Thu, 11 Mar 2021
On the 20th October 2020, Mr Justice Lane granted permission to judicially review and interim relief at an inter partes in-person hearing in R ( PD) V SSHD (CO/ 3336/2020).
The Claimant a Zimbabwean national brought a Judicial Review claim against the SSHD for suitable accommodation, at a geographic location, which allowed him to maintain contact with his children and also allowed to shield from the pandemic.
The Claimant has HIV antibody positive. He has a poor prognosis and is prone to infections. He was subject to 4 years of servitude, exploited through enforced labour. At a later date, he was convicted and sentenced for 16 months for a domestic violence assault.
As a result, of the conviction, social services set a restriction that he should not live with his partner and his two young children. However, his partner wanted him to maintain contact with his children and there were concerns that she would allow him to return to the family home.
The Claimant was provided with some charitable assistance with friends, apart from issues statutory overcrowding, the conditions of contact with his children by social services, required him to have his own accommodation.
The Claimant having failed in his claim for asylum previously made a claim for Section 4 (2) Immigration and Asylum Act 1999 accommodation and support. The Claimant made further submissions based on human rights to the SSHD on 14th April 2020.
On the 15th June 2020, the Claimant made an urgent application, expecting a response within 2-5 days or further enquiries for additional information, within 14 days timeframe, as prescribed by the SSHD’s own Section 4 (2) Immigration and Asylum Act 1999
The Claimants precarious circumstances meant that he could not maintain appropriate contact with his two children and as a failed asylum seeker, he was precluded from seeking Local Authority assistance.
At the permission hearing, Counsel for the SSHD argued that whilst the delay was not desirable unfortunately the consequences of the pandemic was that fewer provider accommodation was available in the required geographic area of Bolton. It was further suggested that the Claimant had not demonstrated urgent circumstances as he was able to access temporary accommodation.
However, it was argued on behalf of the Claimant that the Defendant had the power to access alternative resources with the relevant Local Authority or private stock from housing associations ect. The grounds of Judicial review challenged the Defendant not only for breaching family life Article ECHR but also on the grounds that there delays in a case where the Claimant was at risk because of high infection rates in Tier 3 area, resulting in systemic failings and such unfairness that his health was placed at risk. The Claimant had waited over 4 months for a response, and the time had come, where it was unlawful in the Wednesbury sense not to accommodate the Claimant; R v Gvabsta Ckharchakalia v SSHD [ 2019] EWHC 2232.
The Court agreed. The Court directed the SSHD do use its best endeavours to provide accommodation within reasonable travel distance to his Children home address in Bolton.
The Defendants provider moved the Claimant to accommodation in Doncaster, some two hours travel distant from the address of his Children. Although the Claimant accepted the accommodation. He did not know prior to embarking on the journey, how far it was.
The Claimants representative challenged the Defendant for breaching the order, the SSHD responded new position at this point, stating; Your client has not produced evidence of how frequently he currently sees his children (by way of a care order or other) and no evidence that he has formed a support bubble with or has caring responsibilities for his children;
It is unclear whether your client is able to even access his ex-partner’s address or see his children following his domestic violence conviction;
No evidence has similarly been provided that if your client is able to have contact with his children, that your client’s ex-partner could not travel some distance to meet him with the children to make contact easier;
Both Bolton and Doncaster are in the highest of COVID-19 alert levels and current Government guidance recommends against travel outside of these areas and households in these areas cannot mix unless a support bubble has been formed (
The Claimant made an application seeking enforcement of the order, arguing that it was open to the Defendant to now challenge the Claimants contact with his children. On 15th February 2021, Mr Justice Spencer granted the order awarding the Claimant indemnity costs and directing the Defendant to accommodate immediately within 20 miles of Bolton Town centre, on the basis that the Defendants assertion that it had complied with the court order was rejected.
The matter is listed for Judicial Review. No5's Nabila Mallick is instructed by Alex Masola, Director at Duncan Lewis.
