15 December 2020: Freemovement
Everyone who works with asylum seekers knows that the Home Office system for providing accommodation is not fit for purpose. In R (DMA and Others) v Secretary of State for the Home Department  EWHC 3416 (Admin) the High Court has finally and emphatically recognised this. The judgment will surely have significant ramifications for how the Home Secretary discharges her duty to accommodate destitute asylum seekers.
The case involved several failed asylum seekers who had submitted further representations about their case, with a view to getting it considered as a fresh claim. The Home Secretary accepted that she had a duty to accommodate the claimants in the meantime to avoid a breach of Article 3 of the European Convention on Human Rights. The key issue was whether the Home Office system for discharging that legal duty was so defective as to be unlawful.
The asylum accommodation system
The Home Office does not have its own stock of homes for asylum seekers. It relies on private providers. Rather than arranging private accommodation for each individual, the Home Office signed contracts with Serco, Mears and Clearsprings to provide accommodation to everyone eligible for a fixed fee per night.
While there is nothing wrong in principle with this arrangement, it creates a perverse incentive for the accommodation provider to overlook people who have higher than average needs because there is no extra money paid for providing different or better accommodation to a particular individual. Claimant AA, for example, had “chronic kidney disease at stage 5 (end stage), hypertension, cardiomyopathy, hypotensive nephropathy, atrial fibrillation and chronic hepatitis C”. He needed somewhere on the ground floor or with a lift, but didn’t get it: AA ended up “on friends’ sofas or floors and was also street homeless, sleeping on streets near the renal clinic he had to attend for kidney dialysis”.
Ten non-exhaustive commandments
Mr Justice Knowles held that the crucial matter for ensuring compliance with the duty to operate a lawful system is to monitor the contract properly. He set out ten commandments on what proper monitoring looks like:
… it is not for the Court to provide a complete list or regime, but I am prepared to say that monitoring properly in relation to section 4(2) [of the Immigration and Asylum Act 1999] includes these features, to which no doubt others can valuably be added:
1. it has regard to the context, which is the performance by a Secretary of State of her accepted legal duty to claimants who are destitute, who face an imminent prospect of serious suffering caused or materially aggravated by denial of shelter, food or the most basic necessities of life, and who are “highly vulnerable”;
2. it identifies the characteristics of the individuals involved;
3. it follows the progress of each case;
4. it alerts cases that are at risk of exceeding a reasonable time in sufficient time for this to be addressed;
5. it includes a regular review of where and why cases were at a risk of exceeding a reasonable time and what were the characteristics of the individuals placed at this risk;
6. it records when a reasonable time was exceeded, and informs a case study of where and why that occurred, how long provision eventually took and what the consequences were for the individual involved;
7. it identifies where and why and with what outcome an individual applied to the Court for an order;
8. it allows trends to be identified and addressed, including by reference to the characteristics of the individuals involved;
9. it follows the circumstances of alleged “failures to travel”, including notification given of travel arrangement, reason given for not travelling, response to reason given, action taken, and the situation of the individual as a result;
10. it reports on action of changes made to the system in light of the above and the effectiveness of those changes.
The problem for the Home Office is that it was not really monitoring the contracts for compliance with its legal duty at all. Instead, the contracts were monitored using a series of Key Performance Indicators to assess whether, on average, the accommodation providers were meeting their targets. Such an approach is obviously useful in general to ensure that public authorities get value for money for large contracts, but in this case it failed to ensure that the Home Office was not consistently failing to provide accommodation quickly to destitute asylum seekers.
Breach of equality duties to disabled people
The monitoring failure was particularly acute in relation to disabled people. The court found that the Home Office was not even collecting proper data about the provision of accommodation to disabled people, let alone giving it careful consideration:
As things stand, I have no alternative but to find that the Secretary of State is in breach of the public sector equality duty in failing, once she has reached a decision that she has a duty to accommodate under section 4(2) of the 1999 Act, to monitor the provision of that section 4(2) accommodation to individuals who have a disability. In this respect the Secretary of State has not, in the exercise of her functions, had due regard to the need to eliminate discrimination and to the need to advance equality of opportunity between persons who share the protected characteristic of disability and persons who do not share it.
The delay in providing accommodation in the cases before the court ranged from 45 days from nine months. Knowles J had no hesitation in finding that this was unreasonable.
Importantly, he also rejected a Home Office argument that the delays were acceptable because the claimants were able to obtain some help from friends and charities:
If the Secretary of State through her officials anticipates that charities and community groups will provide accommodation whilst charities and community groups look to the Secretary of State through her officials to do so, matters can quickly deteriorate to “who blinks first”. The victim of that situation is an individual who already faces an imminent prospect of serious suffering caused or materially aggravated by denial of shelter, food or the most basic necessities of life and who is prevented from addressing these needs in any other way.
These comments will be helpful to those applying for asylum support who can get a little bit of help from someone, but are still in dire need of proper support from the Home Office.
The cherry on top of this very helpful judgment is that Knowles J also awarded £1,000 damages to each claimant for the breach of Article 3 ECHR, which is a welcome change from the general approach of ruling that a declaration is a sufficient remedy.
The role of judicial review
There is a lot in this judgment about how courts should approach judicial review claims involving government processes and systems. The Secretary of State put her case very high, basically arguing that it was constitutionally inappropriate for the courts to review complicated contractual arrangements.
Knowles J saw through that attempt to avoid scrutiny and delivered some helpful comments about the role of judicial review in tackling maladministration:
What of Mr Tam QC’s point that it is enough that at each point a claimant is entitled to come to the Court and say that one of the steps had gone wrong, with the Court deciding the matter by order if the matter was not resolved? Obviously, this is what happens regularly, but the Court should be vigilant to identify where case by case decisions are necessary not because of a case specific dispute but because the system is operating unlawfully. If the system is operating unlawfully and the Court does not address that then its case-by-case involvement simply becomes part of the system. A system that reaches the point of depending on applications for judicial review to make it work may require particular scrutiny.
The idea that the court must not simply allow itself to become part of an unlawful system is powerful, particularly in the immigration context where the Home Office often appears to be happy to fight individual judicial review claims rather than fix the systemic problems that generate those claims.
The judgment finishes with a peroration: “I respectfully urge that everything that has happened in the cases before this Court helps show that what is needed now, on all sides, is cooperative, constructive, collaborative engagement, including over data and monitoring, towards a system that wins confidence and respect.” Hopefully, the Home Office will heed this advice and radically reform the arrangements for providing asylum seekers with accommodation.