Government failed to provide asylum seekers with money for healthcare goods during the Covid pandemic

During the Covid pandemic, thousands of asylum seekers have been accommodated in "full board" hotels, where they have been provided with little to no money to meet their essential living needs. The High Court handed down judgment on Friday 14 January 2022 in R (AXG) v Secretary of State for the Home Department [2022] EWHC 56 (Admin), finding that there “was no evidence that could rationally form the basis for a conclusion that the “healthcare” need was an essential living need that was being met”. The failure to meet healthcare needs was a breach of section 95 of the Immigration and Asylum Act 1999, a provision designed to help asylum seekers stave off destitution.

The decision impacts thousands of asylum seekers accommodated under section 95 of the Immigration and Asylum Act 1999 who were living in hotel accommodation during the pandemic. The Secretary of State has already set up a scheme to compensate asylum seekers during this period, but it is limited to money for clothing needs from 27 March 2020 and for travel from 1 July 2020. The consequence of Friday's judgment is that there was “no lawful basis” for the Secretary of State to exclude the cost of healthcare needs from the back payment scheme.

In an earlier legal challenge handed down the day before AXG was heard, JM v Secretary of State for the Home Department [2021] EWHC 2514 (Admin), Farbey J found that the Secretary of State failed to have proper regard to the communication need of asylum seekers being supported in full board hotel accommodation during the pandemic. The Secretary of State has yet to remedy that aspect of illegality.

The Secretary of State will now be asked to consider providing back payments in relation to healthcare needs and communications needs to compensate those asylum seekers accommodated in hotels between March and October 2020.

AXG, the Claimant is an asylum seeker from Nigeria, and a single mother to a girl who is now six years old.  She was granted asylum support in October 2019, well before the pandemic. For more than 20 months they were accommodated in hotel accommodation. Over that period, they were moved between six hotels in different parts of England and Wales with little to no warning.  As a result, for almost a year, AXG was unable to enrol her daughter in school.  For much of that period, AXG and her daughter received no financial support at all to meet their essential living needs. This had an enormous impact on their day to day living, particularly their health. They also could not buy essential healthcare goods, like medication for common colds, headaches and flus.  They couldn’t buy iron supplements for AXG’s anaemia and cream for her daughter’s rashes or medicine for her indigestion. 

Although the sum withheld from them was no more than £33 over 8 months, the Judge acknowledged that for destitute asylum seekers, any deduction in cash or kind “will be significant” and dismissed the Secretary of State’s argument that some asylum seekers were obtaining such goods from their GPs and medical practitioners, and therefore the need was met.

AXG also argued that the Secretary of State should compensate her for the period that she was accommodated pre-pandemic and was receiving no money to meet her essential living needs whilst in hotels.  This period is not covered by the back payment scheme. The Secretary of State had historically failed to pay any subsistence to asylum seekers placed in hotel accommodation pre-Pandemic and only started to pay some weekly subsistence from late October 2020 onwards.

Although Steyn J found that the Secretary of State’s decision not to extend the back payment scheme to the period before 27 March 2020 was a rational one, she made important observations concerning the nature of the Secretary of State’s duties under s. 95 toward destitute asylum seekers, finding that the s. 95 duty requiring asylum seekers’ essential living needs to be met was no different pre-Pandemic. Thus there was no rational or lawful basis that the Secretary of State had failed to provide financial support to ensure essential living needs were met in hotel accommodation. The Judge held at [70] that:

“I do not accept the Secretary of State’s contention that the anticipated short-stay nature of initial accommodation provides a basis for failing to meet any of the essential needs of a person who has been assessed as entitled to s.95 support until they are transferred into dispersal accommodation. The s.95 duty applies from the moment a determination is made that it is owed.”

Shu Shin Luh of the Public Law and Community Care teams acted for AXG, instructed by Verity Altaras of Simpson Millar’s Public Law Team. Shu Shin is the co-author of the forthcoming Migrant Support Hand Book to be published by Legal Action Group.