O, R (On the Application Of) v The Secretary of State for the Home Department

When providing asylum support accommodation, the Secretary of State must consider the individual circumstances and accommodation needs of the applicant and dependants, including disability, safety, education and the likely duration of occupation. Under Borders, Citizenship and Immigration Act 2009, section 55, the best interests of affected children must first be identified and treated as a primary consideration, though not as determinative.

Compliance with an accommodation policy does not prevent unlawfulness where rigid affordability criteria create a continuing barrier to suitable accommodation. The decision-maker must consider whether those criteria should be relaxed in the particular circumstances. A bare assertion that children’s welfare has been considered is insufficient without an underlying assessment and record of reasoning.

The claimant, an asylum-seeker and sole carer of two children, sought judicial review of accommodation provided under section 95 of the Immigration and Asylum Act 1999. Her elder child had autism, complex needs and a need for constant supervision. The family had lived for about 14 months in unsuitable studio accommodation in Lambeth.

The Secretary of State accepted that the accommodation was unsuitable and had requested a two-bedroom property in Lambeth, but none had been found within the applicable affordability criteria. The issues were whether relevant considerations had been omitted, the policy had been breached, the continued failure to secure suitable accommodation was unreasonable or irrational, and the statutory duty concerning children’s welfare had been discharged.

1. The claim succeeded on a limited basis. The Secretary of State had acted unlawfully by failing, until 11 July 2019, to consider relevant matters when deciding the nature and location of accommodation. Those matters included the elder child’s autism, lack of safety awareness, pica behaviour, need for a retreat space, poor sleep, the effects on both children, and disruption to specialist education and support. The same failure breached the Secretary of State’s accommodation policy.
2. The accommodation policy’s affordability criteria could lawfully be relevant, but rigid adherence to them might become unlawful in particular circumstances. Following Chkharchkhalia [2019] EWHC 2232 (Admin), the Secretary of State had to consider whether, and to what extent, the criteria should be relaxed once they became the barrier to suitable accommodation. By the date of trial, the failure even to address that issue was Wednesbury unreasonable and unlawful.
3. The court declined to declare that the Secretary of State was required immediately to provide a two-bedroom property in Lambeth. The extent of any relaxation and the weight to be given to public expenditure were matters initially for the Secretary of State. The failure to seek assistance from Lambeth under sections 99 and 100 of the 1999 Act was not unlawful on the evidence.
4. Section 55 of the Borders, Citizenship and Immigration Act 2009 required the best interests of both children to be identified and considered first as a primary consideration. It did not dictate the outcome or make those interests overriding. Applying ZH (Tanzania) [2011] UKSC 4, the Secretary of State had to assess the children’s best interests and then weigh countervailing considerations, including affordability. The bare statement in a letter that the duty had been considered was inadequate. The duty remained breached.
5. Declarations were to be made that the Secretary of State’s conduct had been unlawful and that the section 55 duty remained breached, insofar as the unlawfulness had continuing consequences. The court made an anonymity order for the claimant and her children.

First-instance judicial review. The claim had earlier been granted permission at an interlocutory hearing before a Deputy High Court Judge, but the present judgment determined the substantive claim.