DMA, R, (on the application of) v The Secretary of State for the Home Department (Rev 1)

Once the Secretary of State has accepted a duty to accommodate a destitute failed asylum-seeker under section 4(2) of the Immigration and Asylum Act 1999, accommodation must be provided within a reasonable time. Reasonableness depends on the context that the individual faces an imminent risk of treatment contrary to article 3. It is not fixed by a universal number of days.

A lawful system must capture relevant data and monitor individual progress sufficiently to detect and correct delay. Contractual performance measures cannot substitute for the Secretary of State’s legal duty. The absence of monitoring for disabled recipients of accommodation may also breach the reasonable-adjustment duty and the public sector equality duty under the Equality Act 2010.

The claimants were failed asylum-seekers whose asylum claims had been rejected but who remained in the United Kingdom while further representations were pending. The Secretary of State accepted that each was destitute and that she owed a duty to provide accommodation under section 4(2) of the Immigration and Asylum Act 1999.

Accommodation was nevertheless delayed between 45 and 151 days for four claimants. AA, who had serious physical disabilities and required dialysis, experienced unsuitable accommodation and substantial delay in securing suitable accommodation and transport. The claims challenged the delays, the Secretary of State’s monitoring arrangements, and the operation of the scheme for severely disabled persons.

The central issues were whether accommodation had been provided within a reasonable time, whether the system was lawfully monitored, and whether its operation complied with the Equality Act 2010.

1. The claims succeeded. The Secretary of State had breached her section 4(2) duty by failing to provide accommodation to the claimants within a reasonable period. Declarations were granted. Each claimant who sought damages was awarded £1,000.

2. Once the Secretary of State accepts that accommodation is necessary to avoid a breach of article 3, she must provide it within a reasonable time. The applicable context is that the individual is destitute, highly vulnerable, unable to support themselves through work or public funds, and faces an imminent prospect of serious suffering through denial of basic necessities. The assessment is prospective. It cannot be justified by hindsight that charities, friends or churches prevented the article 3 threshold from being crossed. The principles in R (Limbuela) v Secretary of State for the Home Department [2006] 1 AC 396 and R (W) v Secretary of State for the Home Department [2020] EWHC 1299 (Admin) required action before, rather than only after, an article 3 breach.

3. A reasonable time is not a fixed period. However, the delays in these cases were unreasonable on any view. The Secretary of State had not established that alleged failures to travel were the claimants’ fault. The practical difficulty of obtaining appropriate accommodation did not remove the requirements of reasonable diligence, individual urgency, and the absolute protection of article 3.

4. The court could determine a systemic public-law failure without redesigning the accommodation system or reviewing the merits of contracting choices. Where a system causes breach of a legal duty, judicial review may identify that unlawfulness. Here, inaccurate and inaccessible data meant that the Secretary of State did not know the true extent of delay. Proper monitoring was essential. It had to track individual cases, identify risks of unreasonable delay in time to act, record causes and consequences of delay, identify trends, and address alleged failures to travel.

5. AA was disabled for the purposes of the Equality Act 2010. The prolonged failure to provide suitable accommodation, dietary facilities and effective transport was unfavourable treatment arising from his disability. The system placed severely disabled persons with particular accommodation needs at a particular disadvantage. The Secretary of State had failed to take reasonable steps to avoid that disadvantage by monitoring disability and operating effective prioritisation. The absence of disability monitoring also breached the public sector equality duty.

not stated in the judgment.