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

In a judicial review concerning asylum support during the Covid-19 pandemic, it was arguable that a public authority which had identified homelessness as a public-health risk had acted irrationally by failing to consider whether the same risk arose when refusing accommodation to destitute former asylum-seekers.

The Public Sector Equality Duty is continuing. Where circumstances materially change, a public authority may be required to reconsider the equality implications of an existing policy. At the permission stage, proposed grounds should proceed where they are properly arguable and require examination of the decision-maker’s evidence and reasoning.

The claimant challenged the Secretary of State’s refusal on 7 January 2021 to provide accommodation and support under section 4 of the Immigration and Asylum Act 1999, and the policy of refusing accommodation to destitute former asylum-seekers who were not already accommodated.

Permission had previously been granted on human-rights grounds and on an alleged irrationality challenge framed in the context of article 14 of the ECHR. The claimant sought renewed or additional permission on grounds alleging irrationality, breach of the Public Sector Equality Duty on grounds of race and breach of that duty on grounds of disability.

The central issues were whether the additional grounds were arguable and whether they should proceed to a substantive hearing.

1. Renewed permission. Grounds (i), (v) and (vi) depended on the mistaken assumption that, from March to September 2020, the Secretary of State had operated a policy of accommodating all destitute failed asylum-seekers. The renewed application on those grounds was refused.
2. Public-health irrationality. Ground (viii) was arguable. The Secretary of State had identified the public-health risks of homelessness and had continued accommodation for persons already receiving section 4 or section 95 support during the pandemic. It was therefore arguable that she irrationally failed to consider whether refusing accommodation to a comparable destitute cohort created the same public-health risk. The issue required a full oral hearing with the relevant evidence.
3. The court noted the public-health rationale underlying the government’s accommodation approach, including the heightened risk associated with homelessness described in R (Ncube) v Brighton & Hove City Council [2021] EWHC 578 (Admin).
4. Public Sector Equality Duty. The claimant’s grounds (ix) and (x), alleging failure to have due regard to the statutory equality aims when continuing to apply the refusal policy during the pandemic, were not hopeless. The duty was said to be continuing, and the pandemic arguably represented a fundamental change in circumstances. The court required a detailed response and evidence from the Secretary of State before determining permission.
5. Permission was therefore continued on grounds (ii), (iv) and (viii). Grounds (ix) and (x) were reserved for consideration at the rolled-up substantive hearing.