An asylum-seeking mother and her four children were placed in inadequate hotel accommodation for over a year, the High Court has found. The case is R (on the application of SA) v Secretary of State for the Home Department [2023] EWHC 1787 (Admin). It is a striking example of a judge displaying both faithful adherence to the law and recognition of the real people whose lives are affected by Home Office decision making.

The facts

SA claimed asylum in March 2022. She was heavily pregnant and had three dependent children then aged 10, nine, and three. In May 2022, the Home Office accepted they were destitute and moved them to a hotel in Peckham. The baby was born in June, and the family were moved to a larger room in late November 2022. The hotel accommodation was supposed to be temporary, but they were still there when the judicial review was heard earlier this month.

Both rooms seem to have been far too small for a family of five. Mr Justice Fordham described the first room as ‘severely cramped’ and the second as ‘seriously cramped’. The first was dominated by a double-width bunk bed without enough floorspace even to sit down. The second had two single-width bunk beds and slightly more floorspace.

There was no separate dining area in the hotel, so the family had to eat in their rooms. Nor was there anywhere else in the hotel for the children to play or do their homework. The Home Office adduced emails in which its contractor claimed that there was actually a ‘communal play space’ and ‘a spacious area with table for the kids to study’, but no evidence of these was produced. Fordham J accepted SA’s evidence, accompanied by photographs of the hotel, that no such areas existed in practice.

SN had also faced practical problems in relation to her baby daughter’s clothes. The hotel collected laundry once a week and returned it the next day. This wasn’t often enough for SN, because she didn’t have many baby clothes and had to change them three times a day. She bought her own detergent and began to wash and dry the baby clothes herself. The hotel told her not to do this because it was causing damp and condensation. She therefore stopped, and the laundry problem continued.

Inadequate accommodation

The Home Office is legally obliged to provide ‘adequate’ accommodation to asylum seekers and their dependents who would otherwise be destitute. It must also provide for their ‘essential living needs’.

These legal duties arise under sections 95 and 96 of the Immigration and Asylum Act 1999. When making that provision, the Home Office is also required to take into account the special needs of anyone classed as a ‘vulnerable person’ under regulation 4 of the Asylum Seekers (Reception Conditions) Regulations 2005. This includes minors, pregnant women, and lone parents of minor children.

Fordham J summarised the existing case law on adequate accommodation, including the successful challenge to the appalling conditions at Napier barracks. Adequacy must be assessed with reference to the individual needs and circumstances of the people being accommodated. It must ensure, as a minimum, ‘a dignified standard of living’. The length of time spent there is relevant, too; some accommodation may be suitable for a short period but not in the long term.

Applying this to SN’s case, Fordham J concluded that the accommodation was inadequate. SN and her children were ‘vulnerable persons’ under the regulations, but there was no evidence that this was taken into account in the decisions to move them to the hotel and keep them there. The Home Office’s own policy said that pregnant women should be moved from temporary initial accommodation as soon as possible, but this hadn’t been considered. The cramped room, the absence of separate eating facilities and a space for the children to play or do their homework meant the children’s needs weren’t being met.

All of the problems with the hotel might have been tolerable, said Fordham J, if the family were only there for a short time. But they had been there over a year, sharing cramped hotel rooms with little privacy and with nowhere else to go. They had no idea how much longer their stay would be. The length of time involved made SN’s case different from the recent unsuccessful claim in R (on the application of MQ) v Secretary of State for the Home Department [2023] EWHC 205 (Admin), discussed here.

Fordham J therefore granted the judicial review. He ordered the Home Office to provide adequate dispersal accommodation to SN and her children within one week of the judgment.

Home Office failure to engage

Fordham J commented on the ‘complete absence of any record-keeping or decision-making or evaluative assessment’ in the papers before him.

There was no evidence of the reasons behind the action (or inaction) taken in SN’s case, and nothing to show that the Home Office had tried to gather relevant information about her circumstances. This, he highlighted, was a choice on the Home Office’s part:

There was ample opportunity to file evidence…That opportunity was not taken. A choice was made. The failure to engage by demonstrating and evidencing any evaluative decision-making can have practical consequences when the Court comes to grapple with the legality of the way in which a statutory function has been approached. There is a limit to the extent to which submissions – as opposed to evidenced decision-making – can successfully invoke the latitude built into the public law standards of reasonableness review. A judicial review defendant comes before the Court at a substantive hearing having had the full opportunity to explain, if it is able to do so and if it wishes to take that opportunity.

The most natural inference from the failure to produce reasoned assessments, decisions, and records, he said, was that there weren’t any.

Concluding thoughts

The Home Office continues to proclaim new and cheaper alternatives to housing asylum seekers in hotels. The Bibby Stockholm, a barge newly docked in Dorset, will no doubt give rise to a further series of judicial review challenges. In the meantime, SN is a timely reminder of the day-to-day reality faced by the often vulnerable people at the centre of the government and media rhetoric.

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