DXK, R (on the application of) v The Secretary of State for the Home Department
| Judge | Deputy High Court Judge Paul Bowen KC |
| Neutral Citation | [2024] EWHC 579 (Admin) |
| Date | 15 March 2024 |
| Counsel | Philip Rule Kc,David C. Gardner,David Manknell,Tom Tabori,Amelia Williams |
| Year | 2024 |
| Court | King's Bench Division (Administrative Court) |
Neutral Citation Number: [2024] EWHC 579 (Admin)
Case No: CO/4585/2020 and AC-2020-LON-003618
IN THE HIGH COURT OF JUSTICE
KING’S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 15 March 2024
Before:
Deputy High Court Judge Paul Bowen KC
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Between:
The King (on the application of) DXK
Claimant
- and -
The Secretary of State for the Home Department
Defendant
Migrant Helpline Limited (t/a ‘Migrant Help’) (A
Charity) (1)
Clearsprings Ready Homes Limited (2)
Interested
parties
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Philip Rule KC and David C. Gardner (instructed by Luke and Bridger Law) for the Claimant
David Manknell, Tom Tabori and Amelia Williams (instructed by the Government Legal
Department) for the Defendant
Hearing dates: 12, 13 and 15 December 2023 with further written submissions dated 2 and 6
February, 11 and 14 March 2024
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APPROVED JUDGMENT
This judgment was handed down remotely at 10.00 am on 15 March 2024 by circulation to
the parties or their representatives by e-mail and by release to the National Archives.
This judgment is deemed to have been delivered in open court. There is a reporting
restriction order in force in respect of this case protecting the anonymity of the
Claimant and her child. Permission to publish this version of the judgment is given
expressly on condition that (irrespective of what is contained in the judgment) in any
published version of the judgment the anonymity of the Claimant and her child must be
strictly preserved. All persons, including representatives of the media, must ensure that
this condition is strictly complied with. Failure to do so will be a contempt of court.
High Court approved Judgment:
R (DK) v. SSHD
Page 2
Deputy High Court Judge Paul Bowen KC:
Table of contents
Introduction .................................................................................................................... 3
Summary of the Court’s decision .................................................................................. 4
Procedural background .................................................................................................. 5
The individual challenge and its successful outcome ................................................ 5
The subsequent progress of the judicial review claim ............................................... 6
Relevant factual background.......................................................................................... 6
A summary of the asylum support decision process prior to the ‘new system’ ........ 6
Enforcement of the AASC ......................................................................................... 9
The growing pressure on the asylum support system and delays in dispersal after
the first Covid-19 pandemic lockdown in March 2020 ........................................... 10
Features of the asylum support system increasing the risk of delays in dispersal of
PNMAS .................................................................................................................... 11
The adverse effects on PNMAS and their infants of long-term IA and delays in
dispersals to DA ....................................................................................................... 14
DMA and the ‘duty to monitor’ ............................................................................... 17
The SSHD’s response: the ‘new system’ ................................................................. 19
The Claimant’s grounds of challenge .......................................................................... 24
The systemic grounds: Grounds 2-4 ........................................................................ 24
The due regard grounds: Grounds 5-6 ..................................................................... 25
Legal framework: general ............................................................................................ 26
Introduction .............................................................................................................. 26
The 1999 Act............................................................................................................ 26
The HNPD Policy .................................................................................................... 31
Discussion: the systemic grounds (Grounds 2-4) ........................................................ 31
Legal framework on ‘systemic challenges’ following A and BF (Eritrea) .............. 31
Academic issues? ..................................................................................................... 34
Decision: systemic challenge under the 1999 Act and HNPD Policy (Ground 2) .. 35
Decision: the HRA Grounds (Grounds 3(a), 3(b) and 4(a)) .................................... 39
Decision: indirect discrimination (Ground 4(b)) ..................................................... 42
Discussion: the PSED Ground (Ground 6) .................................................................. 44
Legal framework relevant to the PSED ................................................................... 45
Academic issue?....................................................................................................... 53
Decision: the PSED Ground (Ground 6) ................................................................. 54
Discussion: s 55(1) BCIA children’s welfare duty (Ground 5) ................................... 59
Legal framework relevant to s 55 BCIA .................................................................. 59
High Court approved Judgment:
R (DK) v. SSHD
Page 3
Academic issue?....................................................................................................... 60
Decision: the s 55 Ground (Ground 5) ..................................................................... 60
Conclusion ................................................................................................................... 62
Consequential matters including relief ........................................................................ 62
Anonymity ................................................................................................................... 63
Annex: Relevant provisions of the AASC contract applying to PNMAS ................... 66
Introduction
1. This case concerns a challenge to the lawfulness of the system of allocation of
asylum accommodation provided by the Secretary of State for the Home
Department (‘SSHD’) under s 95 and s 4(2) of the Immigration and Asylum Act
pregnant and new mother asylum-seekers and failed asylum-seekers (‘PNMAS’).
The asylum support system is administered, in practice, by the United Kingdom
Visa and Immigration Directorate (‘UKVI’) through contracts with third parties
known as Asylum Accommodation Support Contracts (‘AASC’), but the
statutory duties under the 1999 Act remain the SSHD’s.
2. As the facts of this and other cases demonstrate, there have been – and continue
to be – significant delays in the provision of ‘dispersal accommodation’ (longer-
term self-contained provision) (‘DA’) to asylum-seekers and failed asylum-
seekers who are instead inappropriately accommodated in ‘initial
accommodation’ (usually single rooms in hotels on full or half-board) (‘IA’) for
long periods. The evidence is that such delays have a disproportionately adverse
impact upon PNMAS: see paragraph 36, below. The SSHD’s case is that these
delays have been caused by an unprecedented rise in demand since the first
Covid-19 lockdown in March 2020. The Claimant’s case is that these delays have
also been contributed to by systemic failings within the asylum support system
which have been exposed by that increase in demand.
3. The Claimant’s original claim challenged, first, the SSHD’s failure to provide
adequate asylum accommodation, specifically DA, to the Claimant under s 4(2)
of the 1999 Act (the ‘individual challenge’) and, second, his ‘failure to have in
place a lawful system for allocation of [DA] to [PNMAS]’ under both s 4(2) and
(Ground 1) is no longer pursued, the Claimant having obtained the relief she
sought in bringing the proceedings by a move to DA on 13 January 2021. The
claim has therefore become academic as it concerns the Claimant who is barred
from advancing Ground 1 by order of Jonathan Moffett KC DHCJ dated 28 June
2023. However, the Claimant’s reformulated Grounds 2-6 involve challenges to
the lawfulness of the system as it applies to PNMAS as a wider group. These
grounds of challenge fall conveniently under two headings:
4. Grounds 2-4 (the ‘systemic grounds’):
i) Ground 2: Systemic breaches of the SSHD’s duties to provide ‘adequate’
accommodation to PNMAS under s 4(2) and s 95 of the 1999 Act and his
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