The High Court ordered the Secretary of State for the Home Department to immediately boost the weekly support payments made to asylum seekers to £45 in a significant decision rendered at the end of last year, on December 21, 2022. This represents the highest single increase in the rate of asylum support ever and is intended to reflect the rise in living expenses in 2022. R(CB) v. Secretary of State for the Home Department [2022] EWHC 3329 (Admin) is the name of the case.
It is unusual from a constitutional standpoint for the High Court to decide to issue an order that will have significant financial repercussions for the government. It is justified by the unambiguous guidance provided by Home Office civil servants that such a hike is required to guarantee that asylum seekers can satisfy their necessities.
Background
The methodology employed to determine the proper level of weekly payments to asylum seekers as set forth in the ruling has long been the subject of dispute. Overall, the problem is very straightforward. The standard weekly payment for asylum seekers eligible for help under Section 95 was raised from £39.63 to £40.85 on February 21, 2022. Based on inflation in the Consumer Price Index (CPI) for the 12 months ending in September 2021, that reflected a rise of 3.1%.
The government agencies’ standard inflation measurement is the CPI. As inflation reached high levels in 2022, relying on the CPI as it was in September 2021 became increasingly untenable. The CPI rose to 11.1% in October 2022. Payment levels did not account for the fast-rising cost of living because of the decision made earlier in the year to increase asylum support payments using inflation statistics from September 2021. Additionally, it is now widely accepted that low-income individuals effectively experience a different level of inflation and are particularly exposed when the price of food increases faster than the overall rate of inflation because of campaigns this year by Jack Monroe and other anti-poverty campaigners.
CPI Use Vs Alternative Metrics
Since 2014, a unified technique has been used to make judgements on raising the level of asylum support. Food spending is evaluated using information from the Office of National Statistics on what the bottom 10% of the population spends on food, while other expenditures are evaluated using CPI. As a result, when a review was conducted in 2020, asylum support increased by almost 5%, which was more than the current rate of CPI inflation because food prices had increased more quickly than CPI. The Secretary of State deviated from her customary approach in the decision at issue in this case and increased asylum support in accordance with CPI, resulting in a significantly smaller increase.
Mr. Justice Fordham concluded that it was unreasonable and illegal to forgo the tried-and-true technique in favour of a simple CPI uplift:
“In the circumstances of the present case, faced with the reasons articulated for the Uprating Decision, I cannot – as Flaux J did with the 2014/2015 methodology – find that a reasonable justification is present in the reasons for the Uprating Decision adopting CPI. In the end, the clear reasoned explanation in the decision of the Identified Virtues of the Existing Methodology (§71 above), put alongside the absence of any (still less clear or reasoned) explanation of the greater virtues of CPI, and the absence of any (still less clear or reasoned) explanation of a headroom or overpayment rationale, lead me to conclude that the Uprating Decision lacked the justification by careful investigation which was needed for it to be defended as rational.”
Failure To Recognise That An Emergency Lift Is Illegal
The judge also considered the Secretary of State’s refusal to decide on an urgent increase in asylum assistance rates during 2022 in response to sharp inflation increases.
By August 2022, civil servants from the Home Office had written a letter to the Secretary of State outlining their fears that inflation posed a threat to the Home Office’s obligation to ensure that refugees are not left penniless. It presented several solutions to the inflation challenge and suggested making a one-time payment of £96.24. The prospect that the Secretary of State might take no action to resolve the issue was not considered in the guidance, as the court pointed out. The Secretary of State also disregarded more recommendations given by government officials in September 2022 and November 2022.
The judge concluded that it was illegal to delay deciding for four months after obtaining the counsel of government servants:
“In my judgment, the failure to consider this issue and make any decision was unlawful. In public law terms this, in my judgment, was an abdication of function. It was a failure to take into account relevant matters (cf. Refugee Action §117); a failure to consider matters (cf. Refugee Action §118); a failure to take into account a significant factor which the [Secretary of State] was bound to take into account (cf. Refugee Action §131). The context includes that: (a) the [Secretary of State] (as she accepts) owes an ongoing duty; (b) the CPI increases and BOE forecasts were (as the [Secretary of State] accepts) plainly relevant; and (c) an interim review had been undertaken by officials and was put for a decision. Passivity was unlawful.
Officials had not in ATM8.22 expressly put forward a “do nothing” option. I am confident that, had one been set out, it would have said “unlawful”, as it was subsequently (§51 below). Mr Thomann for the SSHD has been unable to put forward any possible defence of the failure of the [Secretary of State] to make a decision, or the failure of the [Secretary of State] to increase income support. There is none.”
Mandated Rule
Unusually, the Court then proceeded to issue a mandate mandating that the Secretary of State raise the asylum support rate to £45 in accordance with the most current civil servant recommendation. The upgrade would be implemented right away, the Secretary of State agreed. The Secretary of State has no choice over the minimal level of asylum support required to meet necessities, as evidenced using a mandatory order in this situation. Effectively, the Court can decide whether the required minimum has been met on its own. The judge’s decision to effectively treat the advice given by civil workers as conclusive on this point may cause some debate.
Consequences
It will be fascinating to watch if the Secretary of State files an appeal, as it is customary when a ruling is harshly critical of the Home Office. If the decision in this case is upheld, the Secretary of State may find it difficult to disagree with the recommendations made by her civil officials in cases where she believes a lesser increase in asylum support is justified. To protect the Secretary of State from legal challenges, the government may even consider passing legislation to provide a statutory framework for decisions regarding asylum assistance uplift, like that which governs decisions regarding uplifts of mainstream benefits and pensions.
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Written by:
Tahir Shahab Khan
Managing Director