The two district councils and local resident who brought a judicial review challenging the use of decommissioned Ministry of Defence sites at Wethersfield and Scampton to accommodate men seeking asylum have been unsuccessful in the High Court. The case is R (Clarke-Holland) v Secretary State for the Home Department & Anor [2023] EWHC 3140 (Admin). This is a planning challenge, so I am keeping it fairly light on the details (apologies to any planning lawyers who are reading this).

Background

RAF Wethersfield is 1.7 miles from the village of Wethersfield and it contains runways and taxiways. Access to the site is by rural roads, most of which do not have pedestrian footpaths. RAF Scampton is located around six miles from Lincoln, it has 280 buildings and 10,000 feet of runways. It was only decommissioned as an active Royal Air Force base in April this year.

The sites at Wethersfield and Scampton were identified for use as asylum accommodation on 27 January 2023 and a submission to this effect was made to the Immigration Minister. In March 2023 the Secretary of State for Levelling Up, Housing and Communities issued a screening direction that the proposed developments were not likely to have significant effects on the environment.

Also in March, the Home Secretary noted an emergency statement which permitted the site to proceed without planning permission and approved the recommendation to proceed with the development. A statement was then made to the House of Commons about the use of the sites for asylum accommodation.

The judicial review

There were three main grounds of challenge. The first was to the use of the “emergency” statement which meant that the Home Office could circumvent the need to obtain planning permission for the accommodation. It was argued that the Home Secretary either misinterpreted the statutory definition of “emergency” or else reached an irrational conclusion under it.

The second ground of challenge was to the environmental screening direction made under the Infrastructure Planning (Environmental Impact Assessment) Regulations 2017. This was challenged in relation to Wethersfield only, the defendant was the Secretary of State for Levelling Up, Housing and Communities. The direction said that the use of the site was not likely to have significant environment effects. It was argued that the decision had considered the likely significant effects on the basis that the development would last for only 12 months, whereas the real intention was for the site to be used for longer than this.

It was also argued that the Home Secretary was in breach of the public sector equality duty, specifically the duty to have due regard to the need to foster good relations between persons who share a relevant protected characteristic and those that do not. This was because the accommodation was a part of the country that had not previously had people in the asylum system living there. The need for local consultation had been identified in the assessment, but had not taken place before the decision was made to use the site.

On the use of the “emergency” statement, expert evidence was presented to the effect that part of the cause of the increase in the number of people in need of asylum accommodation was that Home Office decision making had slowed down. However the court found that the Home Secretary was entitled to use this to avoid the need for planning permission, and that the definition of emergency was met “once there is a threat of serious damage to human welfare by virtue of homelessness”. The court said that an investigation into the causes of the emergency was not required without level of irrationality that permitted court intervention.

In response to the environmental screening direction argument, the court said that it was “apparent that the longer term use of the sites, beyond 12 months, was envisaged” but no decision had been made at the time the directions were issued. The court said that it was apparent that “there was considerable uncertainty about the future, both as to the shape of the development as well as its duration”. The court dismissed the challenge against the issuing of the direction.

In relation to the argument that the Home Secretary had breached the public sector equality duty, the court said that it was required to have a “realistic and proportionate approach to evidence of compliance with the duty, not micro-management or a detailed forensic analysis” and that the court should only interfere where the approach is “unreasonable or perverse”. The court concluded that was not the case here, despite stating that Ministers “had taken a deliberate decision not to undertake formal engagement with local communities” before announcing the use of the sites.

This was despite the acknowledgement of a “significant” risk of community tensions as well as the learning from Linton-on-Ouse which was that the lack of community engagement before the announcement had negatively impacted public perception of the project. The court said that it could not intervene “merely because it considers that further inquiries would have been sensible or desirable”.

The judicial review was dismissed.

Conclusion

A new report published by Humans for Rights Network and the Helen Bamber Foundation on Wethersfield has found that in the first three months of the site opening, nearly a quarter of the men who had been moved there were moved out again as they did not meet the ‘suitability criteria’ to live in this type of accommodation. They have also found that the isolated location, detention-like setting, lack of privacy and shared facilities and inadequate healthcare are all contributing to the significant mental distress of those who are placed there. Regardless of the outcome of this case, the use of these sites remains inappropriate and harmful and should be discontinued.