The King on the Application of HZ v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Henshaw |
| Judgment Date | 24 March 2023 |
| Neutral Citation | [2023] EWHC 660 (Admin) |
| Court | King's Bench Division (Administrative Court) |
| Docket Number | Case Nos: CO/3495/2022 CO/3497/2022 |
[2023] EWHC 660 (Admin)
THE HONOURABLE Mr Justice Henshaw
Case Nos: CO/3495/2022
CO/3481/2022
CO/3497/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Martin Westgate KC, Adam Straw KC, Raza Halim, Tessa Buchanan, Ollie Persey and Alex Schymyck (instructed by Public Law Project, Shelter and Deighton Pierce Glynn) for the Claimants
Cathryn McGahey KC, William Irwin and Anisa Kassamali (instructed by Government Legal Department) for the Defendant
The Interested Party did not appear and was not represented
Hearing date: 17 January 2023
Draft judgment circulated to the parties: 1 March 2023
This judgment was handed down by the Judge remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down is deemed to be 10:00 on Friday 24 March 2023.
| (A) INTRODUCTION | 3 |
| (B) FACTS | 5 |
| (1) The Claimants | 5 |
| (2) The resettlement schemes | 6 |
| (3) Immigration position | 6 |
| (4) Operation Warm Welcome | 6 |
| (5) Bridging accommodation: generally and in Manchester | 13 |
| (6) Bridging accommodation: exit strategy | 18 |
| (7) Closure of the hotel in Southwark and subsequent events | 21 |
| (8) Procedural history of the claims | 32 |
| (C) PRINCIPLES | 32 |
| (1) General administrative law principles | 32 |
| (2) Section 55 of the Borders, Citizenship and Immigration Act 2009 | 35 |
| (3) Adherence to policy | 42 |
| (D) APPLICATION | 44 |
| (1) Proper enquiry and appraisal | 44 |
| (2) Policy | 51 |
| (E) CONCLUSIONS | 53 |
(A) INTRODUCTION
The Claimants are Afghan nationals who were relocated to the UK, following the fall of Afghanistan to the Taliban in the summer of 2021, pursuant to two resettlement schemes. They were granted indefinite leave to remain in the UK, and have also been provided with various kinds of support pursuant to a cross-government initiative known as “ Operation Warm Welcome”.
One aspect of the support to persons in the position of the Claimants has been the provision of temporary or “bridging” accommodation until they find or are offered settled accommodation: either pursuant to the resettlement schemes, or by themselves finding social housing or private rented accommodation.
The provision of settled accommodation pursuant to the resettlement schemes has not happened quickly, and the Claimants (and many others) have remained in bridging accommodation. For about a year they were accommodated at a hotel in Southwark (“ the Southwark Hotel”). However, in summer 2022 that hotel served notice to terminate its contract with the government, pursuant to which (counsel informed me) about 90–100 people including the Claimants were in bridging accommodation. The Defendant therefore offered the Claimants new bridging accommodation in two hotels in Manchester, one in the city centre and one outside it. In the interests of seeking to protect anonymity, I shall refer to these as at “ the first Manchester Hotel” and “ the second Manchester Hotel”.
The claim forms and Statements and Facts and Grounds for Claimants HZ and MK indicate that they challenge the Defendant's decision to offer them accommodation at the second Manchester Hotel. However, following circulation of the draft judgment on 1 March 2023, it emerged during the editorial corrections process that, though initially told they would be offered accommodation there, HZ and MK were ultimately accommodated at a different hotel, which I shall refer to as “the third Manchester Hotel”. It is not suggested that this alters the outcome, but it has necessitated some revision of the factual parts of this judgment.
By this claim for judicial review, the Claimants challenge the Defendant's decision to offer the new bridging accommodation in Manchester, and seek orders requiring her to provide them and their families with bridging accommodation in, or within a reasonable travelling distance of, the London Borough of Southwark.
The Grounds of challenge are:
i) failure to make a proper enquiry into and appraisal of the considerations relevant to the decisions, including in relation to those concerning education and employment; and
ii) failure to follow the Defendant's policy.
In support of these Grounds, the Claimants submit, in outline, that:
i) The Defendant could not lawfully decide to move the Claimants and their families to Manchester without proper consideration of whether such a move was appropriate given their individual circumstances, and specifically without consideration of the impact on employment and education.
ii) Such consideration was not precluded or made irrelevant by the Defendant's policy decision to close bridging hotels in London.
iii) The evidence does not show that the Defendant carried out such a consideration.
iv) The Defendant failed to take proper steps to apprise herself of the information necessary to enable her properly to evaluate the Claimants' circumstances.
v) The Defendant acted in breach of her duty under section 55 of the Borders Citizenship and Immigration Act 2009 to have regard to the need to safeguard and promote the welfare of children when discharging any function in relation to immigration.
vi) The decision to offer replacement bridging accommodation only in Manchester was irrational and/or in breach of the Defendant's policy commitments.
It must be borne in mind that the question for the court concerns the legality, not the merits, of the decisions in question.
For the reasons set out below, I have concluded that the Defendant's decisions were lawful and that these claims must be dismissed.
(B) FACTS
(1) The Claimants
Claimant HZ is a former member of the Afghan National army, who worked alongside British advisers in Afghanistan for 17 years as a member of a special forces unit. He and his partner have six children: one infant, two of primary school age and three of secondary school age. While living in Southwark, his three eldest children attended a school in Southwark which I shall refer to as “ the Southwark School”.
HZ and his family are currently living at the third Manchester Hotel. His primary school-age children have been enrolled in a primary school in Manchester since early November 2022. Their school is a 30-minute walk from the hotel. The three oldest children are not enrolled in school. Instead, they receive a limited amount of remote tuition for 1–2 hours on two days per week, which is provided by the Southwark School on a discretionary basis and may end at any time. Neither HZ nor his partner are in employment.
Claimant FM was born in Afghanistan. She worked in Kabul in a senior role for a non-governmental organisation. After she and her family were evacuated to the UK in 2021, she was offered a position in the corresponding role by the UK branch of the same organisation in December 2021, albeit she was not able to start work until August 2022 due to a delay in receiving her British Residence Permit. She and her partner have a 3-year old daughter, and she is also sole carer for her 17-year old cousin. While living in London, the daughter was enrolled in a nursery and the cousin completed an English as a Second or Other Language (“ ESOL”) course at an institution in Southwark.
FM and her family are currently living at the first Manchester Hotel. FM is waiting for a nursery place for her 3 year old daughter. Her 17 year old cousin remains out of education, and as at the date of skeleton arguments had not yet been offered a place on an ESOL course in Manchester. FM's employer has allowed her to work remotely from her hotel room in Manchester on a temporary basis pending this judicial review claim, but, on her evidence, has maintained that in order to continue her employment she must return to London as her role requires her to be physically present at their offices.
Claimant MK was a member of the Special Forces in Afghanistan, working alongside the British Army on drug enforcement and terrorism, as a senior team member. He and his partner have seven children, six of whom are of school age. While living in Southwark, MK's three eldest children were enrolled at the Southwark School, with two of his children preparing to sit GCSE exams this year and next year. The next three children attended a local primary school and the youngest attended a local nursery. MK was enrolled through the Job Centre in SIA training in order to obtain a qualification allowing him to work in the security industry.
MK and his family are currently living at the third Manchester Hotel. After approximately six weeks out of education, all MK's children are now in school and MK is attending a college to learn English. One of MK's children has been required to return to Year 10 when she had been expected to continue onto Year 11. Neither MK nor his partner are in employment.
(2) The resettlement schemes
In summer 2021 the Taliban took Kabul and returned to power in Afghanistan. Those events happened quickly and required an urgent response. On 13 August 2021, the UK announced Operation Pitting. Its purpose was to evacuate UK nationals from Afghanistan, together with any Afghan nationals who were eligible for relocation to the UK. Approximately 15,000 Afghans were evacuated to the UK during the operation.
Two categories of Afghan nationals qualified for relocation.
The first category was Afghan civilians who had contracted to work with the UK government, and the families of those contractors. Those civilians are potential beneficiaries of one of two schemes.
One such scheme is the ex-gratia scheme catering for those who worked directly for...
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