This note concerns the operation of sections 4(1)(a) and (b) of the Immigration and Asylum Act 1999 (the 1999 Act) and whether there is a policy or criteria developed by Secretary of State to determine entitlement given the comments and reasons of the Principal Judge in cases AS/11/02/26112/JH, AS/11/03/26412/JH, AS/12/08/28780/SK, and AS/12/05/28619 which raise the question as to how the Asylum Support Tribunal is to approach the Secretary of State’s decision to refuse support when faced with appeals from very vulnerable applicants.
Brief legal framework
Briefly section 4 of the 1999 Act as amended by section 49 of the Nationality, Immigration and Asylum Act 2002 and section 10 of the Asylum and Immigration (treatment of claimants etc) Act 2004 provides:
[(1)] The Secretary of State may provide, or arrange for the provision of, facilities for the accommodation of persons—
(a) temporarily admitted to the United Kingdom under paragraph 21 of Schedule 2 to the 1971 Act;
(b) released from detention under that paragraph; or
(c) released on bail from detention under any provision of the Immigration Acts.
The basic criteria to qualify for support under section 4(1) (a) and (b) is to a person temporarily admitted to the UK so it is a misnomer to refer to this as asylum support as those entitled may not be asylum seekers, for example they could be overstayers.
Section 4(1) provides the Secretary of State with the power to provide support but there is no duty to provide it. This is contrasted to subsection 4(2) which are specifically aimed at failed asylum-seekers but there is nothing within section 4(1)(a) or (b) to prevent a failed asylum seeker with temporary admission applying for support under those sections. Unlike section 4(2) there is no statutory provision in Regulation 3 of the Immigration and Asylum (Provision of Accommodation to Failed Asylum-Seekers) Regulations 2005 that the applicant has to be destitute as per section 4(2) support.
Although not referred to in this statute in the exercise of the discretion the Secretary of State must discharge the duties under section 55 of the Borders, Citizenship and Immigration Act 2009 to have regard to safeguard and promote the welfare of children in the UK (see also ZH (Tanzania) (FC) (Appellant) v SSHD (Respondent)  UKSC 4 and “Statutory guidance to the UK Border Agency on making arrangements to safeguard and promote the welfare of children”). Further the Secretary of State cannot exercise her discretion in such a manner which would constitute a breach of the applicant’s human rights as guaranteed under the European Convention of Human Rights per the Human Rights Act 1998 and possibly if the issue concerned a EU citizen exercising a treaty right should the issue arise. This is the redline which the exercise discretion should not cross.
It may be the case that case law creates a presumption that the applicant be destitute per R(K) v London Borough of Lambeth  EWCA civ 1150 per Lord Phillips at  and  where it was observed that the position of a foreign national awaiting a determination of her claim to a right of residence in the UK could not be equated with that of an asylum-seeker who has a well founded fear of persecution and who may establish refugee status:
.”…there is no obvious reason why [the foreign national] should expect to receive support from this country, rather than in her home State, pending the determination of her claim to a right of residence.”
Albeit there has been a concession on this point by an applicant in one case which was accepted by the tribunal this point has not been fully argued. Further R(K) is not a case directly on the point and if the Secretary of State or Parliament requires it to be so then it should be prescribed for in legislation or policy guidance and not left to applicant’s to decide the Secretary of State or Government’s policy as at present as a matter of statutory interpretation in comparison to the requirements for 4(2) support the statute does not impose such a limit on 4(1).
The distinctions between 4(1)(b) and (c) are;
a. subsection (1)(b) is the exercise of discretion from release from detention by the Secretary of State for someone with temporary admission. There is no mechanism to apply for bail to a tribunal only potentially for judicial review of the continued detention;
b. subsection 1(c) concerns bail under “any provision of the Immigration Acts”. Thus a key distinction is a right of application and a scrutiny by the tribunal and is not limited to temporary admission. The clear difference is that the Secretary of State has issued policy in respect of this subsection but not in respect of (1)(b).
How does the Secretary of State exercise the discretion?
The Secretary of State has not published any guidance or regulation on the exercise of discretion under 4(1)(a) or 4(1)(b). The consequence of this is that an applicant is unaware of the “qualifying” conditions for a successful application and how the discretion will be exercised by the Secretary of State. Furthermore in respect of a review of the decision the Tribunal is left somewhat blind as to whether the Secretary of State has lawfully exercised her discretion to grant or refuse support.
The problem for the Tribunal is (1) is the decision merely quashed and remitted for reconsideration; (2) in the absence of cogent and law policy guidance should the Tribunal always now treat it is a “de novo” matter and make a fresh decision without remission; (3) could this mean a change in practice and procedure of the Tribunal to hold oral hearings which would be time consuming and costly; and (4) is the failure of the Secretary of State to publish guidance simply unlawful.
The Asylum Support Appeals Project has made a Freedom of Information Request under request number 23140 in respect of section 4(1)(a) and a reply was obtained on the 29 June 2012 which confirmed there is no other policy guidance or instructions in respect of the use of section 4(1)(a) other than a document which is a template letter available to case workers to consider when dealing with applications. As yet no similar Freedom of Information request has been made in respect of section 4(1)(b).
The first interesting aspect of the response is that there is only one template letter and that is a refusal letter. There is no corresponding “acceptance” letter. I will return to the content of the letter later. It is suggested from the content of the Freedom of Information request that this letter is the only “policy” document. From the very fact there is only one template letter then it must be the case that the base policy is to refuse application all applications.
It appears that the policy for 4(1)(a) if any is embodied this letter. The policy in this letter and as repeated before the Tribunal is that:
a. the applicant has to demonstrate “exceptional or compelling circumstances that requires the Secretary of State to exercise her discretion to provide you with support under section 4(1)(a) of the 1999 Act….The Secretary of State has the power to provide support under section 4(1)(a) but does not have a duty to do exercise this power and she does not routinely do so”.
b. the limitations applied to the exercise of this discretion are a consideration of ECHR rights, especially Article 8 and 3 and the best interests of children.
Although no request has been made in respect of 4(1)(b) it is presumed a similar refusal letter and policy applies even though the issue of detention may be a relevant consideration in providing support. Clearly the policy embodied in this letter and reported in the tribunal decisions referred to at the outset is not open or transparent and lacks any structure.
Neither the applicant nor the Tribunal can know or have any clear idea as to what constitutes an exceptional circumstance and coherent grounds of appeal cannot readily be formulated by an applicant other than in circumstances of breach of a convention right or best interests of children and Tribunal is put in difficulty as it is required to take account of all relevant matters and clearly the lack of a transparent policy in the exercise of this decision making makes it very difficult.
The Secretary of State was given the power to grant such accommodation by Parliament. It seems, in part, to deal with the turf wars between Local Authorities and the Home Office to provide accommodation and support to person from abroad. The fact that Parliament so legislated means this is not an “elective” power which can be ignored, for example Sedley LJ in Mirze and others, R (on the application of) v SSHD  EWCA Civ 159  stated:
“it is there for a purpose which Parliament has made part of its legislative policy and it is to be exercised accordingly except where there is lawful reason not to do so”.
In addition reading some of the Tribunal decision the Principal Judge of the Tribunal has made repeated requests for the Secretary of State over a period of at least 16 months, the last request being the 26 September 2012, for publication of guidance in respect of both section 4(1)(a) and (b) but there has been no response and the same position is maintained on base policy.
The question remains is the Secretary of State operating a secret policy of refusal. This in itself would be unlawful. In R v Secretary of State for Education and Employment Ex Parte Begbie  1 EWCA Civ 2100, Lord Justice Sedley said:
“there are today cogent objections to the operation of undisclosed policies affecting individual entitlements or expectations. It is right and proper that a policy…be published…The necessary consequence and indeed purpose of publication is that people will, where appropriate, rely upon it.”
Unless the Secretary of State informs persons entitled to support under section 4(1)(a) or (b) of her practice and procedure for handling such claims there is a clear lack of certainty and this failure, in my view is unlawful (see R(Lumba) v Secretary of State  UKSC 12  per Dyson SCJ).
What should practitioners and the Tribunal do?
The Tribunal is put in clear difficulty by this failure by the Secretary of State. If the Tribunal were to refuse any appeal against refusal for support relying on the Secretary of State’s decision is that unlawful per se given the Secretary of State may be relying on either no policy, or an unlawful policy?. The answer to this question in my view is the remedy the Tribunal can give. It is my view that in the absence of the policy guidance from the Secretary of State the Tribunal should not remit the case back for reconsideration by the Secretary of State as it would seem unreasonable or irrational to do that when there are concerns about the absence of policy or guidance on decision making. Namely, why remit back to a decision maker who has no lawful policy on decision making and should practitioners point this out when making submissions to the Tribunal?
The answer may be that in the absence of policy or guidance it is down to the Tribunal to substitute its decision in all cases for that of the Secretary of State and that practitioners should invite the Tribunal to make this decision in all cases. In the policy vacuum the answer may be for the Tribunal to develop its own guidance and jurisprudence. Of course in order to ensure a fair hearing of evidence in such circumstances the Tribunal may have to call oral evidence and there may have to be provision for advocates and extra funding combined with increasing risk of further litigation and delay.