Shajmin Akter Parul (R on the application of) v The Secretary of State for the Home Department

The claimant sought judicial review of the Secretary of State's failure to provide section 4 accommodation in the London Borough of Tower Hamlets in accordance with a written undertaking dated 3 March 2022. The court treated the defendant's decision to relocate the claimant to Tower Hamlets as coextensive with the Secretary of State's duty under section 4(2) of the Immigration and Asylum Act 1999 and the protection against an imminent breach of Article 3 ECHR. The judge held that, on the facts before the court, the Secretary of State had failed to secure suitable accommodation within a reasonable period of time, in breach of the section 4(2) duty.

The decision relied on the legal framework set out in R (DMA, AHK, BK and ELN) v SSHD and Limbuela and on the Secretary of State's own Policy and operational guidance (including the Guide and Healthcare Guidance). The absence of any evidential material from the defendant explaining what steps had been taken to source accommodation was a material factor in finding the delay unlawful. The court concluded that a mandatory order would originally have been appropriate but, because the claimant had been re-accommodated prior to hand-down, declaratory relief was granted that the prior failure was unlawful.

Background and parties:

• The claimant, an individual with multiple chronic medical conditions including complex epilepsy, applied for judicial review of the Secretary of State's failure to provide accommodation under section 4(2) of the Immigration and Asylum Act 1999 in Tower Hamlets, as agreed in a letter dated 3 March 2022.
• The claimant had been in shared accommodation in Lambeth since 26 March 2021 and had requested dispersal to Tower Hamlets so she could access specialist treatment at The Royal London Hospital and local family support.
• The defendant accepted that the claimant should be rehoused in Tower Hamlets but contended that suitable accommodation was not available and that the delay was not unreasonable.

Nature of the claim and relief sought:

• The claimant sought an order requiring the Secretary of State to provide suitable self-contained ground-floor accommodation (or upper-floor accommodation with lift access) in Tower Hamlets within a reasonable time. The claimant’s grounds advanced that the delay breached (i) the duty to provide accommodation within a reasonable period under section 4(2), (ii) the defendant’s own guidance, (iii) the statutory duty to make reasonable adjustments under sections 20 and 29(7) of the Equality Act 2010, and/or (iv) was otherwise unreasonable.

Issues framed by the court:

• Whether the Secretary of State's agreement to rehouse the claimant engaged and transformed the section 4(2) power into a duty because of an imminent prospect of an Article 3 breach.
• Whether the defendant had provided suitable accommodation within a reasonable period of time, having regard to the statutory scheme, relevant policy and guidance, and the claimant's medical vulnerability.
• Whether the defendant breached its guidance and Equality Act obligations and, if so, whether relief in the form of a mandatory order or declaration was appropriate.

Court's reasoning and conclusions:

• The judge accepted the authorities that the section 4(2) power becomes a duty where, on a fair and objective assessment, a destitute person faces an imminent prospect of serious suffering such that Article 3 may be breached (relying on Limbuela and DMA and related authorities).
• The court found that the defendant's written decision of 3 March 2022 to rehouse the claimant in Tower Hamlets amounted to a formal decision to exercise the section 4(2) power in a way that engaged the duty to avoid an Article 3 breach. The court therefore treated the obligation to rehouse as arising from that decision.
• The defendant filed no evidential material setting out what steps had been taken to find suitable accommodation, how the claimant had been prioritised under the Guide or the provider's voids and stock position. The absence of such evidence was decisive: the claimant had been left without the agreed accommodation for a prolonged period (measured from January and March 2022) and the delay was unreasonable.
• Given the statutory context, the claimant's medical vulnerability, and the defendant's failure to demonstrate that all reasonable steps had been taken, the court concluded the delay was in breach of the section 4(2) duty and unlawful.
• Relief: the court considered mandatory relief appropriate, directing that accommodation be secured within eight weeks, but after the claimant was re-accommodated before hand-down the parties agreed and the court granted declaratory relief that the defendant's prior failure to rehouse the claimant in Tower Hamlets before 10 August 2022 in accordance with the 3 March 2022 decision was unlawful.

Wider observations:

• The judgment emphasises the importance of evidential material from the public authority to show what steps were taken to fulfil accommodation duties and applies the principles in DMA about the meaning of a "reasonable period" in the section 4(2) context.

The claim is allowed. The court held that the Secretary of State had failed to rehouse the claimant in Tower Hamlets within a reasonable period of time, thereby breaching the duty arising under section 4(2) of the Immigration and Asylum Act 1999 as it had been exercised by the defendant in the 3 March 2022 decision. The defendant filed no evidence demonstrating what steps had been taken to secure accommodation; given the claimant's medical vulnerability and the length of delay the failure was unlawful. The court awarded declaratory relief because the claimant had been re-accommodated prior to hand-down.