NB v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Linden |
| Judgment Date | 03 June 2021 |
| Neutral Citation | [2021] EWHC 1489 (Admin) |
| Docket Number | Case Nos: CO/312/329/354/397 & 402/2021 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 03 June 2021 |
The Queen on the application of
and
[2021] EWHC 1489 (Admin)
THE HONOURABLE Mr Justice Linden
Case Nos: CO/312/329/354/397 & 402/2021
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Tom Hickman QC and Ms Leonie Hirst (instructed by Deighton Pierce Glynn) for the First to Fourth Claimants
Ms Shu Shin Luh and Ms Antonia Benfield (instructed by Matthew Gold & Co) for the Fifth and Sixth Claimants
Ms Lisa Giovannetti QC and Mr David Manknell (instructed by the Government Legal Department) for the Defendant
Ms Zoe Leventhal, Mr Ben Amunwa and Mr Admas Habteslasie (instructed by Liberty) for the First Intervener
Ms Sonali Naik QC and Mr Ali Bandegani (instructed by the Joint Council for the Welfare of Immigrants) for the Second Intervener
Hearing dates: 14 and 15 April 2021
Approved Judgment
INTRODUCTION
Section 95 of the Immigration and Asylum Act 1999 (“IAA 1999”) requires the Defendant to provide “support” to asylum seekers who appear to be destitute or to be likely to become destitute. In appropriate cases, that support must include accommodation which, subject to certain minimum requirements, she judges to be adequate for the needs of the supported person.
In September 2020 the Defendant decided, in the context of an increase in demand for accommodation for asylum seekers, that they could and should be accommodated in Penally and Napier military barracks. These Claims are solely concerned with the latter, which are on a site on the outskirts of Folkestone in Kent (“the Barracks”). The management of the Barracks for this purpose was placed in the hands of Clearsprings Ready Homes Limited (“Clearsprings”), although they, in turn, subcontracted out aspects of its operation.
The Barracks were known to be “basic and slightly run down” and they are surrounded by an 8-foot fence which is topped by barbed wire. Residents would be required to sleep in dormitories with shared bathroom and toilet facilities. The advice of Public Health England (“PHE”) was therefore that the Barracks were not suitable to be used to accommodate asylum seekers given the coronavirus pandemic but that, if they were, steps should be taken to reduce the risk of Covid-19 infection. The extent to which those steps were taken, and the effectiveness of the steps which were in fact taken is in issue in these proceedings. The Defendant recognised, however, that conditions at the Barracks were such that they would only be suitable for healthy adult males, and she introduced suitability assessment criteria which were intended to be used to identify asylum seekers who should not be accommodated there because of their particular circumstances, including their mental or physical health and other vulnerabilities arising from experiences before coming to the United Kingdom.
From 22 September 2020, the number of asylum seekers living in the Barracks grew rapidly. By 1 October 2020 there were 155 residents, and the numbers rose to a peak of 414 in mid-November 2020. The residents were generally sleeping 12–14 to a dormitory. Plywood partitioning divided the sleeping spaces, albeit this did not reach from floor to ceiling, and sheets and/or curtains were used to cover the entrance to each space so as to achieve a degree of privacy. For this and other reasons, according to a report of the Crown Premises Fire Safety Inspectorate (“CPFSI”), dated 30 November 2020, the arrangements at the Barracks failed to protect the occupants from serious or significant risk of harm and action was required to ensure their safety.
On the evidence, it was inevitable that there would be a major outbreak of Covid-19 infections at the Barracks. This happened in mid-January 2021. At this stage there were around 380 residents on site. In response to the outbreak, approximately 100 residents were moved out of the Barracks during the fourth week of January 2021 and the population continued to reduce thereafter.
On 15 January 2021, the residents were told that they were not to leave the site “under any circumstance”. That instruction was reiterated on 28 January 2021 and it remained in place for more than a month. Tensions rose within the Barracks and, on 29 January 2021, there was a major disturbance and a fire was started in one of the accommodation blocks.
The six Claimants are all asylum seekers who were transferred to the Barracks from accommodation in hotels. In the case of five of them, they were transferred there in September 2020. The sixth, OMA, was transferred in November/December 2020, although the precise date is unclear. M was moved out on 29 January 2021 and the other Claimants were moved out on 3 or 4 February 2021. OMA therefore lived at the Barracks for 2–3 months and the other Claimants lived there for nearly 4.5 months.
The evidence in relation to all of the Claimants is that they experienced people trafficking and/or torture prior to their arrival in the United Kingdom and there is evidence in a number of their cases that they had pre-existing mental health issues as a result of their experiences. Under the Defendant's suitability assessment criteria, these factors ought to have disqualified them from transfer to the Barracks. All of them say that they experienced a deterioration in their mental health as a result of their stays at the Barracks and all of them have been formally diagnosed as suffering from recognised mental health conditions including Post Traumatic Stress Disorder and depression. All were transferred out of the Barracks, but only after legal proceedings were threatened or initiated, based on the contention that the Barracks were unsuitable accommodation for them. In the cases of NB, XD and OMA they were transferred by order of the court made on an interim basis. Further details of the circumstances of each Claimant are set out in the Annex at the end of this judgment.
On 17 and 18 February 2021 an inspection of the Barracks was carried out by a team comprising inspectors from the Independent Chief Inspector of Borders and Immigration (“the ICIBI”) and Her Majesty's Chief Inspector of Prisons (“HMCIP”). ICIBI/HMCIP provided the Defendant with initial findings on 23 February 2021 which made serious criticisms of the arrangements at the Barracks and the Defendant responded on 2 March 2021. The initial findings were published on 8 March 2021 and the full report was submitted to the Defendant on 21 March 2021 (“the HMCIP report”). The full report remained highly critical of the decision making in relation to the Barracks and the conditions there.
THE ISSUES IN THE CLAIMS .
At issue in the present case is the Defendant's decision in each of the Claimants' cases that they should be accommodated at the Barracks. The Claimants advance four grounds of challenge. They allege that:
i) The accommodation at the Barracks did not and does not comply with section 96 IAA 1999 read with Directive 2013/9/EC, which sets out “minimum standards” for reception of asylum seekers (“the RCD”), and/or it breached the Defendant's own representations that the accommodation conformed to her general standards for such accommodation set out in the Asylum Accommodation and Support Services contract (“the AASSC”).
ii) The process for applying the Defendant's criteria for selecting people to be accommodated at the Barracks was and is flawed and unlawful, both in relation to (a) the initial decision to transfer asylum seekers to the Barracks, and (b) the monitoring or review of suitability post transfer. This ground is based, in particular, on fulfilment of the Tameside duty and the Public Sector Equality Duty (“PSED”) under section 149 of the Equality Act 2010 (“ EA 2010”).
iii) Accommodating the Claimants at the Barracks, and the conditions to which they were subject whilst there, breached their rights under Articles 2, 3 and/or 8 of Schedule 1 to the Human Rights Act 1998 (“ HRA 1998”), contrary to section 6 and 7 of that Act.
iv) There were periods during which the restrictions on the Claimants' movement amounted to false imprisonment at common law and/or breach of Article 5 of Schedule 1 to the HRA 1998. In particular, they allege that there was a 10pm to 6am curfew in place at all material times prior to the instruction on 15 January 2021 not to leave the Barracks at all, and they say that that instruction itself amounted to imprisonment and deprivation of liberty. But they also say that there was a particular instance of detention of OMA between 18 and 25 January 2021 and they refer to other alleged instances of detention on 26 October, 23–25 November and 28 December 2020.
The Claimants' pleaded fifth ground – breach of the PSED — was abandoned as a free-standing ground.
The Claimants seek various forms of declaratory relief, and damages for breach of their human rights and false imprisonment.
THE PROCEEDINGS
Proceedings were issued in each of the six cases between 27 January and 4 February 2021 and an expedited permission hearing was directed by Chamberlain J. That hearing took place on 16 February 2021.
The grant of permission was initially resisted by the Defendant and the first witness statement of Mr Lawrence Williams, dated 11 February 2021, was filed for this purpose. However, I understand that at the beginning of the permission hearing the court was informed that the Defendant withdrew her...
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