Home Office breached statutory duty to ensure provision of adequate accommodation for pregnant asylum seeker and children

Monday 31 July 2023

Blog post by Maria Moodie of the Garden Court Chambers Immigration and Community Care Teams.

Judgment: R (SA) v SSHD [2023] EWHC 1787 (Admin) - Mr Justice Fordham, 14 July 2023

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Factual Summary

The Claimant was a destitute asylum-seeker who was heavily pregnant and the mother of three young children.

The family were provided with initial accommodation by the Secretary of State for the Home Department (SSHD) at a hotel in Croydon and subsequently moved to alternative initial accommodation at a hotel in Peckham.

The claim challenged the adequacy of s.95 IAA 1999 initial accommodation provided by the SSHD and/or the SSHD’s unlawful failure to relocate the family to suitable dispersal accommodation.   

Legal Framework and Principles

Pursuant to s.95 and 96 IAA 1999, the SSHD is responsible for providing destitute asylum seekers with accommodation and support adequate for their needs.

Although third-party contractors are often used to provide accommodation, the SSHD remains responsible for compliance with the statutory duty to provide adequate accommodation and meet essential living needs (see, R (DMA) v SSHD [2020] EWHC 3416 (Admin) at § 100).

Pursuant to Regulation 4(2)(3) of the Asylum Seekers (Reception Conditions) Regulations 2005 (SI 2005 No.7), in the provision of accommodation the SSHD must take into special needs of identified vulnerable groups, such as pregnant women or lone parents with minor children.

In this judgment, Fordham J provides a helpful summary of the case law relevant to the ‘adequacy’ of IAA 1999 accommodation provided by the SSHD [at § 8 – 10]:

“There is a twin-track test for deciding whether the Home Secretary's duty has been discharged. This was well-established in relation to essential living needs (NB §§145-153). It is now recognised in relation to adequate accommodation (NB §§154-155, 161). This matches "housing" being a "material reception condition" in the foundational EU Directive (NB §154), with its continuing impact (NB §§157-158). Under the twin-track test, a first question is whether the Home Secretary's response meets an 'objective minimum standard', whose delineation is a hard-edged question for the judicial review court.

A second question is whether the response involves an evaluative judgment which is reasonable, another objective standard but one involving the familiar secondary judgment, which respects the latitude afforded to the primary decision-maker. Both Mr Gardner and Ms Brown support that twin-track test. Ms Brown explains its logic by contending that the 'objective minimum standard' is reserved for features – which in the case of adequate accommodation would include windows and heating – which every asylum-seeker must necessarily need and receive. But that rigidity of logic cannot be right, because "nappies, formula milk and other special requirements of new mothers, babies and very young children" recognisably fell within the objective minimum standard for essential living needs (NB §151).

As with essential living needs, the question whether adequate accommodation is being provided in discharge of the statutory duty, requires this principled approach.
(1) Adequacy must be tested by reference to the needs of those persons to whom the duty is owed, in a context where accommodation is being provided to prevent destitution (A §§52-53; MQ §127a).
(2) Adequacy must be tested by reference to – and so measured against – the individual circumstances and needs of each relevant individual, including each dependent, having regard to the age of any child (A §53; NB §167, MQ §127b).
(3) Adequacy must ensure, as an objective minimum standard, a dignified standard of living, which is adequate for health and is capable of ensuring subsistence (NB §§153, 155, 161, 171).
(4) The evaluative judgment of adequacy of accommodation, carried out for the Home Secretary, must satisfy basic standards of reasonableness (and any other relevant public law grounds) (NB §§150, 161, 171).
(5) These are high thresholds for an asylum seeker to meet (NB §161).

Adequacy is informed by length of time (A §54, NB §149, MQ §127c).
(1) Accommodation may be adequate only in the short-term (A §59, MQ §128), and not adequate on a long-term basis (NB §159), becoming unsuitable by reason of the passage of time (A §55).
(2) It is necessary to look at the totality of accommodation (MQ §169), the conditions and how long they are being experienced (NB §172).
(3) There may also be a change in circumstances or change in needs which mean accommodation is no longer adequate (A §59, NB §160).
(4) It is relevant to consider the prospective picture and the explanation given: the period during which the accommodation was or is "likely to be" occupied (A §54), the "uncertainty" (NB §149), whether the "stay was only to be a short one", and whether those affected were "reliably informed that this was the case, so that they had the comfort of knowing that their stay was finite" (NB §165).”


Fordham J found that the SSHD had breached the statutory duty owed to the Claimant and her children to ensure the provision of adequate accommodation (specifically, a breach on each track of the test established in R (NB) v SSHD [2021] EWHC 1489 (Admin) [2021] [at § 161 and 171]) and that the SSHD’s view that the hotel accommodation was adequate was unreasonable in the public law sense [at § 12].

In support of his findings, Fordham J relied on the following factors:

  • There had been an unjustified departure from the Healthcare Needs and Pregnancy Dispersal Policy, which contained specific guidance in relation to the needs of pregnant applicants, both procedurally and substantively.
  • Procedurally, the SSHD provided no reasoning to show that the actions and process were compatible with the policy, and there was no evidence of any evaluative decision.
  • Substantively, the laundry facilities at the hotel were inadequate for a family, the hotel room where the family had to live, eat and sleep was severely cramped, and the hotel had no communal dining space or area where the children could do their homework and no children’s play area.
  • The length of time during which the family were accommodated in these conditions was a decisive factor in finding it to be inadequate.

Finally, reinforcing his findings, Fordham J referred to (i) the report presented to Parliament in May 2022 by the Independent Chief Inspector of Borders and Immigration on the issue of hotel initial accommodation and (ii) the abject absence of any record-keeping or evaluative assessment documentation from the SSHD, noting in relation to the latter: “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.” [at § 26].

This is a paradigm case of the problems and failings arising from the SSHD’s widespread use of unsuitable initial accommodation for vulnerable asylum seekers that is exacerbated by the severe and persistent delays within the Home Office.

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