XN, R (on the application of) v Secretary of State for the Home Department

At the permission stage, a judicial review claim is arguable where asylum support arrangements may arguably require decision-makers to consider relocating an alleged perpetrator of harassment or abuse, after eliciting the victim’s wishes, rather than relocating the victim alone. The issue may arise even where the perpetrator and victim occupy separate rooms or households within shared accommodation. Relocation of the victim does not necessarily make the claim academic. Declaratory relief and damages for breach of Article 8 may remain available. Important questions of principle concerning the lawfulness of the policy and decision-making are appropriately retained in the Administrative Court.

The claimant, an asylum support accommodation resident, sought judicial review concerning harassment and abuse by another resident. Permission had been refused on the papers. On renewal, she argued that the defendant’s domestic abuse policy revealed a principle requiring consideration of relocating the perpetrator, and that similar consideration was arguably required where the parties occupied separate households within shared accommodation.

She also argued that the decision-makers had relocated her without properly considering relocation of the alleged perpetrator, without eliciting her wishes, and without acting with sufficient urgency. The defendant disputed the existence of any policy lacuna and contended that the relocation rendered the claim academic. The court also considered whether the claim should be transferred to the county court.

1. Permission granted. The renewed application disclosed clearly arguable grounds for judicial review. The court was not required at the permission stage to decide whether the alleged duty existed or had been breached.
2. The domestic abuse policy applicable to asylum support accommodation stated that, where a victim wished to remain, consideration must be given to relocating the perpetrator. That principle arguably involved identifying the victim and perpetrator, eliciting the victim’s wishes, and considering the perpetrator’s relocation. It was arguable that a decision not to relocate the perpetrator required a good or reasonable basis.
3. The same protective approach was arguably capable of applying where the abuse arose between residents of separate households within communal accommodation. The positive Article 8 obligation described in Hajduova v Slovakia 2660/03 (30 November 2010), at paragraph 46, was capable of supporting that argument.
4. The case-specific challenge was also arguable. The disclosed material did not show that, after eliciting the claimant’s wishes, a decision-maker had considered relocating the alleged perpetrator and identified a reasoned basis for rejecting that option. References to all options being considered, the practical difficulties of relocation, the Covid-19 pandemic and the availability of accommodation did not conclusively answer that issue.
5. The claimant’s relocation did not make the claim academic. If a substantive Article 8 obligation had arguably been breached, the court could grant a declaration of unlawfulness and consider just satisfaction under the Human Rights Act 1998. Treating such a claim as academic whenever the victim had been relocated would prevent judicial determination of the legality of relocating the victim instead of the perpetrator.
6. Transfer to the county court was refused. The claim raised important questions of principle concerning declaratory relief, as well as any damages, and was appropriately retained in the Administrative Court.

This was a renewed application for permission for judicial review. Permission had previously been refused on the papers on 18 June 2020. The Administrative Court granted permission on renewal.