R BH v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Benjamin Douglas-Jones |
| Judgment Date | 10 May 2022 |
| Neutral Citation | [2022] EWHC 1456 (Admin) |
| Docket Number | No. CO/1149/2022 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 1456 (Admin)
Benjamin Douglas-Jones QC
(Sitting as a Deputy Judge of the High Court)
No. CO/1149/2022
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Miss C. Zapata Besso (instructed by Duncan Lewis Solicitors) appeared on behalf of the Claimant.
Mr S. Najib (instructed by the Government Legal Department) appeared on behalf of the Defendant.
THE DEPUTY JUDGE:
Introduction
The claimant has the benefit of anonymity. In this application she has been represented by Miss Camila Zapata Besso. The defendant has been represented by Mr Shakil Najib, who stepped into the breach. I am grateful to both counsel for their assistance, both orally today and for the assistance of Miss Zapata Besso, who had the opportunity of making submissions in writing in advance.
The application I have to deal with today is a small part of a larger picture relating to the claimant's arrival and stay in the United Kingdom as an asylum seeker.
Through her judicial review claim, the claimant seeks permission to challenge the defendant's alleged ongoing failure to provide her with adequate accommodation in accordance with her statutory duty under s.95 Immigration and Asylum Act 1999 (“s.95” and “the 1999 Act”). Through this application the claimant alleges that the defendant Secretary of State is in breach of a mandatory order of 13 April 2022 (“the 13 April 2022 Order”) made by Stacey J. The 13 April 2022 Order was made by way of interim relief. It is in the following terms:
1. “An extension of time is retrospectively granted or, alternatively, relief from sanction is granted to validate the late service of the acknowledgement of service on 8 April 2022;
2. The defendant must, by 26 April 2022 and until further order, provide the claimant with suitable accommodation in or close to the Bethnal Green area, East London area within a reasonable travelling distance to her college the Poplar Campus of New City College, Hackney and Tower Hamlets Colleges.
3. The defendant has liberty to apply to vary or discharge the order at para.1 above on three working days' written notice to the claimant;
4. Any application made under para.2 is to be referred to a High Court judge or a deputy judge for consideration within four hours after issue;
5. Permission for judicial review is granted;
6. The parties to agree directions in the case listed for a 4-hour hearing;
7. Costs reserved. This is a mandatory injunction. Breach of para.1 of this order may give rise to contempt proceedings. Even if an application has been made under para.2 to vary or discharge, the order at para.1 must be complied with unless or until such an order is made” [emphasis added].
Although this order is penal in nature, no issue is taken by the defendant—it is clear that the references to para.1 and 2 in the notice should be to para.2 and para.3, respectively.
Issues
The defendant has provided the claimant with accommodation. The first question is, ‘Is it within a “reasonable travelling distance” to her college where she will sit her GCSE exams from next Monday, 16 May 2022, until they conclude on 23 June 2022?’ The second question is, ‘Is it “suitable”, within the meaning of the order of Stacey J?’ The appropriate remedy in the event that I were to find the defendant to have breached the 13 April 2022 Order is explained by Chamberlain J in Mohammad v Secretary of State for the Home Department [2021] EWHC 240 (Admin): the appropriate course would be to invite the Secretary of State to give a formal explanation of the breach, supported by witness statements and then to allow a period for the claimant and the court to consider whether any further proceedings are necessary.
Beyond that, the claimant also seeks a mandatory order in terms including these:
1. “The defendant must, by 10 May 2022 and until further order, provide the claimant with funding to travel five days a week by public transport from her accommodation to her college campuses, the New City College, Attlee Level Academy and the New City College, Tower Hamlets, and back to her accommodation;
2. The defendant must, by 11 May 2022 and until further order, provide the claimant with suitable accommodation, meaning a single occupancy room in female only accommodation within 30-minutes' travelling (walking) distance to her campuses…”
At the beginning of the hearing the issues were narrowed as follows. Insofar as para.1 of the proposed order is concerned, at my request the solicitor for the defendant very helpfully made inquiries as to whether the defendant would be willing, in the circumstances of the claimant's situation and historical treatment by the defendant, to undertake that financial provision for travel from the claimant's accommodation to the college would be provided. It was quickly confirmed that the defendant would be willing to give such an undertaking. Concurrently, at my request, the defendant's solicitor, again, very helpfully, made inquiries of the defendant as to para. 2 of the proposed order to see if it would be possible to give the court an undertaking to the effect that the claimant would not be required to share her accommodation with any other person until the conclusion of her exams. The defendant confirmed through Mr Najib that such an undertaking would be given if necessary, dependent on the judgment.
As to the appropriate remedy on a finding that the 13 April 2022 Order had been breached, the defendant submitted that the court could infer that it was in good faith and that there would be no need for any formal explanation to be given pursuant to the procedure outlined in Mohammad.
Decision
I indicated, following the hearing this morning, that I would refuse the application for urgent interim relief and these are my reasons for that decision.
Background Facts
The claimant's case is that she arrived in the UK in June 2021. She is 18. She asserts that she is mentally vulnerable. She came to the UK as an unaccompanied, asylum-seeking orphaned child from Eritrea. She endured a traumatic journey to the UK. She suffers from diagnosed post-traumatic stress disorder (“PTSD”) and depression. From August 2021, the claimant was placed in “initial” accommodation under s.95. That accommodation comprised a hotel in Bethnal Green, East London (“the Bethnal Green hotel”). The defendant intended that the Bethnal Green hotel should serve as temporary accommodation before longer term temporary accommodation managed by accommodation providers on behalf of the Home Office (i.e., “dispersal” accommodation) was provided.
From September 2021, the claimant studied five GCSE courses at a local school. That is the New City College, Attlee A Level Academy, E1 0PT and the New City College, Tower Hamlets, E14 0AF, collectively “the college”. I shall refer to the E1 0PT Campus as “the teaching campus” and the E14 0AF Campus as “the exam campus”. I am told by Miss Zapata Besso that the college was within a 30-minute walking distance of the Bethnal Green hotel. The two campuses are in fact a 30-minute walk apart from one another. The claimant is due to sit her GCSE exams at the exam campus imminently, starting, as I have set out already, on 16 May and finishing on 23 June this year.
Whilst living in the Bethnal Green hotel, the claimant developed a support network in the vicinity of the college through local church and NGO connections. On 17 January 2022, the claimant was informed by staff at the hotel that she would be moved; she was not told when that would happen, nor to where she would be moved. She received no correspondence about the move from the defendant.
That day, Asylum Aid sent a letter on behalf of the claimant to the defendant seeking to challenge the possible move.
By 3 February 2022, five further emails had been sent, asking for contact details of those responsible for the proposed move and details of when it would happen, requiring an urgent response. The defendant did not substantively respond. The only response, on 5 February 2022, was from the Asylum Operations Mersey Team, which told Asylum Aid to contact National Asylum Support Service (NASS) Accommodation and Support, or Migrant Help for advice. No contact details were provided. Urgent emails were sent to the Cardiff Financial Support email address on 7 and 8 February 2022, but there was no response to them.
Then, without further warning, on 11 February 2022, the claimant was moved. The circumstances of her move may be characterised as “unfortunate”. That adjective may serve as an understatement and the defendant should recognise that the circumstances must have been very frightening for the claimant. She was not told where she was being taken. She was placed in an unmarked taxi with three men, who were, it seems, also to be provided with accommodation....
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