Asylum support: all negative cessations (evictions) are currently halted – 17th May 2021

Important news re cessation and refusals of asylum support via ASAP and Vicky at Migration Yorkshire

1. All negative cessations are currently halted.

In an unexpected turn of events, the court has granted an injunction preventing the Home Office from making any decision under the most recent cessation policy (see email from Alice on 26^th April explaining that negative cessations were resuming). We don’t yet have a copy of this injunction but will circulate as soon as possible. This is a temporary stay, until the courts decide on the lawfulness of the policy. The dates for the next hearing has yet to be finalised but may be 27^th and 28^th May.

This means that, as of 6^th May, the Home Office can’t make any decisions to cease support in :

• S95 cases where the person has become ARE
• S4 cases where the person was relying purely on the Covid situation for their entitlement to support (so called Covid only cases).

However, this will not protect anyone from eviction if the decision to stop their support was made before the 6^th May which is the date that the order was made.

That’s the headline – now for a bit of context (not essential reading but may be of interest to some):

On 23^rd April 2021 the Home Office wrote to stakeholders announcing that negative cessations would resume for s95 cases in England but not in s4 cases because of ongoing litigation (the letter was previously sent out by Alice but I’ve re-attached it for convenience).

This litigation is a case called QBB and others. There are four claimants in this case, represented by Kathy Cosgrove (Greater Manchester Law Centre), Sasha Rozansky and Will Russell (Deighton Pierce Glynn Solicitors) with Simon Cox, Daniel Clarke and Donnchadh Greene of Doughty Street Chambers acting as counsel. Kathy/Sasha please correct what I have said if I’ve misrepresented the situation.

In QBB the courts are being asked to consider whether, in coming to a decision to resume cessations in April this year, the Home Office properly considered the public health context and undertook proper assessments under the Equality Act. The case also includes a question relating to the asylum support tribunal’s (the AST) powers. If the court decides in the Home Office’s favour, the April policy stands and cessations can resume. If the court decides in the claimants’ favour the Home Office will have to redraft its policy so that it is lawful.

The case was listed for trial on 5^th and 6^th May. At the beginning of the second day, the Home Office were asked by the judge to explain under what powers they had been supporting people with no “usual” s4 or s95 entitlement since March 2020. They were not able to give a clear answer. They asked the judge to grant them an adjournment so they could answer this question. This was duly (and very reluctantly) granted but the cost to the Home Office was this injunction.

1. Applying for s4 support in Covid only cases

So what about refused asylum-seekers who are currently destitute and don’t have any “usual” s4 entitlements (so called Covid only cases)?

The situation there is complicated and the right course of action will very much depend on what your client’s circumstances and wishes are.

On the 26^th April 2021 the Principal Tribunal Judge of the AST made a decision in a case called AM with regards to those applying for s4 support on Covid only ground (the statement of reasons, attached, is dated 29^th April 2021). AM is represented by Sasha Rozansky and Will Russell (Deighton Pierce Glynn Solicitors) and Simon Cox and Donnchadh Greene of Doughty Street Chambers as counsel.

In this case the Principal Tribunal Judge finds that destitute refused asylum-seekers are entitled to support on Human Rights grounds until 21^st June 2021. Para 74 reads:

The appellant is entitled to accommodation under section 4(2) and regulation 3(2)(e) because he is destitute and 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. In my judgment there is no objective justification for excluding failed asylum seekers who are not already accommodated from the category of the public. The appellant is entitled to accommodation only during the COVID-19 pandemic, in times of a very high alert, and national lockdown on public health grounds. Once lockdown comes to an end, which is presently expected to occur on 21 June 2021, the appellant’s entitlement under regulation 3(2)(e) will come to an end, unless he can satisfy one or more of the conditions in regulation 3(2) of the 2005 Regulations. 

There were 41 people who had lodged appeals to the AST against refusals of s4 support and whose appeals were stayed behind the AM case. These appellants should all have their appeals considered between 11^th and 19^th May and we anticipated that everyone will be granted support. My colleague Lilly has been in touch with advisers assisting in these 41 cases but we’ve had some problems with emails recently so if you’ve not had any emails, please do contact her ([email protected]).

However, for those who have not yet made an application the situation is a little bit more complicated:

• As things stand, until 21^st June, destitute failed asylum-seekers are entitled to support on Covid only grounds thanks to the decision in AM.
• However, the Home Office have issued a JR challenge against the tribunal’s AM decision and asked for an expedited hearing. We are not sure yet when that will be held but the courts have ordered that this happen as soon as possible after 19^th May, so this may well be around the same time as the QBB hearing.
• Anyone who applies for s4 support now will most probably have their application refused by the Home Ofice and will need to appeal.  We estimate that these appeals won’t be heard until early June (assuming the application is made today and there are no delays in decision-making/serving!!) by which time the courts may have quashed the AM decision.
• But even if the decision in AM still stands, this only allows people to get support until 21^st June (in reality support may well be extended beyond that date because of the time that it will take to actually discontinue a person’s support given they have a grace period and a right of appeal. Added to which the discontinuation policy will in the first instance apply only to England).
• A further complications arises if AM is still valid law but the courts decide, in the QBB case, that the Home Office’s cessation policy is valid and does so before 21^st June. Individuals will find themselves in the absurd situation whereby their s4 support is granted by the AST but then immediately discontinued by the Home Office under the cessation policy (again this will be subject to the grace period and a right of appeal).

The upshot is that we are not sure what to advise clients beyond: technically they can still apply for support. But they may not get support (even though right now they are entitled to it) or, if they do, it won’t last very long. Of course the circumstances of an individual case matter and it could be that it is in your client’s interest to apply for support. Please call our advice line for further advice.

Of course, if the last few weeks are anything to go by, everything could change. For instance Covid cases may start rising again and we enter a further period of lockdown or the injunction is extended because of developments in the case. We will of course keep you updates on the latest developments.

All the best,

Marie-Anne Fishwick, Policy and Research Manager, Asylum Support Appeals Project (ASAP)