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

In judicial review proceedings concerning asylum accommodation during the Covid-19 pandemic, interim relief may require accommodation to be provided where an asylum seeker is destitute and support under section 95 of the Immigration and Asylum Act 1999 remains applicable. Once the Secretary of State provides the required support, the court will not ordinarily use those proceedings to require a general clarification of policy or arrangements extending beyond the claimant’s pleaded case. Questions not forming part of the application, including wider operational and communication issues, should be addressed in appropriate proceedings or by the public authority.

AQS, an asylum seeker who was destitute and experiencing possible Covid-19 symptoms, was initially living in shared asylum accommodation. After an incident, he was required to leave and was temporarily without suitable accommodation. His representatives alleged that the Secretary of State had a policy of refusing accommodation to asylum seekers with Covid-19 symptoms.

The court granted urgent interim relief requiring single-person accommodation. The Secretary of State then provided accommodation, including at a facility for asylum seekers with Covid-19 symptoms, and stated that there was no policy excluding symptomatic persons from accommodation. AQS nevertheless sought further clarification concerning transport, accommodation after symptoms abated, and communication of the policy. The issue was whether further orders were appropriate in the continuing judicial review proceedings.

1. Interim relief and present position. The Secretary of State accepted that AQS was entitled to support, including accommodation, under section 95 of the Immigration and Asylum Act 1999 and the Asylum Seekers (Reception Conditions) Regulations 2005. The urgent interim order requiring single-person accommodation had served its immediate purpose once suitable accommodation was provided.
2. Alleged policy. On the evidence then available, there was no current policy not to accommodate asylum seekers with Covid-19 symptoms. The dedicated accommodation provided to AQS appeared to demonstrate that position. The Secretary of State’s assertion that no such policy had existed previously was left for consideration at the permission stage, if the issue remained live.
3. Limits of the proceedings. Issues concerning out-of-hours transport, accommodation after symptoms had abated, and the communication of guidance were important. They were not, however, the subject matter of the judicial review claim as commenced. The proceedings were not an appropriate vehicle for requiring the Secretary of State to set out wider arrangements or for conducting a general debate on whether the policy was lawful.
4. Orders. The interim order was not discharged. The court declined to order further clarification of the Secretary of State’s policy and its communication. The continuation of the proceedings, including any proposed damages claim, was left for AQS and his advisers to consider.