R (MQ) v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Bird |
| Judgment Date | 07 February 2023 |
| Neutral Citation | [2023] EWHC 205 (Admin) |
| Docket Number | Case No: CO/1735/2022 |
| Court | King's Bench Division (Administrative Court) |
[2023] EWHC 205 (Admin)
HIS HONOUR JUDGE Bird
(Sitting as a Deputy Judge of the High Court)
Case No: CO/1735/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
SITTING IN MANCHESTER
Zoë Leventhal KC & Alex Shattock (instructed by Deighton Pierce Glynn) for the Claimant
Alan Payne KC (instructed by the Government Legal Department) for the Defendant
Hearing dates: 20 th October 2022
APPROVED JUDGMENT
Introduction and Overview
The Defendant (“the SoS”) has a statutory obligation (under Part VI of the Asylum Act 1999) to provide appropriate support (which might include accommodation) to destitute asylum seekers in the United Kingdom until such time as their asylum claims are resolved. Interim (or emergency) support will be granted in appropriate cases whilst the SoS considers the merits of an application. Accommodation provided otherwise than on an emergency basis is known as “ dispersal accommodation”.
The claimant was born in Jordan. She speaks Arabic and has confirmed that she cannot speak or read English 1. She and her 2 young children sought asylum and were granted the right to initial accommodation on 5 January 2022. They were accommodated in a hotel in Rochdale. On 21 February 2022, the claimant applied for full support. The application was granted on 28 February 2022. The claimant and her family remained at the hotel but joined the queue of those waiting for “ dispersal accommodation”.
On 29 March 2022 and again on 4 May 2022, the claimant submitted a Pre-action Protocol (“PaP”) letter asking that her claim for dispersal accommodation be expedited (allowing she and her children to jump the queue). Both requests were refused.
On 4 May 2022, because of a flood at the first hotel, the claimant and her children were moved to a hotel in Preston. Proceedings were issued on 16 May 2022 and on 30 May 2022, after the Court had made an interim order, the claimant and her children were moved to dispersal accommodation where they remain.
The structure of this judgment is as follows:
a. Section A: The challenges advanced by the claimant.
b. Section B: Three initial procedural matters: the extent of the claimant's case, the extent to which the claimant's evidence complies with the CPR and whether certain expert evidence should be admitted.
c. Section C: The conditions at Hotel 1 and Hotel 2 and the problems and difficulties encountered by the claimant and her children in some detail.
d. Section D: A summary of the complaints relating to conditions under 3 heads: the adequacy of hotel accommodation; food issues and health issues.
e. Section E: Some short issues about timing.
f. Section F: The claimant's case in respect of the adequacy of hotel accommodation; food issues and health issues.
g. Section G: The evidence available to the SoS when her decisions not to expedite were made.
h. Section H: The decisions.
i. Section I: The general and widespread delay in securing dispersal accommodation.
j. Section J: The evidence of how the SoS processes applications for expedited dispersal.
k. Section K: The SoS's position in respect of the claim.
l. The law is set out at sections L (the statutory framework) and M (the case law).
m. Section N: Deals with the grounds and section O sets out my conclusion.
A. The challenges
There are seven grounds of challenge:
a. Ground 1: the SoS is unlawfully operating an unpublished policy requiring dispersal to be carried out in strict date order unless evidence is submitted that demonstrates “exceptional circumstances”.
b. Ground 2: by applying the unpublished policy, the SoS is fettering her discretion to disperse those who qualify for section 95 support. In particular the policy is such that the SoS is fettering her own discretion to disperse families with young children in priority to others.
c. Ground 3: by applying the unpublished policy the SoS acts in breach of her duty (section 55 of the Borders, Citizenship and Immigration Act 2009) to have regard to the best interests of children.
d. Ground 4: the SoS acted in the present case in breach of her duty under section 98 and under section 95 to provide adequate accommodation.
e. Grounds 5 and 6: in refusing to expedite the dispersal of the claimant and her children, the SoS failed to take account of a material consideration, namely the needs of the claimant's children. Alternatively, her failure to move the claimant and her children before being ordered to do so by the Court was irrational.
f. Ground 7: The SoS's failure to move the claimant and her children within a reasonable period of time amounts to a breach of her Article 8 rights to a private and family life.
Grounds 1 to 3 are policy challenges. Grounds 4 to 7 are specific challenges dealing with the particular circumstances and experiences of the claimant and her family and the SoS's failure to deal with her specific application.
To deal with grounds 4 to 7 I need to consider the facts and matters that the SoS had available to her when she made her decisions and I need to consider the claimant's evidence.
B. Procedural issues
Three substantive procedural points have arisen: first, the extent of the claimant's case, secondly the form of the claimant's witness evidence and its compliance with the CPR and thirdly the admissibility of certain purported expert evidence on which the claimant seeks to rely.
B1. The extent of the claimant's case
The SoS submits that the claimant's policy challenge is limited to the allegation that the SoS is operating an unpublished policy. As I understand it, the SoS submits that the claimant is not entitled to argue that the policy itself (requiring dispersal to be carried out in strict date order unless evidence is submitted that demonstrates “exceptional circumstances”) is unlawful.
I cannot accept that argument. In my view the claimant attacks the SoS's policy on 2 bases: that it is unpublished and that in substance it is unlawful. That is why at ground 1 the claimant specifically identifies the apparently unpublished policy. The SoS appears to have engaged with the claimant on both grounds (see paragraphs 85 to 87 below).
Ground 2 and ground 3 concern the application of the policy and can only sensibly be read as attacks on the lawfulness of an “exceptional circumstances” policy. The SoS's answer to the point, as I understand it, is that there is no unpublished policy and the policy that is applied is not an “exceptional circumstances” policy.
B2. The claimant's witness evidence and its compliance with the CPR
As I describe below, the claimant has provided 3 witness statements. Each is written in English. The first notes that it has been taken “ with the assistance of an interpreter in Arabic over the telephone”. The statement of truth is written in English. The witness statement is signed by the interpreter who confirms that he has “ translated the above statement to [the claimant] and confirm that she has appeared to understand it and has confirmed to me that the facts stated in this statement are true”. The claimant's solicitor then certifies that she has (“ with the assistance of an interpreter”) read over the contents of both the witness statement and the “ declaration of truth” to the claimant who “ appeared to understand” (a) the statement and approved its contents as accurate and (b) the declaration of truth and the consequences of making a false witness statement and “ has signed the statement in my presence”.
The second witness statement is said to have been “ taken over the phone with my solicitors….and an Arabic interpreter…”. At the end of the statement the claimant has signed the statement of truth in English and the interpreter, and her solicitor have signed the same declarations that appear on the first statement.
The third witness statement is in response to evidence served late by the SoS. It was filed and served, with my permission, after the hearing. Like the second statement it is said to have been “ taken over the phone with my solicitors….and an Arabic interpreter…”. The claimant explains that her solicitor “ has told me the contents of [the late evidence] and asked for my response to those comments”. This statement explains, and to some extent changes the evidence set out in the first 2 statements.
I should add that the Claimant's solicitor has signed the statement of truth on the Claim Form on behalf of the Claimant. By CPR PD 22 paragraph 3.8, I proceed on the basis that the claimant has authorised the solicitor to sign the statement of truth and that before signing the solicitor had explained to the claimant “(through an interpreter where necessary) that in signing the statement of truth [the solicitor] would be confirming the client's belief that the facts stated in the document were true, and…. that before signing he had informed the client of the possible consequences to the client if it should subsequently appear that the client did not have an honest belief in the truth of those facts (see rule 32.14).”
None of the claimants' three witness statements has been prepared in accordance with the CPR.
a. CPR PD 22 para.2.4 requires a statement of truth to be written verifying a witness statement to be in the witness' own language. The point is repeated at CPR PD 32 para.20.1.
b. CPR PD 32 para.18 requires the witness statement to be drafted in the witness' “ own language”. This point is emphasised and repeated at para.23.1.3 of the 2022 Administrative Court Guide and para.19.1(8) of the same PD.
c. A witness statement in a language other than English must be translated. The translator must sign the original statement and must certify that the translation is accurate (CPR PD 32 para.23.2). Both statements should be filed.
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