25 June, 2021 Open access
25 June, 2021 Open access
 EWHC 1690 (Admin)
In a new judgment, the High Court has ruled that the Home Secretary's failure to accommodate destitute refused asylum seekers during the Covid-19 outbreak does not breach their, or the general public's, rights under the European Convention on Human Rights (ECHR).
In Secretary of State for the Home Department, R (On the Application Of) v First-tier Tribunal (Social Entitlement Chamber)  EWHC 1690 (Admin) (21 June 2021), the Secretary of State invoked the judicial review jurisdiction of the High Court to challenge an Asylum Support First-tier Tribunal (AST) decision made on 26 April 2021.
The decision concerned a ‘failed asylum seeker' (AM), a 29-year-old national of Afghanistan, after his asylum claim was rejected and his appeal rights were exhausted. When he made his application for accommodation - under section 4 of the Immigration and Asylum Act 1999 and the criteria set out in regulation 3 of the Immigration and Asylum (Provision of Accommodation to Failed Asylum-Seekers) Regulations 2005 - AM said that he was street homeless and destitute. While there was nothing stopping him from leaving the UK, with help if necessary, he had taken no steps to do so. Nor, however, had the Secretary of State taken any steps to remove him.
Before the AST, AM relied in part on expert evidence about the risks posed by Covid-19 to those who are street homeless or forced to live in overcrowded conditions, while also arguing that members of the public were put at increased risk of contracting Covid-19 from homeless destitute failed asylum-seekers.
The Principal Judge decided that, in the light of these risks, the Secretary of State was legally obliged to provide accommodation for AM until step 4 on the government's Roadmap out of lockdown was reached (when the remaining legal restrictions imposed to tackle the pandemic would be lifted), and that that action was required in order to avoid breaches of the ECHR rights of the applicant and the general public. The Judge principally relied upon article 8 (protection of private and family life) to justify her conclusion, but also referred to articles 2 (right to life) and 3 (freedom from torture and inhuman or degrading treatment), and discrimination under article 14.
NB - the case of AM was designated as a ‘lead case’ under the AST's rules, as it was also binding on 41 other cases which were stayed behind it. All of these cases were subsequently determined against the Secretary of State, and the decision has been followed by AST judges in other cases too.
The Secretary of State challenged the AST’s decision, submitting that -
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Having rejected AM's multiple arguments that the Secretary of State should be refused permission to appeal, Mr Justice Chamberlain grants permission and then sets out the reasons why he considers the AST Principal Judge did more than just consider AM’s article 8 rights -
However, following a review of relevant case law on the imposition of positive obligations under Articles 2, 3 and 8, Justice Chamberlain reaches the conclusion that the Principal Judge was wrong to decide that in order to protect the rights of AM under those Articles there was a requirement for him to be accommodated, whether until step 4 of the Roadmap was reached or at all -
'(a) It is for the UK Government to decide how best to protect destitute asylum-seekers from the various threats to their life and health to which homelessness gives rise (including Covid-19). A broad margin of appreciation is to be accorded to it in taking that decision…
(b) The existence of a margin of appreciation at the international level does not necessarily mean that the national courts must accord the Secretary of State an equivalent margin to reach decisions about policy: R (Steinfeld) v Secretary of State for International Development  UKSC 32,  et seq.
(c) In this case, however, formulating policy in relation to the accommodation failed asylum-seekers requires the weighing of competing policy considerations and the making of predictive judgments about the consequences of particular measures. There are strong constitutional reasons for according the executive a broad discretionary area of judgment when performing these functions.
(d) The Accommodation Regulations reflect a legislative choice to discharge any positive protective duty by accommodating destitute failed asylum-seekers on condition that they take reasonable steps to leave the UK. In general, that is a legitimate policy, at least where the failed asylum-seeker is in a position freely to return home: Kimani, . It falls well within the discretionary area of judgment to be accorded to the Secretary of State.
(e) In the absence of any explanation as to why AM is not in a position to return home, the Secretary of State was entitled to regard the offer of accommodation conditional on taking steps to leave the UK as a reasonable discharge of any positive obligation under Articles 2, 3 or 8 to protect AM from risks to his life and health.' (paragraph 139)
Having also considered, and then rejected, the Principal Judge’s conclusions on two further issues relating to the duty to accommodate AM - finding that (i) there was no breach of the Convention rights of the public to protect them from risks to their lives and health from infection by homeless failed asylum-seekers; and (ii) there was not a distinct basis to engage Article 14 discrimination grounds to impose a duty to accommodate - Judge Chamberlain allows the Secretary of State’s claim, holding that -
‘Even taking the rights of destitute asylum-seekers together with those of the general public, the Principal Judge was in my judgment wrong to conclude, for the reasons she gave, that the Secretary of State was obliged to accommodate AM.
The Secretary of State's claim for judicial review therefore succeeds.' (paragraphs 156 and 157)
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While the Secretary of State ultimately succeeded in her claim, Justice Chamberlain is highly critical of the approach she has taken in a series of similar AST cases, where tribunals applied the reasoning of PA and MA so that the Home Secretary was required to accommodate the appellants. These decisions were not challenged by way of judicial review. Instead, the Secretary of State continued to make negative decisions and then routinely withdrew from the appeals process. Justice Chamberlain observes that -
'In my judgment, this practice not only failed to respect the process of a lawfully constituted tribunal, but was also systematically unfair to applicants for support. It is an axiom of public law that like cases are to be treated alike. To refuse applications which would be very likely to succeed on appeal, and then to disengage from the appeal process, meant that the applicants would inevitably be treated for a period less favourably than others in the same position. Even if the Secretary of State considered the stance of the AST to be wrong in law, it was not appropriate to allow that situation to continue without bringing the matter promptly before the High Court.' (paragraph 69)
21 June, 2021