Public law is about the relationship between the individual and the state and the impact of decisions made by public bodies on some of our most vulnerable clients can be great. With our public law contract from the Legal Aid Agency, we are able to fund judicial review cases challenging the decisions of institutions like local authorities or departments of central government.
We have a very close working relationship with ASIRT and much of the public law work we have undertaken has been with clients referred to us by them. The close working does not end at the point of referral and there has been a lot of collaboration between the organisations to get these important cases up and running.
In April 2014, the law centre issued judicial review proceedings challenging the decision of the First-Tier Tribunal (Immigration and Asylum) to refuse to allow two of our clients an exemption from the £140 tribunal fee for their immigration appeal hearings. In all, four of ASIRT’s clients had applied to appeal their immigration decisions and were arranging the hearings when they were told that they would not be exempt from the fees.
The fee regime for immigration appeal hearings allows for exemptions on the basis of destitution. If you are able to show that you are in receipt of social services support from your local authority under section 17 of the children act 1989, then you should be exempt from the fee.
All four of our clients are single parents with either one or two children and are being supported under section 17. The first-tier tribunal responded to our applications by arguing that, as section 17 support is provided to the child, then the mother could not be exempt from the fees as it was the mother’s immigration appeal not the child’s. We argued that section 17 payments are made in order to promote the well-being of children in need with their families and that it is an artificial construction of the rules in order to try to separate the mother and child for these purposes. The tribunal did not accept our argument but stated that on “an exceptional basis” they would waive the fees in the case of our four different clients. Whilst we had secured a satisfactory outcome for our clients in as much as they were no longer required to pay the fee, we decided, along with our clients, that this was an issue of importance to many other clients in the same situation and one that should be tested by the courts on the basis that the first-tier tribunal’s policy in this case was unlawful.
In November 2014, the Treasury solicitors, acting on behalf of the Lord Chancellor, confirmed that they were not going to contest our application on the basis that they had received ministerial approval to a change of policy in the implementation of the disputed regulation. We are now making arrangements to have this case withdrawn by consent and we are very pleased that the government has now decided to change what was a disastrous policy for our clients in attempting to subvert the fees regime, charge destitute appellants twice their weekly income for their appeal hearing. Undoubtedly, this was an attempt to put more people off challenging their immigration decisions and accessing justice.
The close working relationship between ASIRT and the law centre has enabled us to put these cases together in such a way that was more likely to lead to success.
This case that has just been given permission to appeal to the Court of Appeal. We challenged the Home Office for not using discretion to waive the fee for our client’s citizenship application despite the fact he and his parents were indigent and being supported by the local authority’s social services department. The full judicial review hearing was in March this year where the High Court held that the Home Office had not breached our client’s human rights by not having a fee waiver policy for this type of application. Most other types of application are subject to a fee waiver for those that can show they are destitute but not citizenship applications. We requested leave to appeal this decision to the Court of Appeal which has now been granted. The full hearing is likely to be in the New Year.
Our client had been living in hotel accommodation for two years provided by Sandwell Council social services under section 17 of the Children Act 1989. This was on the basis that the family’s immigration status did not allow them access to mainstream benefits – they had no recourse to public funds. The family have since been granted leave to remain on the basis of their son’s long residence in the UK. The family had been living, studying and working in the UK perfectly legally for many years. They had made an application 4 years ago to stay on the basis that their son had been born in the UK and was 7 year’s old. However, that application was not decided before their son was 10 by which time he was by law a British citizen under the 1981 Nationality Act and entitled to apply for citizenship. However, an application for citizenship in these circumstances will not be accepted by the Home Office unless it is accompanied by a fee of £749.
We say that this unfairly treats children who cannot afford the fee for what is simply an application to acknowledge what is theirs as of right – British citizenship. The appeal has been listed for January 2017.
On 8 July 2015, the government laid amendment regulations in front of parliament in order to reduce asylum support for families. Specifically, the Asylum Support (Amendment No. 3) Regulations 2015 reduced the levels of support to children from £52 to £36.95. It is now a flat rate paid to all supported people in a single adult family of £36.95 each. These regulations came into force on 15 August 2015.
Affected families were informed on 15 July and our client (single parent with 3 children) came to see us shortly afterwards asking for advice on how to deal with a cut in her weekly income of just over £50. We have now challenged the legality of the regulations by way of judicial review in the High Court on the basis that insufficient regard has been given to the best interests of the children and that the review of asylum support does not pay sufficient attention to the difference in essential living needs of children as distinct from adults. We also say that there is a clear differential treatment of the children of asylum seekers compared to other children.
The legal test for financially supporting destitute asylum seekers is to look at whether or not their essential living needs have been met. This test was introduced in 1999 when the Government of the day separated asylum seekers from mainstream benefits and created the asylum support system. Once the test of destitution was passed, financial support was paid at 70% of income support levels. Freezing the levels of payment over the years eroded the value of asylum support to around 50% of income support levels. This refusal to increase levels of asylum support for adults was challenged by Refugee Action and the successful judgment held that the Home Secretary had acted irrationally for the way in which she had reviewed support levels. Unfortunately, the Home Secretary, in her subsequent review, has not altered the levels of asylum support for adults and has now used the same methodology to reduce asylum support levels for children. The review of support levels for children is ‘internal’ and we have not been privy to it. We say that the use of the review for adults in setting the levels for children is flawed and there has been insufficient assessment of children’s essential physical living needs (food, clothing, hygiene) no proper assessment of their essential emotional living needs (intellectual, social, behavioural).