy adopted towards people such as the Interested Party, who were adult members of families with dependant children, the Secretary of State had adopted a policy towards single persons or childless couples of making a positive decision to discontinue section 95 support, rather than of making support conditional on moving to a particular location in similar circumstances.
17. This, the Chief Asylum Support Adjudicator said, incontrovertibly triggered a right of appeal under section 103(2) of the 1999 Act and it constituted a remedy against the cessation of support fully in conformity with the asylum seeker’s Article 6 rights by providing an appeal to an independent and impartial tribunal. The Chief Asylum Support Adjudicator decided that the legislation should therefore be construed, if possible, so as to provide a similar appeal to an independent and impartial tribunal for families whose section 95 support had ceased in similar circumstances because the Secretary of State has imposed a condition of moving to a particular location, which was a condition with which the asylum seeker had refused to comply. She considered that such a construction of the provisions of section 103(2) of the 1999 Act would have the effect of minimising the differences in treatment between similar cases and, in particular, of avoiding the effect of a policy for which the Secretary of State could not have intended, namely of providing a less effective remedy to a group which is more in need of an effective remedy in the form of families with dependant children.

The submissions of the Secretary of State

18. The basic submission of Mr. Pushpinder Saini for the Secretary of State was that the Chief Asylum Support Adjudicator misdirected herself by regarding the Interested Party’s appeal as a stoppage appeal even though it was actually a location appeal. This, he submitted, was very significant because a location appeal cannot now be brought because, as I have explained in paragraph 8 above, the Secretary of State had not yet made regulations under section 103(7) of the 1999 Act permitting the bringing of location appeals. He contends that the appeal of the Interested Party did not fall within section 103(2) of the 1999 Act as a stoppage appeal because the Secretary of State had not in the wording of that section decided “to stop providing support for a person under section 95”. Mr. Saini submits that in his letter of 21 December 2001, the Secretary of State had given asylum support to the Interested Party but that he had then in that letter merely proceeded to identify the place where the interested party had to live in order to obtain section 95 support. He points out that there was nothing unlawful or wrongful in that decision.
19. Mr. Saini’s second reason for arguing that the Chief Asylum Support Adjudicator did not have jurisdiction is that the Secretary of State did not, using the wording of section 103(2) of the 1999 Act, with my emphasis added, “decide to stop providing support [for the Interested Party] before that support would otherwise have to come to an end”. His case is that there was simply one decision made by the Secretary of State which was contained in his letter of 21 December 2001 and that it did not interfere with any pre-existing right of the Interested Party. Therefore significantly, this one decision contained in the letter of 21 December 2001 did not cause any existing section 95 support for the Interested Party to stop before, in the words of section 103(2) of the 1999 Act, such section 95 support “would otherwise have come to an end”. Mr. Saini contends that the comparison between the treatment of a family with children was treated and a childless couple is not of any assistance or relevance in resolving the present issue and so this difference in treatment does not help to determine a question of strict construction.
20. Mr. Saini submits that the Human Rights Act 1998 is not relevant because it has not been suggested that the approach put forward by the Secretary of State interferes with any Convention rights of the Interested Party in this particular case. That point was not disputed by counsel for the Chief Asylum Support Adjudicator or for the Interested Party.

The Submissions of the Chief Asylum Support Adjudicator and the Interested Party

21. Mr. Robin Tam for the Chief Asylum Support Adjudicator and Mr. Simon Cox for the Interested Party both agreed with Mr. Saini that the solution to the issue of the Chief Asylum Support Adjudicator’s jurisdiction depended upon the construction of section 103(2) of the 1999 Act.
22. As a preliminary observation, Mr. Tam contends that to construe this sub-section, it is necessary to appreciate and to bear in mind that the terms of the Asylum Support Scheme which give valuable appeal rights to asylum seekers entitled to appeal a decision of the Secretary of State as it requires decisions to be made speedily on appeal. The times specified in the Asylum Support Appeals (Procedure) Rules 2000 (“the Appeal Rules”) for the appeal procedure ensure that appeals are heard very promptly. Thus, a notice of appeal against a decision of the Secretary of State must be received by the Adjudicator not later than two days after the day on which the support seeker received the decision letter (Rule 3(3) of the Asylum Appeal Rules). Thereafter, on the day on which the Adjudicator receives notice of appeal or if it is not reasonably practicable to do so on that day as soon as reasonably possible on the following day, the Adjudicator must send a copy of the notice of appeal to the Secretary of State (Rule 4(1) of the Asylum Appeal Rules). Then on the day after the day on which the Chief Asylum Support Adjudicator receives the notice of appeal, the Secretary of State must send the appeal bundle first to the Chief Asylum Support Adjudicator by fax or by hand and second, to the appellant by first class post or by fax (Rule 4(2) of the Asylum Appeal Rules). There are strict time periods relating to what is to happen on the appeal after “ the consideration day”, which is the day after the day on which the Secretary of State sends the appeal bundle to the Chief Asylum Support Adjudicator in accordance with that provision, because on that consideration day, the Chief Asylum Support Adjudicator must decide whether there should be an oral hearing for the appeal, set a date for determining the appeal and give notice of the oral hearing to the Secretary of State and to the asylum seeker (Rule 4(3) of the Asylum Appeal Rules). Significantly, if there is to be an oral hearing of the appeal, that hearing must take place and the appeal must be determined four days after the consideration day.
23. So Mr. Tam summarises that submission by contending correctly that what he describes as this “merits-based” appeal procedure in the Asylum Appeal Rules enables a dissatisfied asylum support seeker to obtain support speedily by an appeal. He contends that this remedy contrasts with a claim for judicial review which he says is a drawn-out and an expensive procedure.
24. I agree that an appeal under of the Asylum Appeal Rules is a much more expeditious and more comprehensive right for an asylum seeker than an application for judicial review as it enables the facts and the factual conclusions reached by the Secretary of State to be reconsidered very promptly by the Chief Asylum Support Adjudicator, while a judicial review claim only provides redress on recognised but limited public law grounds. Nevertheless, in judicial review proceedings, unlike under the appeals procedure, an asylum support seeker can obtain community legal service funding. In addition, orders can be, and are, made in the Administrative Court for interim asylum support on such applications for judicial review. Nevertheless, I accept that an appeal is a useful and valuable procedure as it gives valuable and speedy rights to an applicant for asylum support and I will bear that in mind when I construe section 103 (2) of the 1999 Act
25. Mr. Cox and Mr. Tam submit first that on its true construction, the Interested Party’s appeal to the Chief Asylum Support Adjudicator fell within the scope and the wording of section 103 (2) of the 1999 Act as a stoppage appeal. In support, they explain that the words “the Secretary of State decides to stop providing [section 95 support] … before that support would otherwise have come to an end” in that subsection refer to the situation in which the support of the asylum seeker for asylum ends because the substantive appeal of the asylum seeker on his or her claim to asylum in this country is determined or is abandoned. Thus, they contend that a stoppage appeal could be brought against any decision of the Secretary of State, who before the separate appeal of the asylum seeker for asylum is determined, imposes a condition to be satisfied before asylum support can be granted and with which the asylum seeker does not comply.
26. Second, Mr. Cox and Mr. Tam both contend that in construing section 103(2) of the 1999 Act, the court should ensure that there should be parity of rights between, on the one hand, childless couples who have a right of appeal under section 103(2) and, on the other hand, couples with children, like the Interested Party and his wife. Mr. Cox has a further submission that a stoppage appeal arises “in all cases where the Secretary of State begins providing support under section 95 and then stops providing it” (paragraph 7 of his skeleton argument).
27. The final contention of Mr. Cox and Mr. Tam is that if their primary submission on the construction of section 103(2) of the Act is wrong and that a stoppage appeal can only be brought to challenge a decision to terminate existing section 95 rights, they then say that in his letter of 21 December 2001, the Secretary of State actually made two decisions, with the first and earlier decision in that letter being to give section 95 support while the second and later decision in that letter cancelled the support in the event of the Interested Party not moving to Liverpool. So they say that the second decision in that letter ended support given in the first decision in that letter before it “would otherwise have come to an end” and this enables the Interested Party to pursue a stoppage appeal. Mr. Cox and Mr. Tam therefore submit that the Interested Party’s appeal to the Chief Asylum Support Adjudicator fell clearly within the ambit of section 103(2) and so this challenge by the Secretary of State should be rejected.
28. Thus, the dispute between the parties relates first to the construction of section 103(2) of the 1999 Act and second to the application of that construction to the decision of the Secretary of State contained in his letter of 21 December 2001.

Construction of section 103(2) of the 1999 Act

29. As I have explained, it is common ground between all the parties that the answer to the issue of whether the Chief Asylum Support Adjudicator had jurisdiction to hear the appeal of the Interested Party depends upon the construction of section 103(2) of the 1999 Act, the terms of which I have already set out in paragraph 7 above. It is appropriate to record at this stage that a representative of the Treasury Solicitor, who instructs both Mr. Saini and Mr. Tam, has helpfully looked at the relevant volumes of Hansard and has not found any speeches in Parliament that throw any light on the issue raised on this application concerning the construction of section 103(2) of the 1999 Act.
30. The Chief Asylum Support Adjudicator and the Interested Party contend that I should take into account in construing this section, the consequences of accepting the Secretary of State’s construction and I will do so. In ascertaining the literal meaning, I bear in mind that the role of judges which when faced with legislation which produces, an allegedly unjust result was described by Lord Diplock (with whom Lords Edmund-Davies, Keith of Kinkel and Fraser of Tullybelton agreed) in Duport Steel v. Sirs [1980] 1 WLR 142 at 157C as being:-

“When Parliament legislates to remedy what the majority of its members at the time perceive to be a defect or lacuna in the existing law … the role of the judiciary is confined to ascertaining from the words that Parliament has approved as expressing its intention what that intention was, and to giving effect to it. Where the meaning of the statutory words is plain and unambiguous it is not for the judges to invent fancied ambiguities as an excuse for failing to give effect to its plain meaning because they themselves consider that the consequences of doing so would be inexpedient, or even unjust or immoral.

In controversial matters such as are involved in industrial relations there is room for differences of opinion as to what is expedient, what is just and what is morally justifiable. Under our constitution it is Parliament’s opinion on these matters that is paramount”.

31. The literal construction of section 103(2) is that the right to bring a stoppage appeal does not arise merely and solely because asylum support is stopped. The wording of section 103(2), with my emphasis added, makes it clear that the triggering event has to be a decision to stop asylum support “before that support would otherwise have come to an end” (emphasis added) and not merely any decision to stop asylum support, as those ten quoted words must and do have some significance as showing an additional condition that has to be satisfied before a stoppage appeal can be pursued. The use of the italicised word “otherwise” in that section, which I have emphasised is significant as it indicates that a right of appeal for a stoppage appeal only arises if before the decision under appeal is made, the Interested Party had a pre-existing right to section 95 support which would not otherwise have come to an end. If there was not a pre-existing right to section 95 support before the decision under challenge was made, then there can be no section 95 support, which would otherwise have come to an end.
32. It follows that a decision to stop support to an asylum seeker only gives rise to an appeal under section 103(2) if before the decision under challenge to stop payment is made, the claimant already possessed an existing right to section 95 support which then had been prematurely terminated by the decision under challenge in the appeal proceedings. The claimant could only have possessed that right to pre-existing section 95 support if he or she had already and previously been granted to him or her. In other words, the right of appeal under section 103(2) of the 1999 Act for a stoppage appeal only arises if the asylum seeker can show that two separate decisions had been made, namely a first one to grant it and then a second later one, being the one being challenged, to terminate it prematurely.
33. So an asylum seeker cannot pursue a stoppage appeal if the Secretary of State only makes one decision granting either support for a limited period of time or support subject to a condition, such as that it will only be provided if the claimant moves to a particular area; in that event, there is no decision to stop providing support in the words of section 103(2) “before that support would otherwise come to an end”. The simple reason is that otherwise before the decision to stop support was made, there was no section 95 support and hence no support that would not have “otherwise come to an end”. A right of appeal on a stoppage appeal therefore requires a pre-existing and continuing right to section 95 support, which is then stopped by the decision under challenge. It is unnecessary for me to reach a conclusion on Mr. Saini’s contention that if Mr. Cox and Mr. Tam are correct on their submissions on the scope of stoppage appeals, there is no need for a location appeal.
34. Before reaching that conclusion, I had considered and had then rejected four contrary submissions of the Chief Asylum Support Adjudicator and the Interested Party on the construction of section 103(2) of the 1999 Act.

The contrary submissions of the Chief Asylum Support Adjudicator and the Interested Party

(i) Their literal construction of section 103 (2) of the 1999 Act

35. Counsel for the Chief Asylum Support Adjudicator and the Interested Party have submitted that the words “before that support would otherwise come to an end” simply means the person receiving section 95 support ceases to be an asylum seeker as a result of the terms of the statutory regime. They point to the definition of “asylum seekers” in section 94(1) of the 1999 Act, which is that it “covers any 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” (my emphasis added). They explain that “a claim for asylum” is only “determined” under the provisions of section 94(1) of the 1999 Act “on the day on which the Secretary of State notifies the claimant of its decision on the claim or .. if the claimant has appealed against the Secretary of State’s decision on the date on which the appeal is disposed of” (section 94(3)). So it is said by Mr. Cox and Mr. Tam that the words “decides to stop support … before that support would otherwise have come to an end” which are so important for triggering a stoppage appeal in section 103(2) of the 1999 Act cover any decision under challenge of the Secretary of State to stop asylum support before the substantive asylum claim of the asylum seeker had been determined in the ways set out in section 94.
36. I am unable to accept that far-reaching and ingenious submission for three different, but overlapping, reasons. First, it entails re-writing section 103(2) so that it states that “the Secretary of State decides to stop providing support before the person ceases to be an asylum seeker” rather than, as is in fact stated in that section, “the Secretary of State decides to stop providing support before that support would otherwise have come to an end”. There is an obvious and substantial difference between these two wordings and there is no reason why it should be read as Mr. Cox and Mr. Tam suggest because Parliament could, if it so wished, have drafted section 103(2) in the way suggested by Mr. Cox and Mr. Tam, but it clearly decided not to do so. Second, if Parliament had intended that section 103(2) should have the meaning that has been contended for by the Secretary of State and which I have accepted in paragraphs 31 to 33 above, no cogent argument has been put forward to show why Parliament would not have used the wording actually used in section 103(2). Third, no convincing reason was put forward showing that the interpretation of section 103(2) contended for by Mr. Cox and Mr. Tam was what Parliament intended, especially as the Secretary of State was empowered under section 95(9) to provide section 95 support which was subject to conditions. It would follow from the approach of Mr. Cox and Mr. Tam that if the condition to which section 95 was granted were not satisfied the support ceased and a stoppage appeal could be brought, but as I have explained, I am unable to accept that construction.

(ii) The different appeal rights of those asylum seekers with children and those without children

37. Mr. Cox and Mr. Tam contend that an anomaly would be caused if, as appears to be the case, childless couples can bring stoppage appeals if they cease to obtain support because they refuse to move to a dispersal area while on my construction of section 103(2), couples with children are unable to bring such stoppage appeals. I will assume that childless couples can bring a stoppage appeals, if their support ceases because they refuse to move to a dispersal area. It is therefore said by them that Parliament could not have intended that by reason of section 122 of the Act, appellant asylum support seekers with dependant children should be accorded fewer rights of appeal than those without children and so they should both have rights of appeal.
38. The reference to section 122 of the 1999 Act relates to the policy of the Secretary of State that support under section 95 will remain open in dispersal areas to families who fail to travel to dispersal areas because, as I have already explained in paragraph 13 above, of the Secretary of State’s statutory duty under section 122(3) to provide support for children. Unlike the position for single persons, the Secretary of State cannot and does not withdraw section 95 support from families when they fail to travel.
39. Mr. Saini says that the reason why a single person has an appeal if his or her section 95 support is made conditional on moving to a dispersal area but a person with children does not is that they are in factually and legally different positions. He justifies this submission by pointing out that a single person very probably loses his asylum support if he refuses to travel to the designated dispersal area, while the asylum support of a family must be left open and must be available in the dispersal area because of the obligation on the Secretary of State under section 122(3). This, he says, is important because if asylum support is stopped, the childless asylum seeker, because of the terms of the Asylum Support Regulations 2000 (“the Support Regulations”) will encounter great difficulties in making further applications for asylum support. Mr. Saini explains that the upshot of this is that people with families do not have as great a need to appeal as childless asylum seekers because their support has not been stopped and therefore they do not have “less rights” than the single person. He develops this argument by quoting the relevant provisions in the Support Rules which show that in the case of a single person, the Secretary of State may take into account in determining whether to provide or to continue asylum support “the extent to which any relevant condition has been complied with” (Regulation 19). The Secretary of State is entitled to suspend or discontinue asylum support for a single person if he “has reasonable grounds to suspect that the supported person … has failed without reasonable cause to comply with any condition, subject to which the asylum support is provided” (Regulation 20(i)). So it is likely that a single asylum seeker would lose support if he or she refuses to move to a dispersal area. This is significant because of the far-reaching consequence of discontinuing support for a single asylum seeker.
40. One of these is that the Support Regulations provide that if support for an asylum seeker has been discontinued and there has been no material change of circumstances since the suspension or discontinuation, then a fresh application for asylum support need not be entertained unless the Secretary of State considers that there are “exceptional circumstances” which will justify it being entertained (Regulation 21(1)). Thus, Mr. Saini says that the reason why a single person will probably have an appeal and a man with a family does not is that they are in a factually different position: the single person has in fact lost support (in a dispersal area or otherwise) if he or she refuses to move to a dispersal area while the family’s asylum support is not lost but remains and has to remain open and available in the dispersal area. It is not surprising, according to Mr. Saini, that such families should not be entitled to appeal to make essentially a location appeal; they do not need to appeal because their asylum support has not been stopped. Although my provisional view is to agree with Mr. Saini that there is a significant difference between single support seekers and asylum seekers with children, my task is not to see if there is such a difference between the position of asylum support seekers with and those without children, but whether the treatment of the appeals of asylum seekers with children is so anomalous that I should construe section 103(2) so that those with families have the same rights on appeals on support as those without. I do not think that even if there was an anomaly in the treatment of these groups as is contended for by Mr. Cox and Mr. Tam, this would justify reading section 103(2) in a way different from the way that I have outlined in paragraphs 31 to 33 above, especially as its meaning is clear for the reasons that I have already explained. As Lord Scarman explained in Duport Steel v. Sirs [1980] 1 WLR 142 at 168 “in the field of statute law … the Judge’s duty is to interpret and to apply the law, not to change it to meet the Judge’s view of what justice requires”. I consider that the approach to section 103(2) of the Chief Asylum Support Adjudicator and advocated by Mr. Cox and Mr. Tam does not comply with Lord Scarman’s approach.

(iii) The difference between providing and offering

41. Mr. Cox alone attaches importance to the fact that Part VI of the 1999 Act in establishing the asylum support scheme recognises and makes the distinction between “providing” and “offering” asylum support. He points out that section 122(3) of the 1999 Act states that “if it appears to the Secretary of State that adequate accommodation is not being provided for (a child who is a member of the household) he must exercise his powers under section 95 by offering and if his offer is accepted, by providing or arranging for the provision of, adequate accommodation for a child as part of the eligible person’s household” (his emphasis added).
42. He then contends that section 122(4) of the 1999 Act is in similar terms but it relates to the provision of the essential living expenses. Mr. Cox proceeds to submit that the Chief Asylum Support Adjudicator’s jurisdiction under section 103(2) of the 1999 Act must be understood in that context when it states that “if the Secretary of State decides to stop providing support for a person under section 95 before that support would otherwise have come to an end, that person may appeal to an Adjudicator” (emphasis added). His case is that there is a right of appeal in all cases where the Secretary of State begins providing asylum support under section 95 of the 1999 Act but he then stops providing it. The mere fact that the Secretary of State offers to continue to provide support does not, Mr. Cox contends, take the case outside section 103(2). He submits that this is different from the case where the support had only been offered but not yet provided, because that falls within section 103(7), which is, as I have explained, an unimplemented provision relating to mobility appeals and which uses the word “where support under section 95 is to be provided”.
43. The difficulty with that argument is that it ignores the important requirement that a stoppage appeal only arises where the decision under challenge stops section 95 support “before that support would otherwise have come to an end” or put in another way, the decision under challenge has to stop existing and continuing section 95 support. Thus, I am unable to accept this argument of Mr. Cox.

(iv) The undesirability of allowing the Secretary of State to be able to structure his decisions on asylum support so as to ensure that stoppage appeals cannot be brought

44. Mr. Tam was concerned that if the Secretary of State was correct in his construction of section 103(2), it would mean that he could by the way in which he structured his decisions to provide support to families thereby himself determine on the basis of my construction of section 103(2) if such an asylum seeker would have a right of appeal. On my construction of section 103(2), an asylum seeker does not have a right of appeal to the Adjudicator if the Secretary of State made one decision giving asylum support but making support conditional on dispersal, but the Interested Party would have had that right of appeal to the Adjudicator if the Secretary of State had made two decisions, with the first being the grant of asylum support and the second and later decision terminating the support before it would otherwise have ended under the first decision.
45. Mr. Tam says that it is very undesirable that the Secretary of State should have this discretion on how he structures his decisions in the light of their effects on the rights of appeal of asylum seekers with children. He pointed out that in R (Karihahan and Koneswaran) v. Secretary of State for the Home Department [2002] EWCA Civ 1102, Sedley LJ quoted Lord Shaw of Dunfermline in Scott v. Scott [1913] AC 417, 477 where he expressed his concern for leaving constitutional rights in the discretion of a minister by stating that “to remit the maintenance of constitutional rights to the region of judicial discretion is to shift the foundations of freedom from rocks to sand”. Mr. Tam submits that such reasoning would also apply if the Secretary of State’s interpretation was correct and he had the discretion to give section 95 support in a way which would preclude appeals by making merely one decision. The answer to that is in another part of Sedley LJ’s judgment in which he explained that “it is not this court’s job to fill gaps perceived by one party to litigation in Parliament’s provisions”. That is precisely what I consider that the Chief Asylum Support Adjudicator did in this case, but which as I have explained, I do not think that she was entitled to do. It is also relevant that as I have pointed out in paragraph 4 above, the Secretary of State can, pursuant to section 95(9), provide section 95 but only support subject to conditions and that power gives the Secretary of State the statutory right to impose conditions on where the asylum seeker has to live if he is to obtain support.
46. During argument, I was asked if appeals can be brought in cases in which the Secretary of State has issued a standard form letter of the kind set out in the Appendix to this judgment, but which was apparently not sent to the Interested Party. The answer in any particular case would depend on applying the construction set out in paragraphs 31 to 33 above to the facts of the case and, in particular, the structure of the decision. I now turn to apply my construction of section 103(2) to the decision under challenge, which is contained in the Secretary of State’s letter of 21 December 2001.

Application of the construction of section 103(2) of the 1999 Act to the letter of 21 December 2001: the two decisions point

47. Even if I accept the Secretary of State’s construction of section 103(2), Mr. Cox and Mr. Tam both contend that the challenge of the Secretary of State must be rejected as the Secretary of State made two decisions in his letter of 21 December 2001, with the first being to grant section 95 relief and the second being to terminate it. So it is said that the second decision in that letter meant that the Secretary of State stopped providing support before that support “would otherwise have come to an end”. I am unable to accept this argument which ignores the essential and sole condition of granting section 95 support to the Interested Party as set out in the part of the letter quoted in Paragraph 7 above, which was that the support was only granted upon the condition that it “will only be available in a dispersal area”. In other words on a proper reading of the letter, there was only one decision made and that was that asylum support would only be available if the Interested Party moved to the dispersal area. Indeed, the letter of 21 December 2001 explains clearly that the Secretary of State made his decision to grant asylum support, which was based on his duty in section 97 to do so in areas where there was “a ready supply of accommodation”. So this argument of Mr. Cox and Mr. Tam fails. It is unnecessary for me to deal with the alternative argument of the Secretary of State that the provision of asylum support was not stopped at all and that this constitutes an additional reason why the Chief Asylum Support Adjudicator did not have jurisdiction.
48. It has not been argued by Mr. Tam or by Mr. Cox that the Human Rights Act 1998 is decisive or even relevant in showing that the Chief Asylum Support Adjudicator had jurisdiction to hear the appeal of the Interested Party. If such an argument were correct, any asylum seeker with children might well be entitled to sue if he was dissatisfied with any decision about the place at which he was to be located. As I have explained, the Human Rights Act 1998 was used by the Chief Asylum Support Adjudicator in order to justify conferring a right to appeal for the Interested Parties. If a family seeking asylum has a valid legal complaint about the imposition of a condition on which section 95 support will only be provided in a particular location, the family does have recourse to the ordinary courts as the family can challenge the decision by judicial review, either for the conventional public law reasons or because it infringes a particular Convention Right, such as the right to family life. It is not the position that they have no remedy before an independent and impartial tribunal and therefore, I cannot agree with the Chief Asylum Support Adjudicator, who sought to try to provide them with an appeal by artificially re-stating a location appeal as a stoppage appeal.
49. Accordingly, the application must be allowed and subject to any submissions from counsel, it follows that the determination must be quashed as the Chief Asylum Support Adjudicator had no jurisdiction to hear it.


 
APPENDIX

Template letter to be used when a family fails to travel without reasonable excuse

50. The Secretary of State notes that you applied for support under section 95 of the Immigration and Asylum Act 1999 on [give date]. He decided that you qualified for support and made arrangements for you to travel to your accommodation at [give address] on [give date of arranged travel] as a condition of your support.
51. Accommodation is allocated on a no choice basis whilst taking into account the person’s individual circumstances. The Secretary of State is also required by section 97 of the Immigration and Asylum Act 1999 to have regard to providing accommodation in areas where there is a ready supply of accommodation.
52. The Secretary of State notes that you failed to travel as arranged on [give date]. He notes that you have stated that [give reason for failure to travel].
53. [If necessary please adapt the wording that is provided in the Dispersal Guidelines (Bulletin 31)].
54. Having fully considered your [and your dependants’] circumstances the Secretary of State is satisfied that it was reasonable to allocate you [and your dependants] accommodation in [insert name of dispersal town] where there is a ready supply of accommodation.
55. The organisation which is currently providing you with emergency accommodation has no authority to provide support to those persons, such as you [and your dependants], who the Secretary of State has determined are eligible for support under section 95 of the Immigration and Asylum Act 1999.
56. The Secretary of State has considered the extent to which you have breached any relevant conditions of support under Regulation 19 of the Asylum Support Regulations 2000. Having carefully considered your circumstances, the Secretary of State is satisfied that you have breached your conditions of support by failing to travel as arranged without reasonable excuse [where applicable] and he has accordingly decided that you must leave your current temporary accommodation by [enter eviction date].
57. Under section 122 of the Immigration and Asylum Act 1999, the offer of support in a dispersal area remains open.
58. If you wish to take up this offer of support you should contact NASS immediately (telephone number 0208-633-0612) so that arrangements can be made to provide you with dispersal accommodation. You should complete and sign the attached form and forward this to NASS indicating that you accept the offer of support in a dispersal area.
59. You should not wait until your last day in emergency accommodation to notify NASS if you wish to take up this offer and, if you accept this offer after 3.00 p.m. on a working day, NASS cannot guarantee that alternative accommodation can be provided on the same day.
60. Please note that even if you indicate that you wish to take up the offer of support in a dispersal area you will not be allowed to remain in your current accommodation beyond [enter eviction date].