R (DMA and others) v Secretary of State for the Home Department

The High Court reviewed challenges to the Home Secretary’s provision of accommodation under section 4(2) of the Immigration and Asylum Act 1999 and the related 2005 Regulations, in light of Article 3 ECHR and the Human Rights Act 1998. The court held that where the Secretary of State accepts a section 4(2) duty she must provide accommodation within a reasonable period so as to avoid an imminent breach of Article 3; there is a specific obligation to monitor the performance of that duty and to capture and evaluate data appropriate to that purpose.

The court found that delay in the claimants’ individual cases (periods ranging from 45 to 151 days, and up to nine months in AA’s case) was not explicable by fault on the claimants’ part and was not compatible with a requirement to provide accommodation within a reasonable time in circumstances where Article 3 was engaged. The court identified systemic monitoring failures: contractual KPIs and provider reporting did not ensure the Secretary of State knew the true position (including regional underperformance), and there was no routine monitoring of disabled section 4 recipients.

On equality law the court found that the Secretary of State breached the public sector equality duty and had failed to make reasonable adjustments in relation to disabled recipients (AA): the system put severely disabled applicants at a particular disadvantage and the absence of monitoring meant the Secretary of State failed to have due regard to equality obligations.

Background and parties: Five judicial-review claimants (DMA, AHK, BK, ELN and AA) had been accepted by Home Office officials as entitled to accommodation under section 4(2) of the Immigration and Asylum Act 1999 after rejection of their asylum claims. The Secretary of State discharged the duty via contracted accommodation providers under AASC contracts. The claimants remained destitute while awaiting accommodation. Relief sought included declarations of unlawful delay, systemic failings in monitoring and equality breaches; AA advanced a disability discrimination and reasonable adjustment claim.

Procedural posture: First instance judicial review in the Administrative Court before Robin Knowles J (hearing July–December 2020). The claims were heard together; some claimants later obtained leave to remain or asylum.

Issues before the court: (i) whether accommodation accepted under section 4(2) must be provided within a reasonable period and whether the Secretary of State breached that duty in these cases; (ii) whether alleged failures to travel by claimants explained delay; (iii) whether the Home Office had systems to monitor performance, capture data and evaluate outcomes so as to know and secure compliance with the statutory duty; (iv) whether the system discriminated against or failed to make reasonable adjustments for disabled claimants and whether the public sector equality duty had been observed; (v) remedies including declarations, mandatory orders and damages.

Reasoning and principal findings: The court applied Limbuela and related authority: the section 4(2) power becomes a duty where destitution and an imminent prospect of serious suffering from lack of shelter, food or basic necessities exist. The Home Office accepts the time requirement must be reasonable, but that reasonableness is assessed in the context of imminent Article 3 risk. The court rejected the Secretary of State’s contention that most delay was due to claimants’ failure to travel and found on the evidence that alleged failures to travel were, in the main, not the claimants' fault. The court examined the Home Office’s contractual regime (AASC), KPIs and reporting and found material deficiencies in data capture, reporting and assurance such that the Home Office did not know the true performance picture (e.g. regional underperformance in the Midlands and East of England). The system relied on contractual KPIs (98% target) and after-the-event service credits but those mechanisms do not satisfy the Secretary of State’s obligation to secure timely provision to individuals at imminent risk of Article 3 breach.

The court concluded there was a systemic failure to monitor properly the provision of section 4 accommodation and a failure to monitor disabled recipients specifically. For AA the court found unlawful unfavourable treatment and a breach of the public sector equality duty and that reasonable adjustments and anticipatory measures were lacking; for ELN the evidence was insufficient to establish disability under the Equality Act. Remedies awarded included declarations that the Secretary of State breached duties under section 4(2) and the HRA by failing to provide accommodation within a reasonable period to the claimants, that she had failed properly to monitor provision of section 4(2) accommodation, and that she breached the public sector equality duty by failing to monitor provision to disabled individuals; damages of £1,000 were awarded to each claimant who claims damages as just satisfaction. Mandatory orders were not required.

This was a first-instance judicial review in which the court declared that the Secretary of State had breached her duties. The court held that where the Secretary of State accepts a duty under section 4(2) of the Immigration and Asylum Act 1999 she must secure accommodation within a reasonable period having regard to the imminent risk of Article 3 ECHR harm; the Home Office’s monitoring, data capture and assurance arrangements were inadequate so that she did not know or secure compliance; and, in relation to disabled applicants, the Home Office breached the public sector equality duty and failed to make reasonable adjustments. The court rejected the defendant’s primary contention that delay was largely due to claimants’ failure to travel and dismissed that explanation on the evidence. Declarations were granted and modest damages awarded; mandatory orders were not required. The rationale was the protection of individuals at imminent risk of serious suffering and the need for effective monitoring to ensure lawful performance of the duty.