§ The Minister for Citizenship and Immigration (Beverley Hughes)Section 55 of the Nationality, Immigration and Asylum Act 2002, which came into force on 8 January 2003, prevents the provision of support to asylum seekers unless the Secretary of State is satisfied that their asylum claim was made as soon as reasonably practicable after arrival in the United Kingdom. Exceptions include families with children and those who can show they would suffer treatment contrary to the European Convention on Human Rights (ECHR). Those with care needs continue to be supported by local authorities under the National Assistance Act 1948.
On 19 February, Mr Justice Collins gave judgment in six test cases. He found that the section 55 decision-making process was flawed, largely on the grounds that there had initially been insufficient investigation of the circumstances in which entry to the United Kingdom was achieved, to give the claimant the opportunity to rebut a suggestion of incredibility and to set out fully the reasons for decisions. He also decided that there will normally be a real risk that to leave someone destitute will violate Articles 3 and 8.1 of the ECHR, and that inquiries should be made to try to establish whether any support is likely to exist. This effectively shifted the burden of proof to the Secretary of State, rather than the asylum applicant, as section 55 had originally intended.
The Home Secretary appealed against the decision of Mr Justice Collins and the Court of Appeal gave judgment on 18 March 2003. The Attorney-General made it clear that the appeal was being made on the basis of the key legal principles, not on the basis of the six individual cases.
At the Court of Appeal, the appeal was dismissed, as expected, in relation to the six cases, the judgment found in favour of the Government on several key issues of legal principle.
The Court's decision makes it clear that the burden of showing an asylum claim was made as soon as reasonably practicable is on the asylum seeker, the ECHR does not require State support to be given automatically to all destitute asylum seekers who have failed to make their asylum claims when required to do so, and section 55 is not incompatible with the ECHR in any respect.
54WSThe Court found against the Government on procedural fairness and drew attention to a number of areas where they considered improvements could be made.
The Home Office has already changed the procedures for making section 55 decisions to meet the Court's main concerns.
The Government will not appeal to the House of Lords against the Court of Appeal decision.
The Court of Appeal judgment means that the Government can continue to operate section 55 as Parliament intended. It gives renewed legal backing for the Government's policy to tackle abuse of the asylum system and send a clear message to those who are abusing the system that they will not be supported at public expense.
The key legal issues have been settled by the Court of Appeal and the Government can, therefore, uphold the robust and fair asylum support system for which Parliament legislated.