The High Court has handed down judgment in R (DXK) v The Secretary of State for the Home Department [2024] EWHC 579 (Admin), finding that the Secretary of State acted unlawfully in his treatment of pregnant and new mother asylum-seekers through a failure to discharge the Public Sector Equality Duty. Philip Rule KC and David C. Gardner, both of No5 Barristers’ Chambers, acted for the Claimant, DK. They were instructed by Stuart Luke and Debbie Heath of Luke and Bridger Law.

DXK concerned a challenge to the lawfulness of the Secretary of State’s system of allocating asylum accommodation, as it relates to pregnant and new mother asylum-seekers. Under the Secretary of State’s own guidance, these individuals should, in the majority of cases, be prioritised for dispersal from asylum hotels (temporary “initial accommodation”) to longer-term, self-contained accommodation (“dispersal accommodation”) more suitable to pregnancy and raising children. Since the pandemic, however, single mothers with children under 3 have seen their waiting time in initial accommodation increase five-fold.

Following a three-day hearing, Deputy High Court Judge Paul Bowen KC held that “there are a number of factors for which the SSHD is responsible that increase the risk of delays in dispersal in relation to PNMAS [Pregnant and New Mother Asylum-Seekers]” [94].

The Judge identified seven factors exacerbating delays, including that accommodation providers had faced no sanctions for persistently failing to comply with dispersal requests, accommodation providers were not incentivised to accommodate vulnerable individuals, and that the Secretary of State was not collecting monitoring data and, accordingly, did not know the extent of the problem.

Whilst critical of the system, the Judge declined to rule on whether the system was lawful as the matter had become essentially academic for the individual claimant. The Judge did, however, determine that the failure to collect statistical monitoring data, which had been found to be similarly unlawful in the earlier case of R (DMA) v. Secretary of State for the Home Department [2021] 1 WLR 2374 concerning those with disability, led the Judge in DXK to conclude that the Secretary of State had breached the Public Sector Equality Duty (‘PSED’), as set out at section 149 of the Equality Act 2010. He explained, at [156], that: “Without such information he cannot have due regard to the need to take steps to meet the differing needs of PNMAS for [dispersal accommodation] and how to minimise or remove the particular disadvantages that delays in dispersal cause them, including by treating PNMAS more favourably by prioritising them for dispersal.”

The Judge made a declaration that the Defendant’s failures breached the PSED and importantly, differing from DMA, also made a mandatory order requiring the Defendant to put in place a system of data monitoring. The Judge noted that the Defendant had failed to put in place such a system since DMA and this was a factor in favour of making a mandatory order.

Read full article of judgment here.