Secretary of State for the Home Department v First-Tier Tribunal (Social Entitlement Chamber)

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeMr Justice Chamberlain
Judgment Date21 June 2021
Neutral Citation[2021] EWHC 1690 (Admin)
Date21 June 2021
Docket NumberCase No: CO/1613/2021

[2021] EWHC 1690 (Admin)




Royal Courts of Justice

Strand, London, WC2A 2LL


Mr Justice Chamberlain

Case No: CO/1613/2021

The Queen on the application of

Secretary of State for the Home Department
First-Tier Tribunal (Social Entitlement Chamber)


AM, HO, MP, MC and MT
Interested parties

Alan Payne QC, Jack Anderson, Saara Idelbi and Hafsah Masood (instructed by Government Legal Department) for the Claimant

Simon Cox, Daniel Clarke, and Donnchadh Greene (instructed by Deighton Pierce Glynn and Greater Manchester Law Centre) for HO, MP, MC and MT

Hearing dates: 10–11 June 2021

Approved Judgment

Mr Justice Chamberlain



In this case, the claimant is the Home Secretary (“the Secretary of State”). She invokes the judicial review jurisdiction of the High Court to challenge a tribunal decision made on 26 April 2021, which she submits was wrong in law.


The decision was made by Principal Judge S.H. Storey (“the Principal Judge”) in the First-tier Tribunal (Social Entitlement Chamber – Asylum Support), previously known as the Asylum Support Tribunal. I will refer to the Tribunal as the “AST”.


The decision concerned AM, a 29-year old national of Afghanistan who is a “failed asylum-seeker”, i.e. a person whose asylum claim has been rejected and whose appeal rights are exhausted. When he made his application, AM said that he was street homeless and therefore “destitute”. There was nothing stopping him from leaving the United Kingdom, with help if necessary, but he had taken no steps to do so. Nor, however, had the Secretary of State taken any steps to remove him.


AM relied on expert evidence about the risks posed by the COVID-19 pandemic to those who are street homeless or forced to live in overcrowded conditions. It was submitted that members of the public were also at risk of contracting COVID-19 from homeless destitute failed asylum-seekers.


The Principal Judge decided that, in the light of these risks, the Secretary of State was legally obliged to continue to provide accommodation for AM until step 4 on the Government's Roadmap out of lockdown (“the Roadmap”) is reached, when the remaining legal restrictions imposed to tackle the COVID-19 pandemic are to be lifted. At the time of her decision, that was anticipated to be on 21 June 2021, though the Government has recently announced that the date is to be put back to 19 July 2021.


The decision of the Principal Judge binds the Secretary of State in AM's case. Because it was designated as a “lead case” under the AST's rules, it was also binding on 41 other cases which were stayed behind it, unless the parties in those cases applied for a direction to the contrary. All of these cases have since been determined against the Secretary of State. The decision has been followed by AST judges in other cases too.


If the Principal Judge's reasoning is correct, the health risks associated with the pandemic are such that the Secretary of State is legally required to provide accommodation and support not only to AM, but also to all destitute failed asylum-seekers, until step 4 on the Roadmap is reached. The Secretary of State has brought this claim to challenge that reasoning.


The Secretary of State submits that the Principal Judge's reasoning was wrong for these reasons:

(a) Article 8 of the European Convention on Human Rights (“ECHR”) imposes no positive duty to accommodate all those who lack accommodation, whether generally or in the circumstances of the pandemic as they were at the time of the decision (Ground 1).

(b) Even if there was a positive duty to take some steps to protect AM and other members of the public, the decision not to accommodate AM (and other failed asylum-seekers who choose not to leave the UK) was not a disproportionate interference with their rights under Article 8 (Ground 2).

(c) The refusal of support was not incompatible with Article 14 read with Article 8 (Ground 3).

(d) The Principal Judge misunderstood, or acted inconsistently with, one of her own previous decisions, made on 23 October 2021: PA & MA (Ground 4).


AM played no part in these proceedings. Four of the 41 individuals whose stayed claims were determined on the basis of the Principal Judge's reasoning did, however, participate.


Directions were given for an expedited, rolled-up hearing, which took place on 10–11 June 2021, with the legal teams in court and others observing through a video-conferencing platform. I heard submissions for the Secretary of State from Alan Payne QC. In accordance with the usual practice, the AST was not represented. Submissions for the four interested parties were made by Simon Cox.

The Secretary of State's powers and duties


The Immigration and Asylum Act 1999 (“the 1999 Act”) confers two relevant sets of powers on the Secretary of State.


First, s. 95 confers powers to provide or arrange for the provision of “support” to “asylum-seekers”, i.e. those who have made claims for asylum which have not been determined or whose appeals are outstanding. Support can include (inter alia) accommodation and provision of essential living needs: s. 96.


Second, s. 4 confers power to provide accommodation to failed asylum-seekers. Section 4(5) empowers the Secretary of State to make regulations specifying the “criteria” to be used in determining whether to provide or continue to provide accommodation. Section 4(10) authorises the making of regulations permitting a person provided with accommodation under s. 4 to be supplied with services or facilities of a specified kind.


The criteria are set out in reg. 3 of the Immigration and Asylum (Provision of Accommodation to Failed Asylum-Seekers) Regulations 2005 (SI 2005/930: “the Accommodation Regulations”). The failed asylum-seeker must be destitute. By virtue of reg. 2, which applies the definition in s. 95(3) of the 1999 Act, this means that:

“(a) 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 his other essential living needs”


In addition, he must satisfy one or more of the conditions in reg. 3(2), materially that:

“(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;

(d) he has made an application for judicial review of a decision in relation to his asylum claim… and has been granted permission to proceed pursuant to Part 54 of the Civil Procedure Rules 1998

(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.”

The provision of accommodation to asylum-seekers and failed asylum-seekers during the pandemic

Decisions to cease providing accommodation and support to those in receipt of it


The following facts are derived from witness statements from Simon Bentley and Philomena Creffield prepared in response to a claim for judicial review ( CO/3986/2020) by QBB, another failed asylum-seeker. Mr Bentley works in the Asylum and Family Policy Unit at the Home Office and has lead responsibility for policy relating to support arrangements for asylum seekers and failed asylum seekers. Ms Creffield is a Deputy Director in the Resettlement, Asylum Support and Integration Directorate of the Home Office.


In March 2020, the Secretary of State decided that “in line with the government's aim of ensuring people remained in their homes,” she would not require people to leave accommodation provided under s. 95 when their asylum claim or appeal was finally determined. She also decided that failed asylum-seekers in receipt of accommodation and support under s. 4 could remain in their accommodation “even though they may have ceased to be eligible to receive it”.


On 15 September 2020, the Secretary of State decided to resume decisions to cease to provide accommodation and support under ss. 4 and 95 to those who no longer qualified for it (“cessation decisions”).


Two failed asylum-seekers in respect of whom cessation decisions were made appealed to the AST. In a decision handed down on 23 October 2020 – PA & MA – the Principal Judge said this:

“47. In respect of the generality of cases, I am satisfied that for those who reside in Tier 1 or Tier 2 locations and who are appeal rights exhausted, it remains reasonable to require them to take steps to leave or place themselves in a position in which they are able to leave the UK. This includes contacting the Home Office VRS [voluntary returns service] for help to facilitate their departure. Alternatively, they have the option to qualify for support by bringing themselves within other regulation 3(2) conditions.

48. However, it seems to me unreasonable to discontinue support to persons in receipt of section 4 support who reside in Tier 3 areas subject to very high alert. These areas are subject to the toughest restrictions with households banned from mixing indoors and outdoors, in hospitality venues or private gardens, and advised against travelling into or out of the area, much like the position in March 2020, when the respondent implemented her policy to safeguard the public and the communities in which they live. On that basis, I find that in areas now subject to very high alert and the same tough...

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