The King (on the application of) DXK v The Secretary of State for the Home Department Migrant Helpline Ltd (t/a ‘Migrant Help’) (A Charity)
| Jurisdiction | England & Wales |
| Judge | Paul Bowen |
| Judgment Date | 15 March 2024 |
| Neutral Citation | [2024] EWHC 579 (Admin) |
| Court | King's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4585/2020 and AC-2020-LON-003618 |
[2024] EWHC 579 (Admin)
Deputy High Court Judge Paul Bowen KC
Case No: CO/4585/2020 and AC-2020-LON-003618
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Philip Rule KC and David C. Gardner (instructed by Luke and Bridger Law) for the Claimant
David Manknell, Tom Tabori and Amelia Williams (instructed by the Government Legal Department) for the Defendant
Hearing dates: 12, 13 and 15 December 2023 with further written submissions dated 2 and 6 February, 11 and 14 March 2024
APPROVED JUDGMENT
This judgment was handed down remotely at 10.00 am on 15 March 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
This judgment is deemed to have been delivered in open court. There is a reporting restriction order in force in respect of this case protecting the anonymity of the Claimant and her child. Permission to publish this version of the judgment is given expressly on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the Claimant and her child must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
Deputy High Court Judge Paul Bowen KC:
Table of contents
| Introduction | 3 |
| Summary of the Court's decision | 4 |
| Procedural background | 5 |
| The individual challenge and its successful outcome | 5 |
| The subsequent progress of the judicial review claim | 6 |
| Relevant factual background | 6 |
| A summary of the asylum support decision process prior to the ‘new system’ | 6 |
| Enforcement of the AASC | 9 |
| The growing pressure on the asylum support system and delays in dispersal after the first Covid-19 pandemic lockdown in March 2020 | 10 |
| Features of the asylum support system increasing the risk of delays in dispersal of PNMAS | 11 |
| The adverse effects on PNMAS and their infants of long-term IA and delays in dispersals to DA | 14 |
| DMA and the ‘duty to monitor’ | 17 |
| The SSHD's response: the ‘new system’ | 19 |
| The Claimant's grounds of challenge | 24 |
| The systemic grounds: Grounds 2–4 | 24 |
| The due regard grounds: Grounds 5–6 | 25 |
| Legal framework: general | 26 |
| Introduction | 26 |
| 26 | |
| The HNPD Policy | 31 |
| Discussion: the systemic grounds (Grounds 2–4) | 31 |
| Legal framework on ‘systemic challenges’ following A and BF (Eritrea) | 31 |
| Academic issues? | 34 |
| Decision: systemic challenge under the 1999 Act and HNPD Policy (Ground 2) | 35 |
| Decision: the HRA Grounds (Grounds 3(a), 3(b) and 4(a)) | 39 |
| Decision: indirect discrimination (Ground 4(b)) | 42 |
| Discussion: the PSED Ground (Ground 6) | 44 |
| Legal framework relevant to the PSED | 45 |
| Academic issue? | 53 |
| Decision: the PSED Ground (Ground 6) | 54 |
| Discussion: s 55(1) BCIA children's welfare duty (Ground 5) | 59 |
| Legal framework relevant to s 55 BCIA | 59 |
| Academic issue? | 60 |
| Decision: the s 55 Ground (Ground 5) | 60 |
| Conclusion | 62 |
| Consequential matters including relief | 62 |
| Anonymity | 63 |
| Annex: Relevant provisions of the AASC contract applying to PNMAS | 66 |
Introduction
This case concerns a challenge to the lawfulness of the system of allocation of asylum accommodation provided by the Secretary of State for the Home Department (‘SSHD’) under s 95 and s 4(2) of the Immigration and Asylum Act 1999 (the ‘1999 Act’) as it relates to a particularly vulnerable cohort, namely pregnant and new mother asylum-seekers and failed asylum-seekers (‘PNMAS’). The asylum support system is administered, in practice, by the United Kingdom Visa and Immigration Directorate (‘UKVI’) through contracts with third parties known as Asylum Accommodation Support Contracts (‘AASC’), but the statutory duties under the 1999 Act remain the SSHD's.
As the facts of this and other cases demonstrate, there have been – and continue to be – significant delays in the provision of ‘dispersal accommodation’ (longer-term self-contained provision) (‘DA’) to asylum-seekers and failed asylum-seekers who are instead inappropriately accommodated in ‘initial accommodation’ (usually single rooms in hotels on full or half-board) (‘IA’) for long periods. The evidence is that such delays have a disproportionately adverse impact upon PNMAS: see paragraph 36, below. The SSHD's case is that these delays have been caused by an unprecedented rise in demand since the first Covid-19 lockdown in March 2020. The Claimant's case is that these delays have also been contributed to by systemic failings within the asylum support system which have been exposed by that increase in demand.
The Claimant's original claim challenged, first, the SSHD's failure to provide adequate asylum accommodation, specifically DA, to the Claimant under s 4(2) of the 1999 Act (the ‘individual challenge’) and, second, his ‘failure to have in place a lawful system for allocation of [DA] to [PNMAS]’ under both s 4(2) and s 95 of the 1999 Act (the ‘systemic challenge’). The individual challenge (Ground 1) is no longer pursued, the Claimant having obtained the relief she sought in bringing the proceedings by a move to DA on 13 January 2021. The claim has therefore become academic as it concerns the Claimant who is barred from advancing Ground 1 by order of Jonathan Moffett KC DHCJ dated 28 June 2023. However, the Claimant's reformulated Grounds 2–6 involve challenges to the lawfulness of the system as it applies to PNMAS as a wider group. These grounds of challenge fall conveniently under two headings:
Grounds 2–4 (the ‘systemic grounds’):
i) Ground 2: Systemic breaches of the SSHD's duties to provide ‘adequate’ accommodation to PNMAS under s 4(2) and s 95 of the 1999 Act and his duty to prioritise PNMAS for DA in accordance with his own policy, the Healthcare Needs and Pregnancy Dispersal Policy, v3.0 (1 February 2016) (the ‘ HNPD Policy’).
ii) Grounds 3 and 4(a) (the ‘ HRA grounds’): Systemic breaches of Articles 3, 8 and 14 ECHR and s 6 of the Human Rights Act 1998 (‘ HRA’).
iii) Ground 4(b): Indirect discrimination contrary to s 19 of the Equality Act 2010 (‘EA 2010’): Ground 4(b). This challenge is closely related to the ‘systemic ground’ under Article 14 ECHR but involves a different jurisprudential analysis.
Grounds 5–6 (the ‘due regard grounds’):
i) Ground 5: Breach of the SSHD's duty to have regard to children's welfare under s 55 of the Borders, Citizenship and Immigration Act 2009 (‘BCIA 2009’).
ii) Ground 6: Breach of the SSHD's duty to have due regard to equality considerations in the discharge of public functions (the public sector equality duty or ‘PSED’) in s 149 EA 2010.
While the grounds are wide-ranging, the central allegation common to all of them is that the SSHD has unlawfully failed to collect and monitor relevant statistical data on the allocation of DA to PNMAS which is necessary to ensure the discharge of his duties to this vulnerable group. The Claimant places special emphasis upon the judgment of Knowles J in R (DMA) v. Secretary of State for the Home Department [2021] 1 WLR 2374 (‘ DMA’) in which the SSHD's failure to collect and monitor statistical data in relation to the provision of asylum accommodation to disabled people was held to be unlawful, considered in detail at paragraph 43, below.
There has been much litigation concerning the ambit and application of the asylum support duties leading to a body of case-law. I will make particular reference, in chronological order, to: DMA (Robin Knowles J, 14 December 2020), R (NB) v Secretary of State for the Home Department [2021] 4 WLR 92 (Linden J, 3 June 2021) (‘ NB’), R (MQ) v Secretary of State for the Home Department [2023] EWHC 205 (Admin) (HHJ Bird DHCJ, 7 February 2023) (‘ MQ’), R (HA) v Secretary of State for the Home Department [2023] PTSR 1899 (Swift J, 21 July 2023) (‘ HA’) and R (SA) v Secretary of State for the Home Department [2023] EWHC 1787 (Admin) (Fordham J, 14 July 2023) (‘ SA’).
Summary of the Court's decision
As I have noted, the outcome of the claim is of only academic concern to the Claimant. It is, however, of continuing relevance to the SSHD and the many PNMAS applicants who continue to require asylum support. The Court can decide a claim as a ‘test case’ despite the fact its outcome has become of academic interest to the individual claimant where there is a public interest in doing so. That jurisdiction is to be exercised carefully and only in exceptional circumstances, however. I have concluded that the systemic grounds, including the HRA grounds and the indirect discrimination ground (Grounds 2–4), should not be determined in the absence of a firm factual framework relating to (at least) one individual breach or anticipated breach. I therefore dismiss these grounds as academic: below, paragraph 89. The HRA Grounds (Grounds 3–4) are also dismissed because the Claimant lacks standing to bring such a claim under s 7 HRA: below, paragraph 110. The indirect discrimination ground is also dismissed for lack of standing: below, paragraph 113. However, there are exceptional grounds to justify the substantive determination of Grounds 5 and 6 (the ‘due regard’ grounds), which do not require any finding of breach or anticipated breach of individual duty and are less fact-sensitive: below, paragraph 143, 164. I find that the absence of statistical data monitoring is a breach of the PSED in s 149 EA 2010 (Ground 6, below, paragraph 124) but there...
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