The High Court judgment in R (DMA & Ors) v The Secretary of State for the Home Department  EWHC 3416 (Admin) upheld a significant judicial review challenge against the Secretary of State over systemic delays in the provision of adequate accommodation to destitute, refused asylum seekers.
The case concerned claims by 5 individuals challenging the Secretary of State's operation of the asylum support system. That system has come under renewed public scrutiny following Home Secretary, Priti Patel's practice of housing asylum seekers in a former army barracks (recently set ablaze) and boarded up hotels, where COVID-19 is reportedly spreading unchecked and endangering public health.
Under section 4(2) of the Immigration and Asylum Act 1999 ('the 1999 Act'), the Secretary of State has a power and a duty to provide adequate accommodation and subsistence support to eligible destitute refused asylum seekers. In practice, section 4(2) governs the provision of support to 'highly vulnerable' individuals.
The Secretary of State delegates the performance of her section 4(2) duty via seven regional Asylum Accommodation Support Contracts ('AASC') with three private sector companies. [i] The contracts are worth some £4 billion over 10 years. [ii]
All five claimants had been accepted as eligible for section 4(2) support due to their destitution. The purpose of the section 4(2) power is to avoid applicants from being subjected to the imminent risk of inhuman or degrading treatment contrary to Article 3 of the ECHR. Despite being legally entitled to receive adequate support and accommodation, each claimant experienced unreasonable delays in the provision of accommodation to them, facing hardship, homelessness. They were without any alternative means of meeting their everyday needs and finding accommodation. They suffered deterioration in their physical and mental conditions.
The Court found that the Secretary of State's unreasonable delays in providing accommodation in breach of her statutory duties and her failure to properly monitor affected individuals, including disabled individuals, were unlawful and discriminatory.
In the judgment, Mr Justice Robin Knowles CBE confirms that the Secretary of State's current operation of the section 4(2) system is unlawful, due to:
1. systemic, unreasonable delays in the prevention of the imminent risk of inhuman and degrading treatment (contrary to section 6 of the Human Rights Act 1998, read with Article 3 of the ECHR);
2. failure to capture data properly and failure to properly monitor the provision of accommodation; and
3. failure to monitor the provision of accommodation to disabled persons.
Despite these contractual arrangements, the claimant 'AA', who was seriously disabled with a terminal illness, and who I represented, instructed by the public law firm, Deighton Pierce Glynn, suffered 'huge delay' when the Secretary of State failed to arrange adequate accommodation for a period of 9 months.
The Court was assisted by detailed evidence from four different NGOs (the Refugee Council, Freedom from Torture, Helen Bamber Foundation and Bristol Refugee Rights) each highlighting ways in which the needs of disabled individuals were not being adequately addressed by the Secretary of State.
The Court awarded damages of £1,000 each to four of the claimants in 'just satisfaction' for the breaches of their rights under Article 3 of the ECHR.
Unlawful operation of the section 4(2) system
• Where the section 4(2) duty to accommodate applies, a breach of Article 3 of the ECHR will be imminent. In that context, accommodation must be provided within a reasonable time. It is not sufficient for the Secretary of State to simply use her best efforts within affordability constraints. According to the evidence of the Secretary of State, there were no affordability constraints under the AASC (§ 195);
• The Secretary of State's evidence regarding the monitoring of private contractors under the AASC was 'chaotic'. The Secretary of State had given inaccurate performance figures to the Court. In reality, contractor performance was far worse than the Secretary of State had claimed it was (§§ 149 – 151, 159 to 162);
• As a result: 'there were no proper arrangements for data capture and monitoring' by the Secretary of State of the Key Performance Indicator under the AASC for the provision of accommodation within requested timescales (§ 173 and 197). Such monitoring arrangements as there were 'either did not happen or do not work' (§ 207).
• The Secretary of State's failure to capture data and to use data to monitor the system properly contributed to the real risk of unlawful decisions (§ 235);
• The Court found that in the absence of effective monitoring, 'the system is without a key means by which to identify and correct failure and to inform change to enable it to meet its purpose, to be found in section 4(2). It is a systemic issue that puts all those entitled to the "safety net" of section 4(2) accommodation at unnecessary risk. In the present case there is evidence of a real risk of a breach of the Secretary of State's statutory duty in a significant number of cases.' (§ 238);
• The Court described in detail what it regarded as the features of 'proper monitoring', none of which were currently undertaken by the Secretary of State (§ 243).
Breaches of the Equality Act 2010
• The Secretary of State had discriminated unlawfully against AA due to things arising from his disability. [iii]
• The discrimination was unjustified. It was not rational or proportionate to treat disabled people unfavourably in the interests of immigration control (§§ 259 to 266, 276, 281, 284);
• There was no monitoring of the numbers of disabled applicants for section 4(2) support (§ 294);
• Despite this, 'an understanding of how many disabled people are entitled to section 4(2) accommodation, how many are not being accommodated within a reasonable period of time (and within what time), how many are being prioritised, how many are not being accommodated with the priority set, how many are having to make applications to court to compel performance of the section 4(2) duty, would be among obvious and essential requirements in any section 4(2) system. They would provide a start to making the system work for disabled individuals.' (§ 299);
• The AASC created economic incentives that made the provision of accommodation to disabled persons less profitable (or even unprofitable) for private contractors. In addition, 'there is no monitoring to see whether these incentives are having a negative impact and to allow that to be addressed' (§ 302);
• The Secretary of State had breached her duty to make reasonable adjustments [iv] by failing to monitor affected disabled individuals and failing to implement an effective system of prioritisation. In the absence of monitoring, the Secretary of State could not understand why its existing priority system was not working and what needed to be done about it (§§ 288, 290 to 291 and 307);
• The Secretary of State had breached the public sector equality duty [v] due to her failing to monitor the provision of section 4(2) accommodation to persons with a disability (§§ 320 to 322 and 325).
Points of practice
• The Court had a proper constitutional role to play in reviewing the executive's operation of a system where that system was being operated in a way that caused the executive to be in breach of its legal duties. The Courts may need to adapt carefully in order to address complex systems where required (§ 229 to 230);
• 'If the system is operating unlawfully and the Court does not address that then its case by case involvement simply becomes part of the system. A system that reaches the point of depending on applications for judicial review to make it work may require particular scrutiny.' (§ 231);
• Although each of the Claimants had been accommodated adequately by the time of the trial, the proceedings were not 'academic' as it was useful for the Secretary of State to know whether or not she was acting unlawfully (§ 331).
This is a significant case for several reasons.
It is the first reported case examining the operation of the asylum support system under section 4(2) of the 1999 Act. It is one of relatively few reported judicial review cases in which a claim under sections 15 and 29(6) of the Equality Act 2010 has been upheld.
It also provides detailed guidance on what the Court considers to be 'proper monitoring' of the operation of a private sector contract in the exercise of public law duties of the Secretary of State.
The Secretary of State's attempt to justify discrimination against disabled individuals on the grounds of immigration control has been rejected.
Particular thanks go to the frontline professionals who provided witness statements in support of the claims (Kama Petruczenko of Refugee Council, Salma Iqbal of Freedom from Torture, Zoe Dexter of Helen Bamber Foundation and Deborah Gubbay of Bristol Refugee Rights). Helpful information was also provided by Refugee Action.
Each of the 5 claimants were represented by the public law firm, Deighton Pierce Glynn.
AA was represented by Ben Amunwa of The 36 Group, led by Zoe Leventhal of Matrix Chambers and instructed by Sasha Rozansky (partner) Robyn Taylor (solicitor) and Georgina Colegate-Stone (solicitor) of Deighton Pierce Glynn.
The claimants DMA, AHK, BK and ELN were represented by Alex Goodman of Landmark Chambers, leading Katherine Barnes of 39 Essex, instructed by Polly Glynn (partner) of Deighton Pierce Glynn.
The Defendant was represented by Robin Tam QC leading Emily Wilsdon, both of Temple Garden Chambers, and Shakil Najib of No5 Chambers.
[i] Serco, Mears Group and Clearsprings Ready Homes.
[ii] See National Audit Office, Asylum accommodation and support, (1 July 2020) pages 4, 5 and 48, available here: www.nao.org.uk/report/asylum-accommodation-and-support/.
[iii] Contrary to sections 15 and 29(7) of the Equality Act 2010 ('EqA 2010').
[iv] Contrary to sections 15 and 29(6) of the EqA 2010.
[v] Contrary to section 149 of the EqA 2010.
The Claimants have anonymity orders in place and are referred to in the proceedings as 'DMA', 'AHK', 'BK', 'ELN' and 'AA'. No reporting of this case should directly or indirectly lead to their identification.