Adrian Berry and Tim Baldwin acted in the case R (on the application of IO) v The Secretary of State for the Home Department  EWHC 3420 (Admin)
Tim Baldwin acted in the case R(AA) v Secretary of State CO/1612/2021
Blog post by Tim Baldwin of the Garden Court Chambers Community Care Team.
A number of cases have emerged recently before the High Court concerning asylum seekers in Bristol. In all of them, the Secretary of State failed to apply her own policy as set out in "Healthcare Needs and Pregnancy Dispersal Policy" and failed to provide any cogent evidence to support the decision making.
The case of R (on the application of IO) v The Secretary of State for the Home Department  EWHC 3420 (Admin) concerned a failed asylum seeker who had been provided with accommodation and support under section 4 of Immigration and Asylum Act 1999 (“IAA 99”). The Claimant challenged the Secretary of State’s decision to disperse him from accommodation he had occupied in Bristol for 3 years to accommodation in Gloucester. This case was part of 3 similar cases which had been brought at the same time with the two other cases settling. The Claimant was due to be dispersed on 18 August 2020 but refused to travel.
The Claimant suffered from poor mental health with a diagnosis of Post-Traumatic Stress Disorder (“PTSD”) and was receiving support in Bristol and had a support network in place. It was identified that the Claimant was receiving primary and secondary health care services and that this would be disrupted by the proposed move and he would lose access to the support he received including his support network in the Bristol area which enabled his access to medical treatment. The Claimant’s case was such that the move would be contrary to the Secretary of State’s own policy.
The Secretary of State’s decision was that it was not “imperative” that it was “medically essential” for the Claimant to live in Bristol. In respect of this decision, the Defendant sought the advice of Dr Keen, the Defendant’s medical adviser, on 14 August 2020 who was asked to respond to an email asking if it was “imperative that the claimant lives in Bristol”. Dr Keen’s advice was that “suitable psychiatric care and other medical and support services exist in other UK cities. I can’t find anything to indicate residing in Bristol is medically essential in this case”.
HHJ Cotter QC sitting as a Deputy High Court judge noted that at paragraph 27 and of the judgment
“27. I pause to observe that there is no reference to either an "imperative" need or to the location being "medically essential" in the Defendant's policy. Rather there are very different and broader considerations to be applied, including whether the dispersal may "adversely affect the mental health of an individual and the care he receives"
28.The e-mail to Dr Keen had no attachments and Ms Bayoumi was unable to help me with what he knew of the Claimant's representations and/or the two letters provided in support of it.”
The judge held that the decision of the Secretary of State to proceed with the dispersal was irrational and should be quashed. The judge gave five reasons:
“66. Firstly, to reach a rational decision required consideration of the Claimant's circumstances, all relevant matters including medical evidence and, significantly, the Defendant's own precautionary and detailed policy guidance. Further, it required consideration of the need to ensure that the Claimant understood why the dispersal (which was at very short notice) was still taking place notwithstanding the issues that he had raised and the need to consider these matters i.e. the basis of the decision.
67. In my view it was irrational and unreasonable of the decision-maker (whoever that was), taking into account basic common sense and the serious ramifications, to have reached the decision to simply proceed to dispersal without answering any of the points raised within the letter 13th August 2020 (including in relation to the policy) and leaving the Claimant in the dark as to the basis upon which the decision was taken and whether the issues had been addressed at all. No reasons have ever been given to explain justify the decision. I cannot accept Ms Bayoumi's submission that, given the "no choice" principle in relation to provision of accommodation, no detailed reasoned explanation was necessary.
68. In my judgment any decision-maker approaching the matter rationally would have recognised that an obvious consequence of providing no explanation for proceeding to dispersal was that the Claimant was unable to respond or make representations as to the adequacy or correctness of the reasons. He would not know whether the decision reached was that treatment could take place adequately in Gloucester (given the need for support) or whether the view taken was that the Claimant could travel back to Bristol. As a result, he could not point to the fact that adequate medical treatment for his PTSD through talking therapy and/or suitable support to enable him to access that therapy (something that had caused difficulty in the past), may not available in Gloucester or that the journey to Bristol was unreasonably long and/or he needed time for a suitable handover to take place. In my view, no rational decision-maker could take the view that it was appropriate and proper simply not tell the Claimant what the rationale for the decision was given the immediate and potentially severe impact on his health a fortiori when the Defendant's own policy stated that the dispersal process, wherever possible, must not adversely affect the mental health of an individual and the care that he receives.
69. Secondly, the decision to proceed without explaining the reasoning behind the decision was directly contrary to an express requirement of the Defendant's own policy and taken without any good reason. It was irrational to simply ignore the policy and give no explanation why.
70. Thirdly, it is a well-established principle that a failure to offer reasons for a decision may justify an inference that the actual reasons were inadequate and/or contrary to extant policy. In the present case, I have received no evidence about the decision-making process other than sight of the reply of 14th August 2020 (which provides no reasoning) and two emails (which raise obvious questions as the information provided to Dr Keen given the mandatory requirement as to the provision of information). My view is that given the reasons, arguments and evidence advanced by the Claimant and the importance of the decision, it is proper to draw the inference from the absence of explanation or reasoning for the decision that no evidence can be provided to show that a supportable decision was reached and that the decision-maker failed to make a proper reasoned and rational decision after due consideration of all relevant factors/evidence and in line with the policy.
71. Fourthly, the only indication within the available documentation as to the test or threshold applied by the decision-maker for departing from the no-choice principle was that the Claimant had to establish that it was imperative and/or a medical necessity that he remain accommodated in Bristol. The Defendant's own policy set out a detailed approach which did not contain reference to either concept and it was irrational and arbitrary to apply them to the Claimant. The raison d'etre of the policy was to prevent arbitrary decision-making and to provide structured consideration to avoid damage to the health of those who had been provided with accommodation. Mr Berry properly conceded that it may have been possible for a rational decision to have been reached, after the obtaining and consideration of all necessary information (which may have included requests for further information from the Claimant or the medical advisor) and consideration of the policy, that a dispersal could take place, probably with what he described as a "basket of measures" (including deferred dispersal; consideration of which was mandatory under the policy, and or ensuring a handover and /or funding to travel back to Bristol). However, the decision reached plainly did not address the matters raised in line with the policy as otherwise very different issues would have been raised with Dr Keen and more information obtained before it was reached.
72. Fifthly, given the content of paragraph 4.11 of the policy and the notification of a medical condition, the decision, without more, to continue to proceed to immediate dispersal to Gloucester within five days does not "add up".”
Thus the judge concluded the decision was irrational.
This case would have been considered a one-off event but for the emergence of another decision in the case of R(AA) v Secretary of State CO/1612/2021 the Secretary of State made a decision in respect of dispersal of an asylum seeker under s 95 of the IAA 1999 where this challenge related to the decision of 19 March 2021 to disperse the Claimant, who had been living in Bristol for some considerable time to accommodation but to refuse to provide the Claimant with suitable accommodation in Bristol. The Claimant had not been notified of any dispersal accommodation other than the Defendant will not provide it to him in Bristol. The Claimant suffers from poor mental health with a diagnosis of Post-Traumatic Stress Disorder and receives care and support in Bristol. On 19 March 2021, the Secretary of State on granting support stated in the decision letter "I don't think residing in Bristol is medically essential in this case provided the Applicant be assisted with engaging with the appropriate service at any dispersal location". In this claim, the similarity in the decision making to IO was identified and grounds of challenge setting out that the decision making did not comply with the policy in "Healthcare Needs and Pregnancy Dispersal Policy". HHJ Cotter QC on 5 May 2021 directed the matter be heard in a “rolled up” hearing on 4 June 2021. However, on the eve of the hearing of 3 June 2021 the Secretary of State sought to settle the case by offering accommodation to the Claimant in Bristol, with the withdrawal of the decision of 19 March 2021 to refuse to accommodate the Claimant in Bristol and pay his costs.
It appears, at least from these cases, that there may be systematic unlawful decision making by the Secretary of State by not engaging with her own "Healthcare Needs and Pregnancy Dispersal Policy" and giving inadequate reasons that do not form part of the guidance. It will be useful to monitor this decision making and any variation on the decision making concerning dispersals of asylum seekers and failed asylum seekers to accommodation and support in Bristol. We invite your comments and any experiences of Home Office decision making concerning dispersals of asylum seekers or failed asylum seekers to Bristol (or to any other location) and compliance of that decision making with the requirements of the policy on dispersal.