The High Court has issued a damning judgment lamenting the Home Secretary’s attempt to defend a decision to place a highly vulnerable person seeking asylum in accommodation in Swindon, where he could not access his support network in London. The case is R (NS) v Secretary of State for the Home Department [2023] EWHC 2675 (Admin).

The facts

The claimant is an Afghan national who arrived in the UK in June 2015, aged 15, as an unaccompanied asylum seeking child. Between then and 30 May 2023, he couch-surfed with friends in and around south London. He built up a community of friends and a support network.

The evidence showed clearly that the claimant was heavily reliant on his support network, in circumstances where he suffered poor mental health (including suicidal ideation) – as the judge, Saini J, notes, “typical of many vulnerable asylum-seekers”.

On 10 May 2023, the claimant applied for section 98 accommodation. This was refused by the Home Secretary on 15 May 2023 on grounds that a care needs assessment had to be carried out by the Local Authority first. Despite the claimant’s solicitors sending urgent pre-action correspondence on 23 May 2023 as well as subsequent follow ups indicating that the claimant was at imminent risk of street homelessness, the Home Secretary did not respond.

A care needs assessment was carried out by the local authority (Lambeth) on 30 May 2023 at the claimant’s solicitor’s request but by 31 May 2023 the Home Secretary had still not responded. The care needs assessment found the claimant was at “substantial risk” of self-neglect, malnutrition, dehydration, deteriorating mental health and self-harm”. It identified measures needed to mitigate those risks, namely that the claimant needed to continue to engage with his counsellor, his youth worker, and his current support network, all of whom were in south London.

The claim issued

The claim was issued on 31 May 2023, with interim relief granted on 1 June 2023 directing the Home Secretary provide the claimant with section 98 support pending determination of his section 95 application. The claimant was then housed by the Home Secretary in hotel accommodation in Swindon.

On the same day (31 May 2023), the Home Secretary finally responded, saying: “If [the claimant] will be street homeless, he needs to make an urgent request for accommodation. This should be sent to Migrant Help”. Further, the Home Secretary said: “[The claimant’s] medical evidence was assessed by the Home Office Medical Advisor. The Home Office Medical Advisor has advised that suitable medical and support services do exist in other UK cities. As a result, your client’s request to stay accommodated in Lambeth or Croydon has not been accepted”. 

On 9 June 2023, the Home Secretary said in an email that there were “no plans to move the Claimant to London, and that accommodation is offered on a “no choice” basis”.

Permission was granted on the ground challenging the section 98/95 decisions, which was the decision on 1 June 2023 to house the claimant in Swindon and the decision in the 9 June 2023 email not to move him to London. Permission was refused on the ground challenging the Home Secretary’s “Asylum seekers with care needs” guidance on the basis that it unlawfully requires a care needs assessment to be completed before one can access accommodation (“the policy ground”).

The Decision

At the hearing, the claimant argued his challenge against the section 98/95 decisions and renewed his application for permission on the policy ground.

As to the challenge against the section 98/95 decisions, Saini J found the Home Secretary’s decision-making process unlawful for various reasons. Most importantly, neither her Medical Advisor nor her caseworker addressed the claimant’s relationship with his support network or what impact severing that relationship would have on his mental health. Nor did they have any regard to, still less grappled with, Lambeth’s care needs assessment. Further, there was no evidence that the 9 June 2023 decision considered the adequacy of the Swindon accommodation.

Crucially, the Home Secretary filed no evidence – whether in the form of a witness statement or otherwise. As Saini J observed, while counsel for the Home Secretary “made persuasive submissions as to how the [challenged] decision… was consistent with the [care needs assessment], … these were submissions in the abstract”.

Indeed, counsel frankly indicated that he had no instructions that the Home Secretary’s caseworker had in fact considered the care needs assessment. The challenge against the section 98/95 decisions therefore succeeded and Saini J made a declaration reflecting this.

As to the policy ground, permission was refused as the claimant was no longer personally affected by the guidance and thus the argument was academic. However, Saini J recognised the “force in the Claimant’s argument on the merits”, as the relevant guidance appeared to suggest the section 98 duty was suspended pending competition of a care needs assessment, which therefore appears to “instruct caseworkers to approach applications on an unlawful basis”.

Judge’s comments on relevance of post-decision evidence

Saini J’s decision also contain comments on the relevance of post-decision evidence – in this case, further evidence from professionals, for both sides, as to the need for accommodation in south London for the claimant, and evidence from the claimant of “significant deterioration” in his mental health after being moved.

Whilst Saini J indicated that such evidence was not relevant to assessing legality of the challenged decisions, they “may however be relevant to relief”. On the basis of the post-decision evidence, he observed that, had the claimant had not been granted asylum (he was granted asylum three weeks before the hearing), he would have made a quashing order and directed that the section 95 decision be reconsidered, if those had been sought.

The practical point is that evidence (especially medical evidence) should be, so far as possible, prepared early, so that it can be put before a decision-maker to be considered before a claim is issued. This would ensure the decision-maker is under a legal duty to consider it which might lead to a decision being reviewed, and the court can consider it in assessing the challenged decision’s legality.

Comment

The realistic view is that the claimant’s care needs assessments assessment was probably never considered, and no care was given to his circumstances notwithstanding the tenacious work of his solicitors.

This is the common experience of practitioners working in the field. And it has now been judicially recognised by Saini J, who lamented:

It is a matter of concern that the SSHD sought to defend these decisions. Such a litigation approach wastes court time and resources, taxpayers’ money (on each side) and delays justice for vulnerable persons such as the Claimant. The failure of the SSHD in this case to engage with the letters before claim, or often even to respond to correspondence concerning urgent accommodation needs, is sadly common in the experience of the Administrative Court.

The judge concluded with a well-deserved commendation for the claimant’s support worker and counsellor, recognising their “outstanding public service” in support of the claimant, and noting that their organisations (South London Refugee Centre and Off the Record, Croydon) “perform a vital service”.