The High Court has rejected a challenge to the Secretary of State’s decision to move a group of Afghan families rescued from the Taliban in 2021 from one temporary hotel to another temporary hotel. R(HZ) v Secretary of State for the Home Department [2023] EWHC 660 (Admin) leaves open the possibility that Afghan families who came to the UK under the various Afghan resettlement schemes might be subject to numerous moves around the UK with little warning.

The challenge concerns ‘bridging accommodation’ provided to Afghan families after their arrival in the UK whilst they established themselves and prepared to move into accommodation in the private sector. It was an important commitment to ensure that people who had helped the UK in Afghanistan did not find themselves destitute on arrival in the UK. In reality, it has proved challenging for many families to move on into other accommodation and as a result many remain in the hotels provided as bridging accommodation. In the meantime, the families have put down roots in their communities through attending school and obtaining work.

The challenge concerned the Secretary of State’s decision to move families from one hotel to another hotel in a different part of the UK, which would lead to some families losing their employment and cause a break in the children’s education. The families were concerned that they would be subject to repeated moves between temporary accommodation.

Unfortunately, Mr Justice Henshaw concluded that the Secretary of State had reached a lawful decision about the move:

In these circumstances, and on a fair reading of the decision letters, I consider that the Defendant did balance the Claimants’ reasons for remaining in London against the considerations that favoured offering replacement bridging accommodation away from London, and there is no reason to believe that was other than a genuine exercise.

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In administering bridging accommodation under the resettlement scheme as a whole, the Defendant had to make provision for large numbers of individuals… The closure of the Southwark Hotel alone meant that new bridging accommodation had to be found for a significant number of people: the move required two coaches, five 16-seat taxis and five transit vans… The Defendant had to, or was at least entitled to, consider a broad range of considerations, including the migration pressure and cost factors referred to earlier, the prospects of scheme beneficiaries finding affordable permanent accommodation in due course in different areas, and the availability of education, work, health and other services. Education was thus one of a range of factors, albeit an important one. The scheme beneficiaries in bridging accommodation at the Southwark Hotel will have been in various different positions as regards education, health, employment and other matters. For example, as regards education, the Southwark School in October 2021 took in 22 secondary age students who were scheme beneficiaries, some in bridging accommodation at the Southwark Hotel and some in another hotel (which is still used for bridging accommodation). It is therefore likely that only a minority of the families in bridging accommodation at the Southwark Hotel included children attending the Southwark School. It is also relevant to recall that none of the scheme beneficiaries was obliged or required to move to one of the Manchester Hotels, though it is fair to add that practical constraints may have given them little real option at least in the short term.

In these circumstances, judgments had to be made about how detailed a level of enquiry should be made into the impact of a move on education and each of the other potentially relevant factors. It is true that more enquiries could have been made than the Defendant in fact made, but that is not the test… The Defendant was entitled to form a view about the appropriate level of enquiry in all the circumstances…In my judgment, a reasonable decision-maker could have settled on the nature and level of enquiries that the Defendant in fact undertook.

Concerningly, the judge also concluded that the section 55 of the Borders, Citizenship and Immigration Act 2009 ‘best interests’ duty for the provision of safeguards and welfare has no application in this context as the provision of bridging accommodation to families is not a function relating to immigration.

I consider the position in relation to asylum support, conceded in R(O) to fall within section 55(2)(a), to be distinguishable. As the Defendant points out, asylum support is intricately related to a pending asylum application. The duty under section 95 of the Immigration and Asylum Act 1999 is to provide support, including accommodation, to asylum seekers or dependants of asylum seekers who appear to the Secretary of State to be destitute or to be likely to become destitute. To qualify, the individual must require but lack leave to enter/remain in the UK, and must have an outstanding application for asylum. Thus the section 95 power to provide accommodation is directly parasitic upon the ongoing asylum decision-making process, even if it does continue for a period thereafter. Those who qualify for accommodation are subject to the exercise of other powers by the Secretary of State, for example the imposition of immigration bail conditions, which typically will include a residence condition. Hence the Secretary of State has the power to direct individuals to reside in the accommodation provided.96.

By contrast, the Claimants have been granted ILR and so have an unrestricted right to leave and enter the UK as well as to enjoy the benefits of settled status in the UK, including access to public funds. The Secretary of State has no outstanding role regarding their immigration status under the resettlement schemes. The Secretary of State has no power to impose bail conditions upon them, and no power to direct that any Claimant resides at a particular address. These distinctions, individually and cumulatively, mean that section 95 support relates to asylum (and immigration) in a significant way that does not apply to the support (over and above the grant of ILR) provided to individuals under the Afghan resettlement schemes.

Overall, the judgment is a disappointing result and will leave Afghan families who came to the UK under the resettlement schemes vulnerable to repeated moves between hotels while they try to establish themselves in the UK.