Sonali Naik QC and Ali Bandegani of Garden Court Chambers represented interveners JCWI.
Blog post by Connor Johnston of the Garden Court Chambers Community Care Team.
R(NB and others) v Secretary of State for the Home Department  EWHC 1489 (Admin), 3 June 2021
The Claimants were six asylum seekers accommodated by the Defendant at the Napier military barracks on the outskirts of Folkestone in Kent, under Immigration and Asylum Act (‘IAA’) 1999, s95(1). The barracks had been adopted for use for this purpose in September 2020, as a result of increased demand for asylum support accommodation arising from the exigencies of the COVID-19 pandemic. The barracks were managed on behalf of the Defendant by Clearsprings Ready Homes.
The accommodation at the barracks consisted of dormitories with shared bathroom and toilet facilities. By mid-November 2020 there were 414 asylum-seekers housed at the barracks, sleeping 12-14 to a dormitory with partial plywood partitions between the sleeping spaces, and sheets or curtains covering the entrances. As a result of this and other factors, on 30 November 2020, the Crown Premises Fire Safety Inspectorate advised that the arrangements at the barracks did not protect the occupants from serious or significant risk of harm and action was required to ensure their safety. On 29 January 2021, following a disturbance, a fire was started in one of the accommodation blocks.
Public Health England (PHE) had advised that the barracks were not suitable to be used to accommodate asylum-seekers during the pandemic. But that if they were to be used for that purpose, steps should be taken to reduce the risks of infection spreading. However, in January 2021 there was a major outbreak of COVID-19.
The barracks were surrounded by an 8-foot barbed wire fence and on 15 January 2021 the residents were told that they were not to leave the site ‘under any circumstance’. That instruction remained in place for over a month.
Conditions at the barracks were acknowledged by the Defendant to be ‘basic’ and ‘slightly run down’ and, in consequence, the Defendant took the view they would only be suitable for healthy adult males. Suitability assessment criteria were introduced with that objective in mind, which were intended to be used to identify asylum seekers who should not be accommodated there because of their particular circumstances, including their mental or physical health and other vulnerabilities arising from experiences before coming to the UK.
The Claimants had all experienced trafficking and/or torture prior to their arrival in the UK and, in several of their cases, there was evidence that they had pre-existing mental health conditions. This meant that, under the Defendant’s suitability criteria, they should not have been transferred to the barracks. Each of them experienced a deterioration in their mental health during their time at the barracks and all were diagnosed with mental health conditions including PTSD and depression. They were only transferred out of the barracks following the threat, or initiation, of legal proceedings.
In their judicial review claim the Claimant sought to challenge the Defendant’s decision to accommodate them at the barracks arguing that:
- The accommodation was not ‘adequate’ for the purposes of s96 IAA 1999, read with Directive 2013/9/EC, which sets out minimum standards for the reception of asylum seekers, and/or it breached the Defendant’s own representations that the accommodation conformed to her general standards for such accommodation set out in the Asylum Accommodation and Support Services contract (‘the AASSC’).
- The Defendant’s system for deciding who met the suitability criteria to be accommodated at the barracks was flawed, both in terms of the initial transfer decision and the monitoring/review of suitability post-transfer.
- Accommodating the Claimants at the barracks was contrary to Articles 2, 3 and 8 ECHR.
- There were periods during which the restrictions on the Claimants movements, including a curfew between 2200-0600 and the period following the 15 January 2021 instruction, constituted false imprisonment and/or a breach of Article 5 ECHR.
Linden J allowed the claim on grounds 1, 2 and (in part) 4.
In relation to ground 1 (adequacy), he held that:
- The rights under the Reception Directive, relating to support provided under s95 IAA 1999, continue to apply after 31 December 2020 by virtue of the European Union (Withdrawal) Act 2018, s4. The minimum standards of living required by the Reception Directive constituted an objective standard, compliance with which was to be adjudicated on by the court, and not a subjective one. A decision by the Secretary of State that accommodation not meeting those standards was ‘adequate’ for the purposes of s96 IAA 1999 would not be lawful or rational. See -.
- The fact that accommodation is temporary is relevant to the question of adequacy. Accommodation that is adequate in the short term may not be adequate in the long term. In addition, accommodation that is adequate initially may cease to be adequate as a result of changed circumstances. See -.
- The Claimants were required to show that the accommodation at the barracks did not meet the minimum standard ‘to ensure a standard of living adequate for the health of [the Claimants] and capable of ensuring their subsistence’. As such, the standard of adequacy was a ‘low one’. See .
- Nevertheless, the Defendant had not met this standard. The Defendant had failed to ensure that the barracks complied with the advice of PHE not to use dormitory-style accommodation, or to keep numbers below six per dormitory. The Defendant had also not dealt properly with the fire risk. This meant that the Defendant had failed to ensure a standard of living adequate to the health of the Claimants. This was true whether these two points were taken in isolation or taken cumulatively with the ‘detention-like-setting’, the basic and run down standards, the lack of privacy, the standards of cleanliness, overcrowding, the length of time people were being accommodated at the barracks, and the effect of the accommodation on the Claimants’ mental health. See -, and  & - in particular.
- Departing from the advice of PHE without good reason was, in any event, irrational. See .
- These conclusions did not rely on the Claimants’ argument that the barracks fell below the standards set out in the AASSC. There had been no decision to apply lower standards at the barracks. The standards set out in the AASSC do not necessarily represent what the Defendant regards as the minimum required by law to achieve the standard of adequacy. In any event, the argument did not add anything to the earlier conclusions. See  and further .
In relation to ground 2, the Judge held that the system that the Defendant had in place for screening for vulnerabilities to decide who should be transferred to the barracks, and for monitoring occupants post-transfer, was ineffective and unlawful. The system relied on by the Defendant, which consisted of:
- ‘consideration of the asylum registration questionnaire, together with the subsequent application for s.95 support, and the information recorded on the Home Office’s Case Information Database (“CID”) and CRH system’ (in relation to the transfer decision); and
the ability of occupants to raise concerns about their health and be assessed/see a GP while at the barracks, among other things (in relation to monitoring post-transfer) was not sufficient to gather the information required by the Tameside principle, considered in the context of the public sector equality duty and other relevant obligations. See -.
In relation to ground 3, the Claimants’ challenges under Articles 2, 3 and 8 ECHR were dismissed. In relation to Article 2, the risk to life from fire or COVID-19 was not sufficient to meet the requisite standard. See -. As to Article 3, at least four of the Claimants’ suffered actual bodily injury in the sense that they had symptomatic COVID-19 infections. In addition, their mental health deteriorated. However, this did not meet the minimum level of severity needed to constitute a breach. See -. In relation to Article 8, there were concerns about the lack of privacy. But these were not sufficient to mean that the Claimants could succeed under Article 8 in circumstances where the Article 3 threshold was not also met. See -.
The Judge allowed ground 4 of the claim in part (false imprisonment/Article 5). On the evidence, he concluded, there was no curfew in place: rather there was an expectation that asylum-seekers would be back in the barracks by 2200. But the Claimants were not told that they would be treated as having absconded if they did not return, nor suffer any other sanction. However, the 15 January 2021 letter, ‘instructed the residents to remain in a particular place, stated that the instruction was underpinned by law and threatened that the instruction would be enforced by legal process’ and thereby constituted false imprisonment and a breach of Article 5. See -.
The Judgment is available here: R (NB and others) v Secretary of State for the Home Department  EWHC 1489 (Admin).