A, R (on the application of) v National Asylum Support Service & Anor

Accommodation for an asylum-seeker’s household is “adequate” only if assessed by reference to the individual needs of every household member, including a child’s disability. Adequacy is contextual and may change with the expected duration of occupation, deteriorating health and other circumstances.

Acceptance of accommodation ordinarily prevents a challenge based on circumstances existing when it was accepted, but a continuing duty may revive following material change. Location preferences and scarcity of local housing remain relevant when deciding whether continued occupation is adequate and what further steps are reasonable. Where the statutory asylum-support duties apply, a local authority cannot provide equivalent assistance under child welfare legislation.

A family seeking asylum occupied temporary accommodation in London. Two children had degenerative disabilities, and a later occupational therapy assessment identified serious shortcomings in the property. The family nevertheless wished to remain locally because of their school and support arrangements. The National Asylum Support Service searched through the local authority for more suitable local accommodation but had suitable accommodation available only in dispersal areas.

Keith J held that adequacy under the Immigration and Asylum Act 1999 was assessed by reference to able-bodied children and that article 8 was not engaged. The claimant appealed. The central questions were how “adequate accommodation” should be assessed, whether the statutory duties had been breached, and whether the local authority had a residual duty to assist.

1. Appeal dismissed unanimously. Waller LJ delivered the leading judgment. Clarke LJ agreed with Waller and Brooke LJJ, and Brooke LJ gave concurring reasons.
2. Accommodation must be adequate for the actual needs of the supported person and every dependant. Disability, age and other individual circumstances are relevant. Keith J’s contrary approach was wrong. Disabled children could not be assessed by the standard applicable to able-bodied children. The scheme did not divide ordinary accommodation costs from disability-related costs between the National Asylum Support Service and the local authority.
3. Adequacy is contextual and temporal. The statutory purpose is to prevent destitution while an asylum claim is determined. Accommodation adequate for a short period may become inadequate as occupation continues or needs change. The duty is continuing. Prior acceptance prevents a challenge based solely on circumstances existing when accommodation was accepted, but later material changes may revive the duty.
4. The duty under section 122(3) of the Immigration and Asylum Act 1999 is absolute, but it permits adequate short-term accommodation while accommodation suitable for a longer period is sought. Assessment requires a balance focused on current needs. Relevant matters include deterioration, duration, the adequacy of the search, the family’s requested geographical constraints, available alternatives and the fairness of continued occupation.
5. The family had accepted the property to avoid dispersal, knowing that better local accommodation could not be guaranteed. Their children’s condition and the duration of occupation increased the urgency of rehousing. Nevertheless, mitigations remained available, the search through the local authority was reasonable, and suitable accommodation existed outside the preferred area. The National Asylum Support Service was not yet in breach, although urgent efforts had to continue.
6. “Arrangements” in section 118(1)(b) meant arrangements under section 99. The words “so far as practicable” in section 118(1) were an exhortation against using local-authority housing stock, rather than an absolute prohibition. Exceptional inadequacy could make refusal to use that stock unreasonable.
7. Section 122(5) excluded assistance under child welfare provisions where the National Asylum Support Service should be complying with sections 95 and 122. No remedy therefore lay against the local authority.
8. Article 8 was engaged because the accommodation affected the family’s physical and psychological integrity. The interference was justified under article 8(2), having regard to competing housing needs and the economic resources required.

1. Court of Appeal (Civil Division): The appeal was dismissed unanimously. The court rejected the Administrative Court’s approach to disability and article 8 but upheld the result because no present breach of statutory duty was established.
2. Administrative Court: Keith J held that adequacy under the Immigration and Asylum Act 1999 was tested by reference to able-bodied children, that the offered accommodation was adequate, and that article 8 was not engaged.