David represented the Claimant in R (SA) v Secretary of State for the Home Department [2023] EWHC 1787 (Admin), an important case where Mr Justice Fordham gave guidance on when hotel accommodation being provided for asylum seekers under s.95 of the Immigration and Asylum Act 1999 becomes ‘inadequate’, and thus unlawful. The case focuses in particular on the use of such accommodation for pregnant women and families with young children.

The Claimant is an asylum seeker who, when she came to the UK, was pregnant and had three children (then) aged 10, 9, and 3. The family were destitute with no access to accommodation and so the Secretary of State for the Home Department (“SoS”) accepted she had a duty to provide her with accommodation and support under the 1999 Act. The family were allocated to a single hotel room in a hotel. The family remained in the hotel environment up to and after her giving birth and had been residing there for 8 months by the time the claim was filed. By the time of the hearing before Fordham J they had been residing there for 15 months.

Fordham J found that the accommodation was inadequate; the fact of the Claimant’ pregnancy, the ages of the children, the facilities available in the accommodation, and the sheer length of time they were residing in the hotel all playing important factors in determining the inadequacy of the accommodation.

Fordham J’s judgment sets out a number of important, clarifying, principles:

·      §4 – Where there is a dispute of fact as to the nature of the accommodation, the Court can resolve any dispute in line with the principles in R (NB) v Secretary of State for the Home Department [2021] EWHC 1489 (Admin) at §33-37, and R (F) v Surrey County Council [2023] EWHC 980 (Admin) [2023] 4 WLR 45 at §50, taking into account undisputed evidence, and resolving disputes based on the quality of the evidence of each party.

·      §5 – The SoS has an important duty to monitor provision of accommodation and it is for the SoS to ensure that individual cases receive the diligent attention that they deserve, if necessary by ‘putting her foot down’ in relation to commissioned private providers of accommodation, per R (DMA) v Secretary of State for the Home Department [2020] EWHC 3416 (Admin) at §100 and R (K) v Secretary of State for the Home Department [2020] EWHC 3639 (Admin) at §35).

·      §6 and 12 – The SoS is duty-bound to actively consider and take into account the special needs of any asylum seeker who is defined as vulnerable under The Asylum Seekers (Reception Conditions) Regulations 2005 (in this case a pregnant woman and a lone parent with a minor child) when deciding if accommodation is adequate.

·      §8 – There is a twin-track test for deciding whether the SoS’s duty to provide adequate accommodation has been discharged. Firstly, whether the accommodation meets an ‘objective minimum standard’ (provides “a dignified standard of living, which is adequate for health and is capable of ensuring subsistence”), which is question for the Court. Secondly and thereafter, whether the SoS’s evaluative judgment on whether the accommodation provided is reasonable (in the Wednesbury sense).

·      §8 – When determining whether the ‘objective minimum standard’ has been breached and whether the SoS’s evaluative judgment is unreasonable, the Court must take into account the specific vulnerabilities of the persons to be provided with accommodation.

·      §8-10 – When determining adequacy context is important. In particular:

a)      Adequacy must be tested by reference to the needs of those persons to whom the duty is owed, in a context where accommodation is being provided to prevent destitution.

b)     Adequacy must be measured against the individual circumstances and needs of each relevant individual, including each dependent, having regard to the age of any children.

c)      Adequacy is informed by length of time and accommodation may be adequate only in the short-term and not adequate on a long-term basis, becoming unsuitable by reason of the passage of time.

d)     It is necessary to look at the totality of accommodation (if the Claimant moves hotels or rooms), the conditions, and how long they are being experienced.

e)     It is relevant to consider the prospective picture and the explanation given: the period during which the accommodation was or is likely to be occupied, any “uncertainty” and whether the stay is only to be a short one, and whether those affected were reliably informed that this was the case so that they had the comfort of knowing that their stay was finite.

·      §12-13 – The SoS’s Healthcare Needs and Pregnancy Dispersal Policy promulgates procedural and substantive standards attracting the duty of adherence to policy guidance, absent identified good reason for departure. The Policy recognises:

a)      That pregnant asylum seekers are affected by complex social factors, and also that maternal stress in pregnancy has a detrimental effect on subsequent childhood development.

b)     That where asylum seekers healthcare needs require the urgent provision of dispersal accommodation that should be prioritised wherever possible, emphasising that pregnancy, birth and new motherhood have a significant impact on a woman’s physical and psychological health.

c)      That the type of dispersal accommodation normally appropriate for pregnant women is a dispersal property suitable not just for the pregnant woman but also for mother and baby post birth, where they can access services through pregnancy and into new motherhood, achieved where possible in a single step.

d)     That pregnant asylum seekers should be dispersed as soon as possible.

·      §14 and 26 – Where a pregnant asylum seeker presents as such to the SoS that brings into play the statutory duty under the 2005 Regulations to have regard to the circumstances of vulnerability as well as the Policy with its substantive guidance and procedural discipline. That requires that records must be kept of evaluative decision-making through important stages in the case of vulnerable asylum seekers to whom statutory duties are owed.

Fordham J granted a mandatory order requiring the SoS to move the family to dispersal accommodation (normally a house of flat of their own) within 5 days.

The full judgment can be read here: SA, R (On the Application Of) v Secretary of State for the Home Department [2023] EWHC 1787 (Admin) (14 July 2023) (bailii.org)

David was instructed by Rahul Bhatia and Penelope Baird of Bhatia Best Solicitors