MM v Secretary of State for the Home Department: AS/11/02/26112

Asylum Support Tribunal decision of Judge Storey on 4 March 2011.

Refusal of support under Section 4(1)(a). Applicant had never claimed asylum but discretionary leave by reference to ECHR Article 8. The applicant was in detention under Section 3 of the Mental Health Act and her minor child had been taken into care. The respondent found that there were no exceptional circumstances which would trigger their power to provide support under Section 4(1). There was no duty to provide support under Section 4(1)(a). There were no regulations laying down the criteria to be followed in Section 4(1)(a) as distinguished from Section 4(2) and Section 4(1)(c). The lack of stated policy/regulations was found to be neither open nor transparent. Held that while the appellant’s destitution was not accepted, there was no guidance in place to suggest that destitution applied to Section 4(1)(a) applications and that if the respondent wished to apply such a test, the respondent needed to say so. Furthermore, the proper consideration of the welfare of the child had not been made by application of Section 55 of the 2009 Act. The Tribunal would continue to remit appeals under Section 4(1)(a) when refused under Section 4(2) or Section 95 of the Act. The respondent is encouraged to consider the merits of introducing regulations or expanding the current Section 4 policy to encompass Section 4(1) in the interest of clarity, accessibility and consistency of decision making in compliance with ECHR Article 8(2).

Read the full decision in MM v SOS AS_11_02_26112

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