R (on the application of DMA, AHK, BK and ELN) v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Robin Knowles J,Mr Justice Robin Knowles CBE |
| Judgment Date | 14 December 2020 |
| Neutral Citation | [2020] EWHC 3416 (Admin) |
| Date | 14 December 2020 |
| Docket Number | Case Nos: CO 4126/2019 and CO 4362/2019 |
| Court | Queen's Bench Division (Administrative Court) |
In the Matter of an Application for Judicial Review
[2020] EWHC 3416 (Admin)
Mr Justice Robin Knowles CBE
Case Nos: CO 4126/2019 and CO 4362/2019
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINSTRATIVE COURT
Royal Courts of Justice, London
Mr Alex Goodman and Ms Katherine Barnes (instructed by Deighton Pierce Glynn Solicitors) for the Claimants DMA, AHK, BK and ELN
Ms Zoe Leventhal and Mr Ben Amunwa (instructed by Deighton Pierce Glynn Solicitors) for the Claimant AA
Mr Robin Tam QC, Mr Shakil Najib and Ms Emily Wilsdon (instructed by the Government Legal Department) for the Defendant, the Secretary of State for the Home Department
Hearing dates: 20 to 23 July 2020 (orally), and 24, 26 August, 13 September and 10 December 2020 (in writing)
Approved Judgment
I direct that pursuant to CPR PD39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic
Introduction
The claimants in these proceedings had each sought asylum. Their claims for asylum had been rejected by the defendant (“the Secretary of State”) although they awaited consideration of further representations. For the time being, each remained in the country.
Under prevailing arrangements, the claimants had no right to work to provide for themselves. At the same time, they had “no recourse to public funds” for shelter, food or what, in one of the authorities, Lord Bingham termed “the most basic necessities of life”.
Each claimant asked the Secretary of State to accept a duty to provide accommodation or arrange for the provision of accommodation. The Secretary of State properly accepted the duty in each case, by reference to section 4(2) of the Immigration and Asylum Act 1999 (“the 1999 Act”).
The issues in these proceedings concern the performance of that duty; the actual provision of the accommodation. At the same time they provide a particular focus on the role of monitoring (including collection and capture of data, and evaluation).
There are two claims, and they are heard together by order of Swift J, as Judge in Charge of the Administrative Court. There are 5 claimants in total, there are various aspects of vulnerability, and one claimant at least is severely disabled. Their identities have been kept private in these proceedings. Their circumstances are examples of the circumstances of others.
One claimant was in due course granted asylum and leave to remain and two were in due course granted leave to remain.
This judgment divides into these sections:
The legislative framework
| The legislative framework | paragraphs [8] to [21] |
| Policy | paragraphs [22] to [27] |
| Guidance | paragraph [28] to [31] |
| Reports | paragraphs [32] to [33] |
| DMA, AHK, BK and ELN | paragraphs [34] to [37] |
| AA | paragraphs [38] to [41] |
| Alleged “failure to travel” The allegations DMA AHK BK ELN Overall | paragraphs [48] to [95] |
| Context | paragraphs [96] to [98] |
| Contracting Contracts with accommodation providers Operation of contracts Affordability of accommodation Securing performance Volume caps | paragraphs [99] to [120] |
| Monitoring Performance management and review Provider monitoring “Hourly checks” Disability monitoring Enforcement | paragraphs [121] to [144] |
| Performance of the duty to accommodate | paragraphs [145] to [154] |
| Knowledge of performance of the duty | paragraphs [155] to [173] |
| Time for performance of the duty Grounds advanced A reasonable period of time The time taken in the claimants' cases The Padfield principle A systemic issue or issues Failing properly to monitor | paragraphs [174] to [245] |
| Disability and equality Grounds advanced Legislation Disability Needs Unfavourable treatment The system Limited resources Immigration control Supply and competition Reasonable adjustments Failing to monitor A reserve stock of accommodation Prioritisation Public sector equality duty | paragraphs [246] to [326] |
| Academic claims? | paragraphs [326] to [332] |
| Remedies Declarations Mandatory orders Damages | paragraphs [333] to [341] |
| Reflections | paragraphs [342] to [349] |
Section 4(2) of the 1999 Act provides, so far as material:
“4. Accommodation.
…
(2) The Secretary of State may provide, or arrange for the provision of, facilities for the accommodation of a person if—
(a) he was (but is no longer) an asylum-seeker, and
(b) his claim for asylum was rejected. […]”
(3) The Secretary of State may provide, or arrange for the provision of, facilities for the accommodation of a dependant of a person for whom facilities may be provided under subsection (2).
…
(5) The Secretary of State may make regulations specifying criteria to be used in determining–
(a) whether or not to provide accommodation, or arrange for the provision of accommodation, for a person under this section;
(b) whether or not to continue to provide accommodation, or arrange for the provision of accommodation, for a person under this section.”
In the present proceedings the Secretary of State accepts that whilst the word “may” appears in section 4 “she was and is under an obligation to exercise her powers under section 4(2) and 4(5) to promote the policy objectives of those provisions”.
Regulations have been made under section 4(5). These are the Immigration and Asylum (Provision of Accommodation to Failed Asylum-Seekers) Regulations 2005 (“the 2005 Regulations”). Regulation 3 of the 2005 Regulations concerns “Eligibility for and provision of accommodation to a failed asylum-seeker”. Paragraph (1) of that Regulation provides:
“(1) Subject to regulations 4 and 6, the criteria to be used in determining the matters referred to in paragraphs (a) and (b) of section 4(5) of the 1999 Act in respect of a person falling within section 4(2) … of that Act are–
(a) that he appears to the Secretary of State to be destitute, and
(b) that one or more of the conditions set out in paragraph (2) are satisfied in relation to him.”
Regulation 2 of the 2005 Regulations provides that “destitute” is to be construed in accordance with section 95(3) of the 1999 Act. That is, a person is destitute if:
“… he does not have adequate accommodation or any means of obtaining it (whether or not his other essential living needs are met) or (b) he has adequate accommodation or the means of obtaining it, but cannot meet other essential needs”.
In the present proceedings, the relevant “[condition] set out in paragraph (2)” of regulation 3 of the 2005 Regulations is:
“(e) the provision of accommodation is necessary for the purpose of avoiding a breach of a person's Convention rights, within the meaning of the Human Rights Act 1998.”
For present purposes, the central Convention right is Article 3, which prohibits inhuman or degrading treatment. This prohibition is not a qualified right; it is absolute. Section 6(1) of the Human Rights Act 1998 (“the 1998 Act”) provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right. Section 6(6) makes clear that “an act” includes a failure to act.
The other conditions set out in paragraph (2) of regulation 3 are as follows (each is an alternative):
“(a) he is taking all reasonable steps to leave the United Kingdom or place himself in a position in which he is able to leave the United Kingdom, which may include complying with attempts to obtain a travel document to facilitate his departure;
(b) he is unable to leave the United Kingdom by reason of a physical impediment to travel or for some other medical reason;
(c) he is unable to leave the United Kingdom because in the opinion of the Secretary of State there is currently no viable route of return available; [or]
(d) he has made an application for judicial review of a decision in relation to his asylum claim–
(i) in England and Wales, and has been granted permission to proceed pursuant to Part 54 of the Civil Procedure Rules 1998 (2),
(ii) in Scotland, pursuant to Chapter 58 of the Rules of the Court of Session 1994 (3) or
(iii) in Northern Ireland, and has been granted leave pursuant to Order 53 of the Rules of Supreme Court (Northern Ireland) 1980 (4); …”
The language of the relevant condition under paragraph (2) of regulation 3 of the 2005 Regulations (condition (e)) reflects that found in Section 55(5)(a) of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”). This referred to “… a power by the Secretary of State to the extent necessary for the purpose of avoiding a breach of a person's Convention rights (within the meaning of the Human Rights Act 1998)”.
The provision providing that power mitigated a regime under section 55 of the 2002 Act which prohibited the Secretary of State from providing or arranging the provision of accommodation for a person prohibited from earning the wherewithal to support himself or herself. Such a regime amounted to “treatment” within the meaning of Article 3: R (Limbuela) v Secretary of State for the Home Department [2006] 1 AC 396 at [6], per Lord Bingham.
In Limbuela, Lord Bingham asked and answered the following question, at [8]:
“When does the Secretary of State's duty under section 55(5)(a) arise? The answer must in my opinion be: when it appears on a fair and objective assessment of all relevant facts and circumstances that an individual applicant faces an imminent prospect of serious suffering caused or materially aggravated by denial of shelter, food or the most basic necessities of life.”.
Lord Bingham spoke further of the threshold for an Article 3 breach at...
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