High Court finds that three men were unlawfully accommodated at Wethersfield

Three individual claimants have succeeded in a judicial review claiming that they had been unlawfully accommodated at the former RAF base in Wethersfield. The court also held that the Home Office had unlawfully breached the Public Sector Equality Duty. The case is TG & Ors v Secretary of State for the Home Department [2025] EWHC 596 (Admin). 

Background

There were four lead claimants, with another six cases stayed behind this one. The first three claimants submitted a consolidated statement of grounds and facts and the fourth claimant argued his case separately. Each of the claimants arrived in the UK in 2023 and claimed asylum. They were destitute and so eligible for section 95 support.

On 12 July 2023 former RAF base Wethersfield opened as asylum accommodation, operated by Clearsprings Ready Homes, and each of the claimants was accommodated there for a period between July 2023 and March 2024. None were still at Wethersfield at the date of the hearing, so they were seeking a declaration and damages in respect of their time there.

Each of the claimants challenged their accommodation at Wethersfield on the grounds that they were vulnerable in some way, including having a disability, being a victim of torture and/or trafficking and/or experiences of serious physical and/or psychological violence. It was submitted that these vulnerabilities were either known to the Home Office, should have been known if reasonable inquiry had been made, or were drawn to her attention during the period the claimants were accommodated at Wethersfield. The failure to act on the evidence and to transfer the claimants out of Wethersfield before claims for judicial review had been lodged was said to be unlawful.

Unsuccessful grounds

The decision runs to almost 600 paragraphs (136 pages) and there were several grounds of challenge. For all of our sakes I am going to focus on the grounds that succeeded but will set out very briefly the arguments that were rejected so if you are particularly interested in a certain point you can go to that section of the judgment.

The grounds by the first three claimants that were dismissed by the court included that the process for selecting people to go to Wethersfield was unlawful, that there was a breach of the Equality Act 2010 relating to failure to make reasonable adjustments for disabled people, and the policy was in breach of article 4 in saying that victims of trafficking would only be deemed unsuitable for Wethersfield once they had received a positive reasonable grounds (first stage) trafficking decision.

Also dismissed were arguments that there was a breach of the Public Sector Equality Duty in relation to the risk of racial harassment and that inadequate safeguarding on race discrimination breached the Equality Act 2010. It was also unsuccessfully argued that there had been a breach of article 8 in placing the claimants there.

The fourth claimant, MJ, argued that Wethersfield was not adequate accommodation and this breached sections 95 and 96 of the Immigration and Asylum Act 1999, and that there was no lawful system in place for allocating and monitoring at Wethersfield.

It is worth noting that the court considered that there was “force” in the criticisms made of the current arrangements for monitoring suitability, and noted that the “fact that the defendant’s witnesses acknowledge the need for improvements in staff training is of particular concern, as are the observations made by the MTC Report about the pressure on welfare staff at the site”. However the court considered that problems did not reach the threshold of a breach of the Tameside duty.

The judicial review

The systemic challenge

The third ground of challenge was that version 11 of the Allocation policy (which I wrote up at the time, flagging concerns) was unlawful. It was argued that the guidance fails to tell caseworkers that they need to take reasonable steps to gather information and that it instead unlawfully moved the responsibility to gather evidence onto the person requesting the move, in breach of the Tameside duty. It was also argued that the requirement that people provide verifiable expert or professional evidence of their unsuitability for Wethersfield was unlawful and that there had been a failure to comply with the Public Sector Equality Duty under section 149 of the Equality Act 2010.

Although judicial review cases are usually determined on the basis of the situation at the time of the decision, the court was asked and accepted that it was appropriate to take account of the current position as much as it was possible to do so as the unlawful elements of the policy had been retained in version 12. Version 12 was similar to version 11, which expanded the types of vulnerable people who were deemed suitable to be accommodated at sites such as Napier, the Bibby Stockholm, and Wethersfield.

This meant that when considering the systemic challenge to the Allocation policy, the court made its decision based on version 12 dated 27 March 2024, even though that had not been in force when any of the claimants were accommodated at Wethersfield.

The court dismissed the argument that there had been a breach of the Tameside duty of inquiry in requiring the vulnerable person to provide evidence of their unsuitability for Wethersfield, finding that the guidance “is consistent with the statutory arrangements for the defendant’s consideration of special needs when making decisions on applications for support under sections 95 or 98 of IAA 1999”. For similar reasons, the ground that the guidance unlawfully requires people to provide evidence in order to be deemed unsuitable for Wethersfield was dismissed by the court, which said [at 289]:

Guidance to caseworkers that they should generally look for supporting documentation, particularly verifiable expert or professional evidence, when an applicant asserts that he has special needs is in accordance with that statutory context. It is not unlawful for the defendant to give policy guidance to caseworkers on the relative weight which she expects to give to different categories of evidence. Had the policy guidance advised caseworkers that in the absence of supporting documentation from support services or verifiable expert or professional healthcare practitioners, the applicant is suitable for accommodation at Wethersfield, its lawfulness might be open to question as being too rigid an approach to case-by-case decision making.

The court said that the evidence showed that people who want their suitability reviewed “are generally able to seek supporting evidence from a range of support services, including medical practitioners and other professionals”. This comment seems to overestimate how difficult it is to access those services, and fail to take into account those who never manage to do so.

The final part of this ground was the failure to comply with the Public Sector Equality Duty as set out at section 149(1) of the Equality Act 2010.

A ministerial submission was made on 10 January 2024 in support of the changes to the suitability criteria in version 11 of the policy as follows [at 304]:

We recommend removing the blanket prohibition in the [Allocation Policy] preventing some vulnerable individuals from being moved to large sites. Instead, we propose that claims are decided on a case-by-case basis, and that vulnerabilities should ordinarily be substantiated by the evidence of medical professionals.

The reasons given for the change included: “To mitigate against the risk of individuals abusing the system by making unsubstantiated claims of unsuitability, increase the numbers of individuals suitable for large sites, and reduce reliance on hotels”. This appears to be another example of the Home Office making unevidenced claims of “abuse” in support of a policy change to make people’s lives more unsafe.

The claimants argued that this change of policy required an assessment of the equalities implications. The Home Office sought to rely on an equality impact assessment dated 10 January 2024, which frankly speaking was a bold move, given the contents set out at paragraphs 308 to 313 and described by the court as making [at 319]:

no attempt to assess the equalities implications of the change in policy which was then proposed, the effect of which was that asylum seekers who were disabled or had serious mental health issues may henceforth be judged to be suitable for accommodation at Wethersfield provided that their special needs were able to be met at the site. That is a most serious and inexplicable omission, particularly in the light of Ms Stratton’s evidence that the Policy EIA was prepared and submitted for ministers’ consideration precisely to enable the equalities impacts of that significant change in policy to be considered. It amounts to the clearest failure on the part of the defendant to fulfil the PSED. This is not a case in which the question is whether the Policy EIA properly fulfils the defendant’s duty to have due regard to the statutory objectives in section 149 of EA 2010. In this case, the only conclusion I am able to reach on evidence is that the defendant did not attempt to assess the equalities impacts of the proposed policy change later promulgated under version 11. That remains the factual position, since there was no subsequent assessment of the policy change when it was carried forward into the current version 12 of the Allocation Policy.

The claimant therefore succeeded on this ground.

Individual challenges – TG

TG was placed in Wethersfield on 24 August 2023 and the same day it was noted in his initial health screening that he was a victim of trafficking, no referral was made to the National Referral Mechanism. On 26 September 2023 his solicitors sent a letter before claim alleging that he was not suitable to be accommodated at Wethersfield and asking that he be urgently moved. On 9 October 2023 he was finally referred to the National Referral Mechanism for consideration of whether he was a victim of trafficking and a positive reasonable grounds decision was made the same day but notified to TG one week later.

A further pre action letter was sent by his solicitors and TG’s support worker at Migrant Help also wrote to the Home Office requesting his urgent relocation away from Wethersfield because of the impact it was having on his mental health. Further requests were made, with no response from the Home Office and so a judicial review was lodged on 18 November 2023 and TG was moved two days later.

The Home Secretary conceded that TG should have been referred into the NRM and found not suitable for Wethersfield on the basis of his screening interview dated 21 August 2023. In light of this concession, the court held that TG had been unlawfully accommodated at Wethersfield for the entirety of his time there. It was also held that there had been a breach of the duty to make reasonable adjustments because of his depression and post-traumatic stress disorder.

Individual challenges – MN

MN was moved to Wethersfield on 12 July 2023, having been told he would be there two or three months. In November 2023 MN started to experience negative thoughts and became withdrawn. He saw people who had arrived after him be moved on from the site and this gave him a sense of despair. On 5 December 2023 he contacted Care4Calais with suicidal ideation, they raised safeguarding concerns with the welfare team and Migrant Help.

On 11 December 2023 Care4Calais sent a pre action letter explaining why he was unsuitable for Wethersfield. On 18 December 2023 Home Office solicitors responded stating that a welfare check had been carried out and MN would not be moved. On 3 January 2024 they sent a further response stating that he remained suitable under the Allocation policy to remain at Wethersfield. A further pre action letter was sent on 8 January 2024 with more medical evidence.

The judicial review was lodged on 22 January 2024 and on 30 January 2024 further medical evidence following a psychological assessment was provided. An interim relief hearing was listed for 27 February 2024 and although there was still no firm response from the Home Office’s medical team, a decision was taken to transfer MN on 23 February 2024. The court held that the Home Office had been obliged to review MN’s suitability for Wethersfield following receipt of the letter of 30 January 2024 and this was the point where his accommodation there became unlawful, until his transfer.

Individual challenges – HAA

HAA is a Somalian national who was transferred to Wethersfield on 4 October 2023. On 26 November 2023 two residents were attacked in the canteen, the attack was believed to be racially motivated and there had been earlier incidents in October, all targeting Black Africans. One of the victims was HAA’s roommate and he required hospital treatment for a serious injury.

On 21 December 2023 Care4Calais sent a pre action letter explaining that HAA had suffered a deterioration in his mental health since being at Wethersfield and a transfer was requested. Another racist incident took place on 26 December 2023, this time HAA was a target. The next day HAA was found on a windowsill, threatening to jump. On 28 December 2023 safeguarding referrals were made by Care4Calais and Essex County Council’s Adult Social Care team. On 15 January 2024 the Home Office concluded that HAA would remain at Wethersfield.

On 19 January 2024 an application for judicial review and interim relief was made and on 26 January 2024 HAA was moved out of Wethersfield and into single room occupancy accommodation. The court concluded that HAA had been unlawfully accommodated at Wethersfield from “shortly before he was transferred to alternative asylum accommodation on 26 January 2024” [at 549].

Conclusion

I have omitted much of the detail of what happened in those individual cases, but none of the mishandling of those cases seemed particularly exceptional to me (egregious yes, unusual no). So my main takeaway from this is that it is a decision that will likely encourage the Home Office to leave more people in Wethersfield for longer, given the difficulties in meeting the evidential threshold, but it should also encourage more individual challenges by people who are placed there.

We have seen from the Home Office’s evidence that a high proportion of those moved from Wethersfield have been moved in response to a pre action letter, and three of the four claimants here have been successful in their individual claims. I expect that many of the errors there are still taking place in other cases, and that this is unlikely to be the last decision we see on Wethersfield, not least because of the six stayed claims.

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