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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> KMI, R (On the Application Of) v The Secretary of State for the Home Department [2021] EWHC 477 (Admin) (03 March 2021) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2021/477.html Cite as: [2021] WLR(D) 135, [2021] 1 WLR 3081, [2021] EWHC 477 (Admin) |
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QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Strand, London, WC2A 2LL |
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B e f o r e :
and
MR JUSTICE GARNHAM
____________________
THE QUEEN (on the application of ![]() ![]() |
Claimant |
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- and - |
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THE SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Defendant |
____________________
Alan Payne Q.C., Ben Keith and Saara Idelbi (instructed by Government Legal Department) for the Defendant
Hearing date: 11 February
____________________
Crown Copyright ©
Lord Justice Lewis and Mr Justice Garnham handed down the following judgment of the Court:
Introduction
(i) to offer accommodation under s.4 of the 1999 Act to any person who applies for such accommodation whom she considers to be a destitute failed asylum seeker; or alternatively
(ii) to offer accommodation under s.4 to persons with a pending appeal to the AST from a decision of hers to refuse such accommodation, in which she does not dispute that the person is a destitute failed asylum seeker.
"It is DIRECTED that:
…The High Court will, until further order, be prepared to consider urgent applications, before the issuing of a claim for judicial review, for interim relief in the following category of individual cases: Any appellant to the First-Tier Tribunal (Social Entitlement Chamber) ("FTT") who has given notice of appeal, in accordance with rule 23 of the Tribunal Procedure (First-Tier Tribunal) (Social Entitlement Chamber) Rules 2008, against a decision of the Defendant refusing support under section 4 of the Immigration and Asylum Act 1999 ("section 4 support") whom the Defendant accepts is destitute.
The Legal Framework
The Statutory Scheme
"(2) The Secretary of State may provide, or arrange for the provision of, facilities for the accommodation of a person if—
(a) he was (but is no longer) an asylum-seeker, and
(b) his claim for asylum was rejected…
(5) The Secretary of State may make regulations specifying criteria to be used in determining–
(a) whether or not to provide accommodation, or arrange for the provision of accommodation, for a person under this section;
(b) whether or not to continue to provide accommodation, or arrange for the provision of accommodation, for a person under this section…
(10) The Secretary of State may make regulations permitting a person who is provided with accommodation under this section to be supplied also with services or facilities of a specified kind.
(11) Regulations under subsection (10)–
(a) may, in particular, permit a person to be supplied with a voucher which may be exchanged for goods or services,
(b) may not permit a person to be supplied with money,
(c) may restrict the extent or value of services or facilities to be provided, and
(d) may confer a discretion."
" (3) For the purposes of this section, a person is destitute if—
(a) he does not have adequate accommodation or any means of obtaining it (whether or not his other essential living needs are met); or
(b) he has adequate accommodation or the means of obtaining it, but cannot meet his other essential living needs."
"Eligibility for and provision of accommodation to a failed asylum-seeker
(1) Subject to regulations 4 and 6, the criteria to be used in determining the matters referred to in paragraphs (a) and (b) of section 4(5) of the 1999 Act in respect of a person
falling within section 4(2) or (3) of that Act are—
(a) that he appears to the Secretary of State to be destitute, and
(b) that one or more of the conditions set out in paragraph (2) are satisfied in relation to him.
(2) Those conditions are that—
(a) he is taking all reasonable steps to leave the United Kingdom or place himself in a position in which he is able to leave the United Kingdom, which may include complying with attempts to obtain a travel document to facilitate his departure;
(b) he is unable to leave the United Kingdom by reason of a physical impediment to travel or for some other medical reason;
(c) he is unable to leave the United Kingdom because in the opinion of the Secretary of State there is currently no viable route of return available;
(d) he has made an application for judicial review of a decision in relation to his asylum claim–
(i) in England and Wales, and has been granted permission to proceed pursuant to
Part 54 of the Civil Procedure Rules 1998, . . .
(e) the provision of accommodation is necessary for the purpose of avoiding a breach of a person's Convention rights, within the meaning of the Human Rights Act 1998."
"a person is destitute if—
(a) he does not have adequate accommodation or any means of obtaining it (whether or not his other essential living needs are met); or
(b) he has adequate accommodation or the means of obtaining it, but cannot meet his other essential living needs."
"(3)The Tribunal may strike out the whole or a part of the proceedings if— …
(c) the Tribunal considers there is no reasonable prospect of the appellant's case, or part of it, succeeding.
(4) The Tribunal may not strike out the whole or a part of the proceedings under paragraph (2) or (3)(b) or (c) without first giving the appellant an opportunity to make representations in relation to the proposed striking out.
(5) If the proceedings, or part of them, have been struck out under paragraph (1) or (3)(a), the appellant may apply for the proceedings, or part of them, to be reinstated.
…
(7) This rule applies to a respondent as it applies to an appellant except that— (a) a reference to the striking out of the proceedings is to be read as a reference to the barring of the respondent from taking further part in the proceedings; and (b) a reference to an application for the reinstatement of proceedings which have been struck out is to be read as a reference to an application for the lifting of the bar on the respondent from taking further part in the proceedings.
(8) If a respondent has been barred from taking further part in proceedings under this rule and that bar has not been lifted, the Tribunal need not consider any response or other submission made by that respondent and may summarily determine any or all issues against that respondent."
The decisions in PA and MA and subsequent cases
"PA is not entitled to the provisions (sic) of support under regulation 3(2)(a) –(e). It cannot, in my judgement, be right that a person who has remained unlawfully in the UK for 13 years, who has wilfully refused to mitigate the consequences of being left without accommodation by not taking all reasonable steps to leave the UK, can nevertheless require the Secretary of State to support him under the ECHR simply by refusing to leave."
"57. In PA's and MA's appeals, the PAP letters seek to challenge the lawfulness of the Secretary of State's decision to withdraw accommodation from persons who continued to receive it in March 2020 because of coronavirus and whose support has now been terminated. It seems to me that the proposed judicial review raises an important issue which can only be challenged before the Administrative Court, and the appellants' representatives ought to be allowed the opportunity to make an application for permission to the Administrative Court and present their argument. Applying the rationale of R(NS) to the appeals before me, and solely on account of the proposed judicial review concerning the legality and rationality of the Secretary of State's decision to withdraw support from PA and MA in September 2020, I conclude that the provision of accommodation is necessary under regulation 3(2)(e) for the purpose of avoiding a breach of their Convention rights within the meaning of the Human Rights Act 1998."
The Claimant's History
"You have applied for support on the basis that you have outstanding further submissions with the Home Office. However, the Home Office have no record of you currently having any outstanding further submissions or having any open appointments.
You state in your application that you are unable to travel due to the Covid-19 ban on travel. However, considering the easing of these restrictions, it is no longer accepted that you are unable to leave the United Kingdom or that you are unable to take the necessary steps to resolve any practical problems that may be preventing you from leaving. The Home Office Voluntary Returns Service is available to help you to leave.
Furthermore, I do not consider that you meet any of the other conditions set out in paragraph 3(2) of the 2005 Regulations".
"I find that PA and MA, and paragraphs 48 and 49 in particular, have bearing on this appeal. This is because
(a) While the decision in PA and MA is challenged in judicial review proceedings, it has not yet been quashed by consent or otherwise.
(b) The judicial review challenge, as outlined in the Respondent's Note, is to the lawfulness of decisions to withdraw a blanket policy of s.4 support for destitute failed asylum seekers, and also to the Principal Judge's decision that she has no jurisdiction over the lawfulness of policy decisions. These are not issues of direct relevance to the decision appealed byKMI. The findings in PA and MA about the application of article 8 ECHR to individual decisions on support are not at issue in the judicial review proceedings.
(c) While the SSHD asserts that assessing the impact of a decision on persons in the locality is beyond the remit of the AST … I do not find this is made out by the analysis of the cases of Osman and NS or otherwise. A natural reading of regulation 3(2)(e) requires consideration of whether support is necessary to avoid a breach of Convention rights generally, not restricted to the rights of the applicant for support. In any event, the SSHD in submissions expressly agrees with the Principal Judge's findings that the Tribunal has jurisdiction to consider the consequences of an appealable decision on both the human rights of the Appellant and those of others (para 35 of PA and MA, …). I find no reason to limit consideration of the human rights impact to some groups to the exclusion of others, such as those in the Appellant's locality or community.
(d) The findings of the Principal Judge with respect to the risks presented during the pandemic by destitute failed asylum seekers to members of the broader community were made after she had reviewed evidence presented (see for example paragraph 37). This evidence is consistent with repeated announcements of ministers when justifying the imposition of restrictions to prevent spread of the COVID virus across the community, to the effect that individuals must stay at home to protect the NHS and save lives. This clearly raises questions of the risks arising from those who are destitute and have no home to isolate in.
(e) The Respondent relies heavily on the argument that there is nothing to stop the Appellant taking steps to leave the UK. However, the Principal Judge in PA and MA clearly had the possibility of voluntary return in mind when reaching her decision. While the Appellant has responsibility for his own actions when assessing the risk he faces of infection, the risks to the community arise from his destitute state and presence in the UK during the pandemic. It might be considered that the risk to the community arises precisely because of his failure to take steps to leave (and so take advantage of support under regulation 3(2)(a)). The duty to provide support on this basis is not mitigated by the Appellant's failure (or otherwise) to take up an option of leaving the UK.
(f) I find no reason why the article 8 reasoning in PA and MA should not apply to a decision refusing support as well as to a discontinuance of support. The reasoning does not rely on a policy with respect to discontinuation, or otherwise. What matters is the potential adverse impact of the decision on the health of members of the community, and the potential for this to breach their ECHR rights. The Respondent has not argued the point in submissions."
"I find the Respondent has no reasonable prospects of success. This is because of the uncontested facts and the authority in PA and MA. The Appellant is destitute during a period of high risk of COVID transmission that warrants unprecedented restrictions on the lives of individuals in the UK. His destitution in these circumstances represents an interference with the Convention rights (article 8) of others in the community. I follow PA and MA as authority that the provision of asylum support under s.4(2) of the 1999 Act is warranted by virtue of regulation 3(2)(e) of the 2005 Regulations."
Government Policy
"I have taken the decision that, for the next three months, we will not be requiring people to leave their accommodation because their asylum claim or appeal has been finally decided…"
The Grounds
(i) the Secretary of State acted irrationally in failing, before adopting the s.4 refusal policy, to give adequate consideration to the risks to public health of ceasing to provide s.4 accommodation to failed asylum-seekers during the Covid-19 pandemic.
(ii) the Secretary of State's s.4 refusal policy is irrational and/or disproportionate discrimination contrary to Articles 3 and 8 of the Convention read with Article 14 in light of her s.4 discontinuation policy not to cease the provision of s. 4 accommodation.
(iii) the Secretary of State acted irrationally in failing, before adopting the September 2020 policy, to give adequate consideration to measures to mitigate the risks to public health of ceasing to provide s.4 accommodation to failed asylum-seekers during the Covid-19 pandemic.
(iv) the Secretary of State acted in breach of the human rights of the general population under Articles 2, 3 and 8 of the Convention by adopting and implementing the s.4 refusal policy without properly determining the risk to public health of doing so.
(v) the Secretary of State acted in breach of the public sector equality duty on grounds of race when adopting and implementing the s.4 refusal policy.
(vi) the Secretary of State acted in breach of the public sector equality duty on grounds of disability when adopting and implementing the s.4 refusal policy.
(vii) the Secretary of State acted in breach of the Claimant's rights under Article 8 of the Convention in that the decision to discontinue the provision of s.4 accommodation to him was neither 'in accordance with the law' nor proportionate.
Preliminary Observations
The Test to be applied
"When considering whether to grant interim relief while a judicial review claim is pending, the Court should consider: (1) Whether there is a real issue to be tried – i.e. whether there is a real prospect that the claim will succeed at the substantive hearing and (2) Whether the balance of convenience lies in favour of granting the interim order. The balance of convenience includes consideration of any matters relevant to whether or not the interim relief sought should be granted, including any relevant public interests which either favour or oppose grant of the interim relief sought. There is often a strong public interest in permitting a public authority's decision to remain in force pending a final hearing of the application for judicial review, so the party applying for interim relief must make out a strong case for the grant of interim relief."
Discussion
Real issue to be tried
"it is irrational, or disproportionate discrimination, for SSHD to refuse to provide s. 4 accommodation to persons who, if they were already accommodated, would (under SSHD's policy) continue to be so during the pandemic. The consequence for public health and the individual of refusing to accommodate a destitute former asylum-seeker is not rationally distinguishable from a decision to cease to accommodate a former asylum-seeker who would therefore become destitute."
Balance of Convenience
Conclusion