CO/6401/2006 
Neutral Citation Number: [2007] EWHC 2334 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Date: Monday, 10 September 2007
 
B e f o r e: 

MR JUSTICE HODGE
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Between: 
THE QUEEN ON THE APPLICATION OF BARHAKOMERWA MATEMBERA 
Claimant 
v 

SECRETARY OF STATE FOR THE HOME DEPARTMENT 
Defendant 
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MR M WESTGATE (instructed by The Rights Partnership of Birmingham) appeared on behalf of the Claimant 
MISS E LAING (instructed by Treasury Solicitor) appeared on behalf of the Defendant 
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J U D G M E N T 
1.	MR JUSTICE HODGE:  The support provided by the United Kingdom for those involved in the asylum process is a matter of considerable public interest and of great concern to those individuals in that process.  There is a comprehensive regime for the provision of accommodation and financial support for those who have claimed asylum and have not as yet had their claims determined.  That support can continue until the appeal rights have been exhausted.  These provisions mean that the United Kingdom meets its international obligations to those who seek protection from what they say is persecution in their countries of origin.  
2.	These provisions end if the asylum claim fails.  Once any claim for asylum has been determined adverse to the claimant he may well not leave this country.  Some then claim to be destitute.  Provision has been made in the legislation for the Secretary of State ‑ here the defendant ‑ to provide accommodation alone to those who are no longer asylum seekers but who are accepted by her as being genuinely and broadly destitute.  This case raises the issue and extent of the defendant's obligations to make temporary provision for those who are no longer asylum seekers, who assert they are destitute but where the Secretary of State has not as yet been able to make a decision on their claim to be destitute.  
3.	It is said, and I accept, that in priority cases, of which this is likely to have been one, the defendant's policy is to decide the application within 48 hours.  The evidence from those advising the claimant is that such decisions are very rarely made in that timescale.  One witness' statement  suggests that 83% of cases are not decided within the two days, and that the average time taken is 8.5 days.  
4.	On 26 July 2006 this claimant Bahakomerwa Matembera  applied for accommodation under the provision of Section 4 of the Immigration and Asylum Act 1999 as amended.  A good deal of information was, it seems, put to the Secretary of State's staff by the claimant's solicitors.  No decision was made.  An application was made to Ramsey J on 9 July 2006 within proposed judicial review proceedings.  He ordered that accommodation and board be provided virtually forthwith.  This was done.  These proceedings were then issued.  The applicant has since been accommodated and, more recently, accommodated under provisions of Part VI of the Immigration and Asylum Act 1999.  That has been on the basis that fresh evidence has been supplied by him.  This evidence has been accepted by the Secretary of State as a new claim for asylum.   That claim has not as yet been determined.  Hence, as Owen J said when refusing permission, this claim is now academic so far as this applicant is concerned.  Today I am dealing with an oral renewal of the application for permission.  
5.	Mr Westgate submitted, on behalf of the claimant, that the claim is however arguable because what happened in this case happens on too many occasions.  There are delays in this process.  The court, it is said, ought to intervene and declare that the defendant's system of determining applications under the provisions of Section 4 of the Immigration and Asylum Act 1999 is unlawful.  The Secretary of State is failing to make decisions within a reasonable time.  The claim ought, it is said, to be amended to ensure that the decision‑making system is identified so that the  court can rule on its lawfulness.  
6.	I do regard the claim as academic for the claimant.  Ought then the court to grant permission exceptionally on the basis that there is an important principle to be argued?
7.	The power to grant accommodation in these kind of cases is contained in Section 4 of the 1999 Act.  So far as material, Section 4 (2) reads:
"(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.
 (3) The Secretary of State may provide, or arrange for the provision of, facilities for accommodation of a dependant of a person for whom facilities may be provided under sub‑section (2).
 (4) The following expressions have the same meaning in this section as in Part VI of this Act (as defined in Section 94) ‑
 (a) asylum‑seeker, 
 (b) claim for asylum, and 
 (c) dependant.
 (5) The Secretary of State may make regulations specifying criteria to be used in determining ‑
 (a) whether or not to provide accommodation, or arrange for provision of accommodation, for a person under this section;
 (b) whether or not to continue to provide   accommodation, or arrange for the provision of accommodation, for a person under this section."
8.	In contrast, the provisions of Part VI are significantly more wide ranging.  In particular Section 98 in Part VI of the Immigration and Asylum Act 1999 provides:
"(1) The Secretary of State may provide, or arrange for the provision of, support for ‑
 (a) asylum‑seekers, or 
 (b) dependents 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.
 (3) Sub‑sections (2) to (11) of Section 95 apply for the purposes of this section as they apply for the purposes of that section."
Section 98 is under the rubric "Temporary Support".
9.	It is accepted by both parties that Section 4 is narrower than the provisions of Part VI.  The class of people to whom it applies is narrower.  The nature of support provided under Section 4 is narrower.  
10.	I should also read at least part of the Immigration and Asylum (Provision of Accommodation to failed Asylum Seekers) Regulations 2005 SI 2005 No 930 under the rubric "Eligibility for and provision of accommodation to a failed asylum‑seeker".  Regulation 3 provides:
"(1) Subject to Regulations 4 and 6, the criteria to  be used in determining the matters referred to in paragraphs (a) and (b) of Section 4 (5) of the 1999 Act in respect of a person falling within Section 4 (2) or (3) of that Act are ‑
 (a) that he appears to the Secretary of State to be destitute, and 
 (b) that one or more of the conditions set out in paragraph (2) are satisfied in relation to him." 
The important provision of sub‑paragraph (2) of Regulation 3 is (e) ‑
"(e) the provision of accommodation is necessary for the purpose of avoiding a breach of a person's  Convention rights, within the meaning of the Human Rights Act 1998."
11.	Mr Westgate says that there is nothing in the legislation that limits the Secretary of State's powers to grant interim support.  Nothing prevents the provision of temporary accommodation before the determination on the substantial right to accommodation on the basis of destitution.  Further he says in many cases, and I take it that applied in this case, the claimant will be close to a level of destitution  where his Article 3 rights ‑ being subjected to inhuman and degrading treatment ‑ are engaged.  Thus the Human Rights Convention is engaged and indeed of course observed by Regulation 3 (2) (e) of the Regulations I have just read.  The defendant should have power to prevent a breach of any claimant's rights by provision of temporary accommodation is the essence of Mr Westgate's case.  
12.	I accept it is not accidental that there is no power to provide temporary accommodation under Section 4.  Powers to accommodate only exist once a decision has been taken and it appears that the appellant is, in broad terms, destitute.  The section provides for regulations to be made.  They have been made.  They make no provision for temporary accommodation.  
13.	There is a difference between those who are failed asylum seekers and those whose claims have not been finally determined.  Those who need the protection of the United Kingdom are entitled to make claims to be considered in a way that does not lead to a prospective breach of the European Convention.  The same does not apply to those who make claims for asylum and have lost under Section 4.  
14.	Mr Westgate argues that the lack of provision of temporary accommodation is not Human Rights Convention compliant, and the legislation must be interpreted so those rights are not compromised.
15.	I accept Miss Laing's view that the conditional duty to provide temporary accommodation under Section 4 has not yet been established.  In effect, such provision is one which Parliament has deliberately chosen not to make.  Essentially  the scheme for provision of support for those who are in the asylum field have to be construed as a whole.  Here there is a detailed scheme.  There is a main duty to support asylum seekers and a less comprehensive scheme where, after an adverse asylum decision, there is a danger of destitution.  There is no room for a power to provide temporary support and there is certainly nothing in the scheme which leads to a breach of Convention rights.  
16.	What might lead to a breach of Convention rights for those who appear to be at risk is long delay in the Secretary of State assessing claims under Section 4.  In this case that was prevented by the intervention of this court.  It should not be necessary for applicants to resort to the use of  judicial review on the basis of the Secretary of State being slow to decide the application.  
17.	In my judgment it is incumbent on the Secretary of State to put in place a system which deals specifically with the problem.  The sparse evidence I have in this case suggests the system is not working properly and attention from the authorities is needed to sort that out.  However I do not propose to grant permission.  As indicated, the claimant stands to gain virtually nothing from this case.  The problem that it highlights is not, in my judgment, amenable to solution by anyone in these courts.  The issue is fact  sensitive in every case.  The Secretary of State, through her officials, must act properly and promptly.  It is the duty of government to ensure that happens.  As Owen J said when refusing permission to review on the papers:
"(a) It is unarguable that the defendant is obliged to determine urgent claims for support under section 4 ..... "
18.	I hope this case leads to a significant improvement in the timetable for such decisions both individually and on average.  
19.	As a coda I add that if a duty to grant temporary accommodation existed it would create another administrative problem.  Every refusal of temporary accommodation would lead to an appeal and thereafter appeals from appeals if the decision goes against the claimant.  Failure, if such it be, of the Secretary of State to decide these cases promptly enough can be cured by administrative action on a case‑by‑case basis or, if needed, by way of applications to this court.  But the courts are not the right body to impose any scheme of operational decision‑making under Section 4 on the Secretary of State as, by implication, the claimant argues for.  I do not regard the claim as arguable and permission is therefore refused.  
20.	Are there any other matters?
21.	MISS LAING:  I think it would be helpful if your Lordship could order an expedited transcript so your comments can be provided as soon as possible. (Judge confers with shorthand writer)
22.	MR JUSTICE HODGE:  Within a week.
23.	MISS LAING:  Can I ask for costs on the basis that I think the claimant has funding?
24.	MR WESTGATE:  I cannot object in principle.  The claimant is publicly funded.  I would ask for an order for detailed assessment of the claimant's costs.
25.	MR JUSTICE HODGE:  Costs to the Secretary of State, the usual order in relation to publicly funded costs.  Do you want whatever the relevant order is, that your costs should be dealt with?
26.	MR WESTGATE:  Yes.  There is one further matter.  The claimant will want to consider the implications of your judgment.  In the event that the claimant wished to take the matter further, would you extend the time for making application to the Court of Appeal in this matter until after your judgment ‑ ‑ ‑ ‑ ‑
27.	MR JUSTICE HODGE:  You can make an application straightaway and I will fill out the form.
28.	MR WESTGATE:  You can neither grant or refuse permission to appeal to the Court of Appeal.
29.	MR JUSTICE HODGE:  I do not have to.  It is not an appealable decision then?
30.	MR WESTGATE:  It is appealable but only the Court of Appeal can give permission.  What you can do is to extend time. 
31.	MR JUSTICE HODGE:  How long do you want it extended?  Is it 21 days?
32.	MR WESTGATE:  No.  It is normally seven days.  Given you have directed a transcript within seven days, it would be useful to have the transcript in order to make a decision.
33.	MR JUSTICE HODGE:  What do you want ‑ 14 days?
34.	MISS LAING:  I do not object.
35.	MR JUSTICE HODGE:  I extend time for the application to be made, if so advised, by the claimant to the Court of Appeal by seven days.
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