The High Court has overturned a tribunal judgment that had instructed the Home Office to house refused asylum seekers until lockdown restrictions end. The decision in R (Secretary of State for the Home Department) v First-tier Tribunal (Social Entitlement Chamber) [2021] EWHC 1690 (Admin) is said to affect at least 1,000 people.

Asylum support during the pandemic has generated a serious volume of litigation. The ruling at issue here was handed down by the head judge at the asylum support tribunal on 29 April 2021, in the case of AM. The headline finding, as paraphrased by the High Court, was:

the health risks associated with the pandemic are such that the Secretary of State is legally required to provide accommodation and support not only to AM, but also to all destitute failed asylum-seekers, until step 4 on the Roadmap is reached.

The “Roadmap” is the government’s timetable for lifting lockdown restrictions in England. Step 4 — the removal of all legal limits on social contact — was slated to be “no earlier than 21 June“; it will now be either 5 or 19 July.

The Home Office challenged the AM ruling by way of judicial review, and has now won.

No human rights obligation to provide housing

Mr Justice Chamberlain’s judgment is extremely technical, taking in case law on Articles 2, 3 and 8 of the European Convention on Human Rights, all of which were in play in the AM decision. He concluded, first, that the state’s positive human rights obligations to failed asylum seekers did not require that they be supported until the pandemic is over:

(a) It is for the UK Government to decide how best to protect destitute asylum-seekers from the various threats to their life and health to which homelessness gives rise (including COVID-19). A broad margin of appreciation is to be accorded to it in taking that decision: see Budayeva, [134]; Stoicescu, [59]; Hudorovic, [144].

(b) The existence of a margin of appreciation at the international level does not necessarily mean that the national courts must accord the Secretary of State an equivalent margin to reach decisions about policy: R (Steinfeld) v Secretary of State for International Development [2018] UKSC 32, [2020] AC 1, [26] et seq.

(c) In this case, however, formulating policy in relation to the accommodation failed asylum-seekers requires the weighing of competing policy considerations and the making of predictive judgments about the consequences of particular measures. There are strong constitutional reasons for according the executive a broad discretionary area of judgment when performing these functions.

(d) The Accommodation Regulations reflect a legislative choice to discharge any positive protective duty by accommodating destitute failed asylum-seekers on condition that they take reasonable steps to leave the UK. In general, that is a legitimate policy, at least where the failed asylum-seeker is in a position freely to return home: Kimani, [49]. It falls well within the discretionary area of judgment to be accorded to the Secretary of State.

(e) In the absence of any explanation as to why AM is not in a position to return home, the Secretary of State was entitled to regard the offer of accommodation conditional on taking steps to leave the UK as a reasonable discharge of any positive obligation under Articles 2, 3 or 8 to protect AM from risks to his life and health.

Similarly, even assuming that the state has a positive obligation under Articles 2, 3 and 8 to protect the wider public from coronavirus, how to discharge that obligation is very much up to the government. There was, at any rate, nothing in the medical evidence to substantiate the argument that “failing to accommodate AM and others in his position will increase overall the risk of the health of the public”.

As such, “the Principal Judge was in my judgment wrong to conclude, for the reasons she gave, that the Secretary of State was obliged to accommodate AM”. The case has been sent back to the tribunal for reconsideration.

The upshot is that the pandemic no longer provides refused asylum seekers with an entitlement to support if they aren’t already in the system. Those who are already housed should however be protected by a settlement reached in a different case, in which the government agreed “not to restart negative cessations until step 4”. More detail on all this from the Asylum Support Appeals Project.