High Court refuses to grant interim relief in the form of suitable accommodation to a failed asylum seeker during pandemic

Ncube, R (On the Application Of) v Brighton And Hove City Council [2020] EWHC 3646 (Admin)

In a new judgment, the High Court has refused to grant interim relief in the form of suitable accommodation to a failed asylum seeker during the Covid-19 pandemic, taking account of the government's guidance on the 'Everyone In' initiative, the availability of an alternative remedy, and the claimant's failure to comply with the duty of candour.

In Ncube, R (On the Application Of) v Brighton And Hove City Council [2020] EWHC 3646 (Admin) (09 October 2020) the claimant (Mr Ncube) was a street homeless former asylum seeker with various health problems who had applied for asylum in 2006. His informal sleeping arrangements with a variety of friends and family members broke down, and on 2 September 2020 he approached the defendant (Brighton And Hove City Council) seeking accommodation during the Covid-19 pandemic.

The defendant carried out a phone interview and wrote to the claimant the same day informing him that he was not eligible for assistance under the Housing Act 1996. On or before 5 October 2020, the claimant contacted Migrant Help, the advice, support and eligibility provider appointed by the Home Office, but was told that he was not eligible for support under section 4(2) of the Immigration and Asylum Act 1999.

The claimant sought a judicial review, alleging the defendant had failed in its duties to -

• accommodate him in accordance with its Covid-19 accommodation policies;
• provide advice or assistance, contrary to section 179 of the Housing Act 1996; and
• provide urgent care and support pursuant to either section19(3) of the Care Act 2014 or section 1 of the Localism Act 2011.

Pending a full hearing of the judicial review, the claimant made an out-of-hours application for interim relief in the form of suitable accommodation. His case focused on the ‘Everyone In’ policy of housing everyone who needed accommodation - as set out initially in a letter sent to local authorities dated 26 March 2020 from the Minister for Rough Sleeping and Housing.

NB - subsequent letters from the Minister, dated 28 May 2020 and 22 September 2020, provided clarification and indicated that failed asylum seekers were excluded from the obligation to house during the pandemic, although local authorities were advised to ‘use their judgment in assessing what support they may lawfully give to each person on an individual basis’.

The out-of-hours hearing resulted in an order that the defendant accommodate the claimant pending a hearing of the interim relief application in full. The application came before the High Court three days later.

* * * * *

High Court Deputy Judge Obi firstly considers whether the ‘Everyone In’ policy supported the claimant's case, highlighting that the defendant’s policy response to the Minister’s letter of 26 March 2020 was to make an accommodation offer available to ‘all rough sleepers in the City and those at risk of sleeping rough’, and that this policy response was in fact extended until the end of December 2020.

While the claimant submitted that there was a strong arguable case that he was covered by this policy response, so that he had a legitimate expectation of being provided with suitable accommodation until 30 December 2020, the defendant challenged this by submitting that -

‘… the ‘Everybody-In’ policy is irrelevant because Government Ministers have made it clear that the money provided under this initiative is not to be used to circumvent immigration control… there is a statutory scheme for failed asylum seekers under section 4 of the Immigration and Asylum Act 1999, and, if the claimant applied under the scheme and was refused, the application for judicial review should be against the Secretary of State.’

Agreeing with the defendant’s submission, Judge Obi turns down the application for interim relief, holding that -

‘As the claimant is unlawfully in the UK, his circumstances are caught by the general prohibition of support under Schedule 3 to the Nationality, Immigration and Asylum Act 2002. This general exclusion is additional to the specific exclusions, including section 1 of the Localism Act of 2011 which governs the local authority's general power of competence.

I am mindful that this is an application for interim relief and, accordingly, nothing in this judgment should be taken as a concluded view on the general arguability of the claim. However, I am satisfied, based on the information before me … which includes the May 2020 and September 2020 letters - that the claim does not pass the threshold for the grant of interim relief on the basis of legitimate expectation. It also does not pass the threshold on the basis of a statutory provision.’ (paragraph 23)

NB - Judge Obi also holds that the defendant did not fail in its duties under the Housing Act 1996 and the Care Act 2014.

In addition, Judge Obi considers two further submissions from the defendant in case she was found wrong on the above conclusions - that there was an alternative remedy available (an application under section 4 of the Immigration and Asylum Act 1999), and that the claimant had failed in the duty of candour.

However, having noted that the claimant only made an application under section 4 of the 1999 Act after he first applied for interim relief, and had not mentioned this in his witness statements, Judge Obi holds that -

‘The claimant was subject to the duty of candour, which requires the parties to ensure that all relevant information and facts are put before the court. The duty extends to making proper enquiries before making an application. It is a heavy burden and I have reached the conclusion that it has not been discharged in this case. There is no good reason, as far as I can see, why the status of the section 4 application (i.e. the fact that there has, in fact, been no application until yesterday) had not been communicated to the court previously. An application has either been made or it has not. The duty of candour required that to be made clear and it was not made clear. For that reason, alone, I would refuse the application for interim relief.’ (paragraph 26)