UK - R (on the application of SG) v Secretary of State for the Home Department, also known as R (on the application of K) v Secretary of State for the Home Department, 22 June 2017
| Country of Decision: | United Kingdom |
| Country of applicant: | Burundi |
| Court name: | Court of Appeal, Civil Division- Lady Justice Hallett, Lord Justice Gross and Lord Justice Irwin |
| Date of decision: | 22-06-2017 |
| Citation: | R (on the application of SG) v Secretary of State for the Home Department [2017] EWCA Civ 433 |
| Additional citation: | Also known as R (on the application of K) v Secretary of State for the Home Department [2017] EWCA Civ 433 |
Keywords:
| Keywords |
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Best interest of the child
Description
Legal principle required to be applied as a primary consideration when taking measures concerning minors in the asylum process. “Any determination or assessment of best interests must be based on the individual circumstances of each child and must consider the child’s family situation, the situation in their country of origin, their particular vulnerabilities, their safety and the risks they are exposed to and their protection needs, their level of integration in the host country, and their mental and physical health, education and socio-economic conditions. These considerations must be set within the context of the child’s gender, nationality as well as their ethnic, cultural and linguistic background. The determination of a separated child’s best interests must be a multi-disciplinary exercise involving relevant actors and undertaken by specialists and experts who work with children." |
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Delay
Description
Failure to act within a certain period of time: often with regard to undue, unreasonable or unjustifiable delay. According to Article 23 of the Asylum Procedures Directive, Member States must process applications for asylum in an examination procedure in accordance with the basic principles and guarantees of Chapter II of the Asylum Procedures Directive ensuring that such a procedure is concluded as soon as possible, without prejudice to an adequate and complete examination. Where a decision cannot be taken within six months, Member States shall ensure that the applicant concerned is either: (a) informed of the delay; or (b) receives, upon his/her request, information on the time-frame within which the decision on his/her application is to be expected (but such information is not an obligation for the Member State to take a decision within that time-frame.) |
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Reception conditions
Description
The full set of measures that Member States grant to asylum seekers in accordance with Directive 2003/9/EC. |
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Material reception conditions
Description
“Reception conditions that include housing, food and clothing, provided in kind, or as financial allowances or in vouchers, and a daily expenses allowance.” |
Headnote:
The reduction in the financial allowance available to child dependants of asylum seekers was not contrary to the requirement that the best interests of the child be a primary consideration in all actions concerning children.
Facts:
The applicant Burundian asylum seeker was a single parent of three dependent children aged 2, 4 and 10. She first entered the UK in 2004; her first asylum claim was refused and she made a fresh claim for asylum in 2010. She was in receipt of asylum support by way of a financial allowance since 2011. In 2015, a team at the Home Office, led by a Mr Bentley, conducted a review of the weekly asylum support payable to child dependants of asylum seekers (the Bentley review) and, based on this review, the Government reduced that support from £52.96 to £36.95. The applicant challenged this decision in the High Court. Her challenge was dismissed and she applied to the Court of Appeal for permission to appeal.
Decision & reasoning:
1. The language of the relevant domestic and EU legislation (the Immigration and Asylum Act 1999 and the Reception Conditions Directive 2003 (RCD)) point to the Government being obliged to provide for the subsistence of children rather than their welfare, notably articles 13.2 and 17 RCD.
2. In relation to the best interests of the child, article 24.2 of the Charter of Fundamental Rights of the European Union (CFREU) provides for this to be a primary consideration, but so too does article 18 RCD. The CFREU therefore takes matters no further than the RCD; and article 18 RCD, combined with articles 13.2 and 17 RCD, continues to point to a subsistence rather than a welfare level of support. The UN Convention on the Rights of the Child, apart from article 3, is not incorporated into UK law and, in any event, takes matters no further. Nor are matters taken any further by section 55 of the Borders, Citizenship and Immigration Act 2009 (which provides for the Secretary of State for the Home Department to discharge her functions in relation to immigration, asylum or nationality having regard to the need to safeguard and promote the welfare of children who are in the UK) or the accompanying statutory guidance ‘Every Child Matters’.
3. It was reasonable for the Government to conclude that the previous amount of asylum support payable to child dependants of asylum seekers was in excess of the level required by the RCD, based on the Bentley review’s reasoning that ‘economies of scale’ were available to such families. The Bentley review had had regard to the best interests of the child as a primary consideration. It was not necessary for a two-stage approach to be adopted, whereby the child’s best interests were considered first; rather the child’s best interests could be considered as part of a holistic analysis. The Government had complied with the UN Committee on the Rights of the Child’s interpretation of the child’s best interests as a threefold concept: a substantive right, an interpretative principle and a rule of procedure. It was compatible with the RCD and within the Government’s province to exclude recreation and toys from the essential living needs for which it provided asylum support, as it only needed to comply with a subsistence standard and as there was a range of support available for free, although the Court regretted the exclusion of toys.
4. Article 8 ECHR takes matters no further.
5. Provided that the Executive has complied with the RCD and not acted irrationally or unreasonably, the assessment of whether something is an essential living need or not is a matter for the Executive and not for the Judiciary.
As a postscript, the Court observed that the delay in dealing with the applicant’s case was deeply unsatisfactory and of real concern.
Outcome:
Permission to appeal refused.
Observations/comments:
The decision of Flaux J in R (on the application of SG) v Secretary of State for the Home Department [2016] EWHC 2639 (Admin) was upheld.
This case summary was written by Alice Winstanley, LLM student in Immigration Law at Queen Mary's University.
Relevant International and European Legislation:
Cited National Legislation:
Other sources:
‘The Bentley Review’
UK Border Agency and Department for Children, Schools and Families, Every Child Matters: Change for Children: Statutory guidance to the UK Border Agency on making arrangements to safeguard and promote the welfare of children: Issued under section 55 of the Borders, Citizenship and Immigration Act 2009 (Office of the Children’s Champion, November 2009)
UN Committee on the Rights of the Child, ‘General comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (art. 3 para. 1)’ (29 May 2013) UN Doc CRC/C/GC/14