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Failed asylum seeker – accommodation, not support


R (Kiana) v Secretary of State for the Home Department (2010) QBD(Admin) 20/04/2010. [ Note of extempore judgment on Lawtel] [Now full judgment on Bailii]

Mr Kiana came to the UK and applied for asylum. He subsequently lived with his partner and they had a child together. Mr K was provided support under s.95 Immigration and Asylum Act 1999. Following the failure of his application and the subsequent appeals, s.95 support was terminated. Mr K applied for support under s.4 I&A Act 1999 on the grounds that he was destitute. The Secretary if State’s refusal was overturned on appeal and Mr K was offered accommodation with one of the SoS’s ‘target landlords’, separate and away from his partner and child. Mr K refused the offer and the SoS refused further assistance.

On Judicial Review of that decision, Mr K argued that s.4 did not stop the SoS providing support separately from accommodation or, if it did, there was no reason accommodation could not be provided by entering an agreement with his partner’s landlord. Second, in providing accommodation only through target landlords, the SoS forced Mr K to chose between staying with his family and remaining destitute or accepting the offer and leaving his family, as such it was an interference with his Art.8 human rights.

The Secretary of State argued that he could not provide support under s.4 without providing accommodation. He was obliged to ensure that the accommodation was adequate and safe and that this was achieved through the target contracts with landlords, which could be monitored.

Unlike s.95, which conferred a wider power to provide accommodation and/or support, s.4 simply gave a power to provide the failed asylum seeker with somewhere to live. The inferred intention of Parliament was that s.4 was a more limited power, tied to the provision of accommodation.

The s.4 obligations could not have been discharged though an informal arrangement with Mr K’s partner’s landlord, as the SoS was obliged to ensure the accommodation was adequate. That was ensure through the screening and monitoring of target landlords.

There was no Art 8. breach. Mr K was not being separated from his family in the same way as someone subject to a deportation order. Art 8 did not guarantee the provision of accommodation or welfare support. There was a positive obligation on states to provide support where family life was severely inhibited or welfare of children threatened but this did not apply in this case.

The support under s.4 was deliberately designed to be less advantageous than support under s.95 as a part of the legitimate immigration control policy.

Application refused.

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.


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