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Tribunal gives guidance on decision making process for moving people onto the Bibby Stockholm

The Home Secretary has been told by the Asylum Support Tribunal to re-make the decisions to stop the asylum support for three people who refused to move to the Bibby Stockholm barge. In doing so the tribunal also set out the process that should be followed for any such decisions to be lawful.

The three linked appeals in AW & AM & BG v Secretary of State for the Home Department AS/23/11/45804 & AS/23/11/45824 & AS/23/11/45796 were against the decision of the Home Secretary to stop their section 95 asylum support, which provided them with subsistence and accommodation, on the grounds that they were in breach of a relevant condition on which their support was based. The relevant conditions were that they “must follow the travel arrangements made for you. For example, moving to another property” and “You must live at the authorised address”.

Background

On 25 October 2023 AW was sent a notice to quit and instructions to move to the Bibby Stockholm by 6 November. If he felt this move was unsuitable for him he was instructed to make representations on this point by 1 November. He was told that if he did not move to the barge on that date or make representations by the given deadline then in line with the guidance on “Failure to travel to Bibby Stockholm” he would be evicted. His space on the barge would be held for him a further five days after that, but if it were not taken up his support would be stopped and he would no longer be able to access asylum support.

AW did not move, he was evicted on 6 November 2023, and he did not accept the space on the barge following that. On 16 November a written decision to stop his support was sent. He appealed that decision on 20 November. The appeal form was completed by his GP who stated that among other issues, AW had told her he has water phobia.

AM was sent his notice to quit on 26 October and he made representations on 2 November that relocation was unsuitable as he was enrolled on an English language course in Crawley, he had entered the UK legally, and he was receiving physiotherapy in Crawley. On 6 November 2023 he was told that these reasons did not meet the Allocation of Asylum Accommodation Policy criteria and he would be moved to the barge on 7 November.

AM did not move to the barge and was evicted on 8 November. He did not take up the available space on the barge after that. On 23 November the decision to discontinue his support was sent. On 28 November AM appealed against the decision stating that he had been tortured in Egypt, cannot live in a closed place, that the barge reminded him of prison in Egypt and he nearly drowned as a child which had left him fearful and anxious about the sea.

BG was sent a notice to quit on 25 October 2023 with instructions to move to the barge on 6 November 2023, any representations to be made by 1 November 2023. He did this on 26 October 2023 stating that he has breathing problems made worse by damp and cold, he is blind in one eye, he has a bullet fragment lodged in one leg, and he has mental health issues including post-traumatic stress disorder, sleep deprivation and suicidal ideation all of which had improved since living in Bristol.

On 31 October this was rejected on the grounds that the reasons given did not make him unsuitable for the barge and they had been rejected by the Home Office Independent Medical Adviser, Dr Keen. BG did not move to the barge, on 6 November 2023 he was evicted and he did not subsequently move the space held for him. On 15 November 2023 a letter telling him he was no longer entitled to support was sent to the address he had been evicted from on 6 November. He appealed the decision on 19 November 2023.

The appeal

In response to a request for information, the Home Secretary provided more details about accommodation on the barge, access to medical facilities, ability to access asylum support at a later date and importantly that the appellants would remain entitled to section 95 support pending the outcome of the appeal.

The tribunal referred to R v London Borough of Barnet ex parte Khawaja & Khera [1984] 1 AC 74 (HL) and said that given the “profound consequences of evicting an appellant, namely a risk that they may become destitute if left without basic food and shelter, in breach of their Article 3 ECHR rights, a high degree of probability is required when making such a decision”. The Home Secretary bears the burden of showing that there is a breach of conditions with a “high degree of probability”. In R (Hetoja) v SSHD [2002] EWHC 2146 (Admin) it was held that the Home Secretary is obliged to consider the individual circumstances of the applicant as they relate to his accommodation needs.

The burden is first on the Home Secretary to establish the breach, then on the appellant to demonstrate that he has a reasonable excuse for any breach [62].

The main issue for the tribunal to decide was whether the appellants had a reasonable excuse for their failure to comply with the condition that had been breached and whether that breach was “persistent and unequivocal”. In addition, the tribunal was asked to consider whether the decisions to stop support would leave the appellants destitute, in breach of their article 3 ECHR rights.

It was argued on behalf of the appellants that the Home Office approach was flawed by its focus on the need for a medical diagnosis to resist a move to the barge, as other factors are equally important [83]. The correct approach would be to consider the medical evidence as well as the personal circumstances of the appellants and to then decide if they have a reasonable excuse to refuse to move to the barge.

It was acknowledged on behalf of the Home Secretary that if the appellants were left without section 95 support they would be destitute, but it was argued that this was by choice [87]. The tribunal was asked to provide guidance for caseworkers and the Independent Medical Adviser Dr Keen (“no stranger to this Tribunal” [86]) on the correct methodology to use in these decisions.

The judge emphasised that the outcome is the decision of the caseworker, not the medical advisors, stating:

Dr Keen’s role is to provide an expert opinion to caseworkers … within the limited extent and character of his expertise. In particular, caseworkers must remember that Dr Keen is also not a psychiatrist and thus not qualified to give expert opinions on mental health issues (Shala).

The judge set out the following findings for the steps that must be taken before a decision to stop asylum support can lawfully be made:

Was there a breach of conditions?

In these appeals, the answer was yes, there was a clear breach in the failure to move to the barge

Was the breach persistent and unequivocal?

In each case there were two refusals (pre and post-dating eviction), and this was accepted by the judge as being a persistent and unequivocal breach.

Was the breach without reasonable excuse?

In AW’s case, the evidence amounting to a reasonable excuse post-dated the decision to stop his support, the judge said that the Home Secretary must re-make the decision on whether or not he is entitled to section 95 support.

In AM’s case, it was stated that Dr Keen’s response … failed in my view to engage individually with AM’s reasons and personal circumstances” and the Home Secretary failed “to give individual, objective and impartial consideration” to those circumstances. The Home Secretary was ordered to remake the decision.

For BG, the judge said that:

Dr Keen failed to address BG’s individual circumstances as he was required to do under Home Office policy and guidance… At no stage was consideration given to whether a referral to a Home Office psychiatrist might be more appropriate than to Dr Keen, who is not a psychiatrist. I find this particularly troubling given the recent death by suicide of a resident on the BBS barge.

BG’s case was also sent back to the Home Secretary for a fresh decision.

The judge said that as the practical effect of the decision was that the appellants would be offered Home Office accommodation and subsistence pending re-assessment of their case it was not necessary to decide the issue of whether they are destitute in the absence of support being provided, and if so whether this would breach article 3.

The judge expressly said that nothing in the judgment is to be taken as meaning that any of the appellants are unsuitable for the barge.

Conclusion

The fact that the guidance was already on version 3 within six weeks of first being published is not evidence of good policy making, and the poor handling of cases certainly reflects that. While not making any comment on the suitability of the barge, or of the applicants to be moved to it, this is a useful decision as it makes clear that the Home Office must improve its decision making in respect of sending people to the barge, and that it should be taking into consideration a wider range of factors than has been the case previously.

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Sonia Lenegan

Sonia Lenegan

Sonia Lenegan is an experienced immigration, asylum and public law solicitor. She has been practising for over ten years and was previously legal director at the Immigration Law Practitioners' Association and legal and policy director at Rainbow Migration. Sonia is the Editor of Free Movement.

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