NB & Ors, R (On the Application Of) v Secretary of State for the Home Department

Accommodation provided to destitute asylum seekers under section 96 of the Immigration and Asylum Act 1999 must satisfy the objective minimum standards of the Reception Conditions Directive. It must ensure a standard of living adequate for physical and mental health and capable of ensuring subsistence. Duration, individual vulnerability and cumulative conditions are relevant.

Where accommodation is unsuitable for vulnerable people, the Secretary of State must operate a reasonable system for obtaining and reviewing the information needed to apply suitability criteria. Publishing criteria alone is insufficient.

An instruction to remain at accommodation under all circumstances, backed by threatened arrest or financial penalty, can constitute false imprisonment and deprivation of liberty. Compliance remains enforced even if some other residents disobey the instruction.

Six asylum seekers challenged decisions to accommodate them at Napier military barracks under section 95 of the Immigration and Asylum Act 1999. Each had evidence of torture, trafficking or related vulnerability. They alleged that the accommodation was inadequate, that the system for assessing suitability was unlawful, that their Convention rights had been breached, and that restrictions on leaving amounted to unlawful detention.

The barracks used shared dormitories and had a detention-like appearance. Public Health England had advised against dormitory accommodation during the Covid-19 pandemic. Important mitigation measures were not implemented, a large outbreak occurred, and fire inspectors identified serious or significant risks.

The principal issues were whether the accommodation met the statutory and Directive minimum standard; whether the initial and continuing suitability-assessment system complied with the Tameside duty; whether Articles 2, 3 or 8 were breached; and whether an alleged overnight curfew and the instruction imposed during the outbreak constituted false imprisonment or deprivation of liberty.

1. The claims succeeded on Grounds 1 and 2 and partly on Ground 4. The other grounds were dismissed. The parties were directed to agree declarations and directions for assessing damages.

2. The objective minimum standards of the Reception Conditions Directive applied to accommodation under section 96(1)(a) of the Immigration and Asylum Act 1999, just as they applied to other asylum support. The accommodation had to ensure a standard of living adequate for applicants’ physical and mental health and capable of ensuring subsistence. That right continued after 31 December 2020 under section 4 of the European Union (Withdrawal) Act 2018. Duration and individual needs were relevant to adequacy.

3. During the claimants’ residence, the barracks failed that minimum standard. The conclusion followed from the cumulative conditions and, independently, from the Covid-19 and fire risks. The Secretary of State departed without adequate reason from Public Health England’s advice, failed to implement material proposed safeguards and exposed residents to an inevitable outbreak. Fire-safety arrangements exposed residents to an unacceptable risk. Any view that the accommodation was adequate for these claimants was irrational. The court did not decide that the barracks could never lawfully be used.

4. The Tameside duty required a reasonable system for gathering and reviewing the information needed to apply the Secretary of State’s suitability criteria. The initial forms and truncated screening interviews were inadequate for identifying trafficking, torture and other vulnerabilities. Continuing monitoring was also inadequate because on-site staff generally lacked knowledge of the criteria, referral mechanisms and relevant safeguarding needs. These were systemic shortcomings, not merely isolated errors.

5. Articles 2, 3 and 8 of Schedule 1 to the Human Rights Act 1998 were not breached. The Covid-19 and fire risks did not meet Article 2’s high threshold of a real and immediate risk to life. Although the conditions were seriously deficient and mental health deteriorated, they did not attain Article 3’s minimum severity. The available means of obtaining bodily and conversational privacy prevented an Article 8 violation.

6. The alleged 10 pm to 6 am curfew was not proved. Before 15 January there was an expectation about returning overnight, rather than an enforced rule requiring residents to remain. The separate allegation that OMA was confined in the recreation room was also rejected on the evidence.

7. By contrast, the instruction issued on 15 January 2021 falsely imprisoned each claimant and deprived him of liberty under Article 5. It required residents not to leave under any circumstances, inaccurately presented that requirement as law, and threatened arrest or a fixed penalty. The surrounding security arrangements and police presence reinforced the threat. Other residents’ occasional defiance did not make the claimants’ compliance voluntary. Quantum was left for later determination.

• High Court (Administrative Court): The claims were issued between 27 January and 4 February 2021. Chamberlain J granted permission on 16 February 2021 and directed an expedited hearing. Interim orders required the transfer of NB, OMA and XD from the barracks. In the present judgment the court allowed Grounds 1 and 2 and part of Ground 4, and dismissed the remaining grounds.