Legal battles concerning appropriate accommodation for asylum-seekers are not limited to claims concerning the welfare of those seeking asylum. The High Court recently heard injunction applications sought by local authorities against a number of hotels and third-party contractors after they potentially violated planning law when they agreed to house asylum seekers. The case is Ipswich Borough Council v Fairview Hotels (Ipswich) Ltd & Serco Limited [2022] EWHC 2868 (KB).

The judgment concerns two cases that have essentially the same legal issues. Their cases have therefore been combined. The first claim is brought by Ipswich Borough Council, and the second by East Riding of Yorkshire Council. In short, it seems certain local authorities do not want asylum seekers to be accommodated on their turf. The defendants include two of the three Home Office service providers contracted to provide accommodation for asylum seekers whilst the initial processing of their claims takes place, Serco Limited and Mears Group PLC. Others are hotels and large hotel groups.

Both claims raise issues that will be dealt with at a trial another day. This judgment concerns interim injunctions requested by Ipswich and East Riding councils. Injunctions are temporary measures put in place until a more considered approach can be taken, either by the court or by those involved.

Interim injunctions on the use of hotels

The initial injunction applications were made on 27 October 2022 without giving notice to the defendants. It was claimed that if the injunction was brought after giving notice to the other side, “it would be too late to prevent the full number of people being moved” there and “may even accelerate their arrival”.

The injunctions were initially granted for a short period of time. They prohibited the defendant hotels and contractors from using hotels in the respective districts as hostels to accommodate asylum seekers. The applications considered in this judgment were to renew the injunctions until the cases go to trial.

Holgate J stated that the injunctions should never have been sought without giving notice. There was suitable time to do so given the steps the contractors took to procure the hotels and “it is difficult to see how secrecy was justified”. Perhaps the urgency was a reflection of the fear of the central government’s hasty reactions, which are a well-known consequence of a media frenzy.

When the Home Office can use hotels

Because the judgment sits in the context of planning law, Holgate J has taken time to set out the provisions under which asylum seekers may be accommodated in the UK. Where accommodation is necessary under section 95 of the Immigration and Asylum Act 1999, it should generally be provided in one of eight initial accommodation sites on a full-board basis. Individuals should only remain there for a few weeks whilst their need for support is assessed and longer-term arrangements are made. If further accommodation is needed, it should be provided in the form of self-catered furnished flats and houses.

Where the need for accommodation exceeds the capacity of the initial accommodation sites, block-booked hotels are used as a short-term contingency plan whilst longer-term dispersal accommodation is found. The recent levels of asylum seekers entitled to the accommodation have significantly increased and the main way the Home Office has sought to meet the situation has been to expand the use of contingency accommodation such as block-booked hotels.

The use of certain standards of hotels that continues to hit the headlines should be caveated with the knowledge that third-party contractors such as Serco are obliged to house an asylum seeker on the same day they are instructed to do so. The company is forced to spot-book rooms in hotels open to the public on a rolling 48-hour basis.

Turning hotels into hostels

The judgment describes how each of the hotels would be used and the steps that each of the defendants, in particular the Home Office third-party contractors, took in procuring the use of the hotels in the proper manner.

In short, the upcoming trials relate to the use of the hotels as hostels. Material change of use or development of land requires planning permission. The case law on what is considered a hostel or a hotel is not prescriptive or conclusive and it is arguable whether it constitutes a material change. Amongst other things, consideration will be given to how many people are sleeping in a room, whether they know each other, how permanent their residence there is, and whether the whole or part of the hotel is block-booked for this purpose.

Where does the public interest lie?

The question for Holgate J in this judgment concerned the strength of the public interest in a further immediate injunction being granted. Considering the harm that would be caused by the continued grant of the injunctions, Holgate J acknowledged the statutory duty of the Secretary of State to provide accommodation for asylum seekers, no matter the prospective merits of their asylum claims.

On the other side, many of the defendants relied on financial harm that would be caused to them if the injunctions were continued. Some hotels claimed that their use for housing asylum seekers has allowed them to stay open, particularly as they are still trying to rebound from the downturn in business caused by the Covid-19 pandemic. Others claimed that the use of hotels for asylum seekers, presented as hostels for this purpose, has a detrimental economic effect on both development and the local tourist economy.

Holgate J refused to grant further injunctions and made clear that the public interest did not necessarily lay in the hotels favour in this instance:

“It is plain from the evidence that the Home Office is facing an unprecedented increase in the number of asylum seekers, the vast majority of whom have to be accommodated under the 1999 Act. As matters stand, there is no sign of this abating. The Home Office has therefore had to commission, as a matter of urgency, sole-use contracts for hotels in various parts of the country as contingency [initial accommodation] facilities. These contracts are also intended to alleviate conditions at the Manston processing centre. It can be seen from the evidence that without such facilities there is a real risk of some asylum seekers becoming homeless.

In reality, if either or both of the injunctions were to be continued, the Home Office would have to look for accommodation elsewhere. It is clear from the evidence that it is difficult to secure hotels suitable for single-use contracts. The supply is limited. In addition, the process involved takes several weeks. The court is not in a position to draw conclusions on the scope for alternative accommodation to be provided…

…

The evidence also makes it clear that in ordinary circumstances the Home Office would not wish to use hotel accommodation as contingency [initial accommodation], not least because of the cost to the public purse. This use has been presented to the court as a short-term solution to an acute problem. The contracts in these cases would last for up to one year.”

Conclusion

It is unusual to see a planning case here on Free Movement. The media portrayal of the use of hotels for asylum seekers is not the only viewpoint. The litigation certainly makes it look like certain local authorities are trying to find ways to ensure asylum seekers are not accommodated in their area, but the full motivation for the claims will no doubt come to light in the upcoming trial. Challenges to Home Office plans and policy can be brought in a number of fields. Meanwhile, the European Court of Human Rights just yesterday granted interim measures against Belgium authorities, who have been leaving hundreds of asylum seekers homeless and sleeping on the streets.

The Secretary of State is not a party to this case, only her third-party contractors are. But this is still a challenge to the government’s extensive use of hotels to accommodate asylum seekers. A separate, similar challenge has also been brought this month by Stoke-on-Trent Borough Council, which is also due to go to trial soon. These challenges may force the Home Office to consider its procedure, policy, and third-party contracts moving forward. Legal challenges against existing processes will keep the Home Office on its toes, hopefully working towards a more sustainable plan for the accommodation of those seeking refuge in this country.