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My place, not yours

R (MK & Anor) v Secretary of State for the Home Department (2011) CA (Civ Div) 14/4/2011 [Not on bailii, only a case note on lawtel].

Sorry to be late getting to this one, I was hoping that a full transcript would become available. It hasn’t so I’m relying on a Lawtel note of the judgment.

Briefly, this was an appeal from a judicial review of the Home Secretary’s decision to refuse to provide support such as food vouchers to MK under s.4 Immigration and Asylum Act 1999 powers. MK was a failed asylum seeker. He had begun living with a British national with whom he had a relationship. On exhausting his asylum application, he made a fresh claim and applied for support under s.4. On appeal, the Secretary of State agreed to provide accommodation and food vouchers. MK rejected this, as it would have required him to move out and live separately from his partner and their infant daughter. The SoS refused to provide food vouchers independently of accommodation and MK brought the current JR.

By the time of hearing, the JR was academic as MK’s partner had been granted discretionary leave (but it was the partner who then pursued the JR and appeal, according to the Lawtel note, although I’m not sure how this makes sense). At the JR hearing, the Court held that s.4 IAA 1999 did not empower the SoS to provide food vouchers wholly independently of the provision of accommodation.

On appeal, it was argued that S.4(2) enabled the provision of vouchers whether or not accommodation was being provided and that the SoS had inappropriately fettered her discretion by imposing a requirement that only arrangements involving accommodation would be entered into.

The Court of Appeal held that:

S.95 and s.96 powers expressly provided for the SoS to provide facilities apart from the provision of accommodation. S.4 did not do so and it was hard to see from the wording of s.4 how any provision could be separate from the provision of accommodation. Any such power would have been explicitly conferred. The appellants issue was with how the SoS’ discretion had been exercised, but it was plainly not within the SoS’ powers under s.4 to provide MK with vouchers and allow him to remain living with his partner. S.4, unlike s.95 or s.96 was not a power to alleviate destitution, but specifically to provide accommodation. Appeal dismissed.

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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