The High Court has rejected a challenge to the Home Office’s dysfunctional and chaotic accommodation system. The case is MQ, R (On the Application Of) v Secretary of State for the Home Department [2023] EWHC 205 (Admin).

The Claimant and her two young children had spent months in a hotel awaiting ‘dispersal’ to a self-contained flat. They were eventually relocated, but the claim continued. They argued that the Secretary of State was applying an unpublished policy requiring an elevated threshold of ‘exceptional circumstances’ before moving families out of hotels, with insufficient regard to the best interests of dependent children.

The Court instead chose to see a system beset by resource constraints and ad hoc (lawful) decision-making. Relying on NB & Ors, R (On the Application Of) v Secretary of State for the Home Department [2021] EWHC 1489 (Admin), a successful challenge to the disastrous Napier Barracks, HHJ Bird sought to reiterate that, when challenging the adequacy of asylum accommodation, “it is plain that the hurdle the Claimant has to overcome is a high one”. In other words, Napier was so bad, a hotel must be presumed to be good enough. You can read more about the judgment in NB here.

Claims for judicial review in the High Court on the adequacy of hotel accommodation are invariably fact-specific – but the scope for succeeding is greater than the tone of MQ would suggest, not least because there is older Court of Appeal authority on ‘adequacy’ and the requirement to have rational regard to specific needs.

The media attention on the cost of housing up to 40,000 asylum-seekers in hotels – “£5 million a day” – does not tell the real story of protracted misery many face spending months in ‘contingency accommodation’, awaiting dispersal or resolution of status.

Some recent cases of mine tell the tale: a four-year-old girl suffering severe asthma attacks due to structural damp; a profoundly deaf man isolated for months, hundreds of miles from his only support; an elderly couple with deteriorating physical health unable to leave their small room; a torture victim with psychosis struggling to sleep in a shared facility. The Defendant, through her private contractors, is showing a remarkable ability to find accommodation once claims are lodged.

Even for those whose conditions are objectively reasonable in the short to medium-term, there is the grind of surviving on £9.10 a week for all subsistence needs (aside from food, drink and toiletries). This is the experience of most asylum-seekers, unless you’re a Ukranian lucky enough to be put up by Grant Shapps. ‘Dispersal’ at least means moving to self-contained accommodation and greater autonomy.

Much depends on a Claimant’s vulnerability, the standard of the hotel and the length of time residing there. The Court in AMA v Secretary of State for the Home Department [2021] EWHC 2646 (Admin) (available on Westlaw) restated that ‘adequacy’ can depend on how long you have been in a place. It is not a fixed, timeless standard:

“Accommodation may be adequate if it is only to be occupied for a short time, but may become inadequate as time goes by. Indeed, that is what s.97 of the Act expressly refers to, the accommodation being adequate in the context of its being temporary. The parties have not been able to tell me how long it is expected before the claimant’s asylum claim will be finally determined, but it needs to be remembered that this is, in that sense, always temporary accommodation.

…

What is required is an objective assessment of what the claimant and her son need in the light of their particular circumstances, which includes her medical treatment and its effect on them both.”

That is both common sense and consistent with the approach taken in local authority accommodation caselaw.

At the end of 2020 the Home Office was still ostensibly telling its caseworkers – in a ‘Suitability of Contingency Accommodation’ policy – that children, the elderly, the disabled and victims of torture should not be allocated hotels. Her position now is unambiguously that hotels are suitable – and your wait for dispersal accommodation can stretch into years without falling into unlawfulness.

As for the backlogs in decision-making which led to the rise in the number of destitute people requiring accommodation (and the use of hotels) in the first place, the Illegal Migration Bill – by creating thousands of “inadmissibles” who are not removable – is only going to make matters worse.