HZ & Ors, R (on the application of) v Secretary of State for the Home Department

At the permission stage of judicial review, the court considers whether the proposed grounds cross the threshold of arguability, rather than determining whether the public law duties were ultimately breached.

Common law reasonableness may arguably require a public authority to make a reasonably sufficient enquiry, identify obviously relevant considerations, evaluate them and address material concerns. Section 55 of the Borders, Citizenship and Immigration Act 2009 may arguably apply to decisions connected with accommodation under immigration resettlement schemes, including ancillary powers. A broad policy decision does not necessarily answer whether individual decisions complied with those duties. Where arguability is established, the court may grant permission and give expedition and procedural directions while reserving the merits and remedy.

The claimants, Afghan families resettled in the United Kingdom under the ARAP and ACRS schemes, challenged decisions relocating them from bridging accommodation in London to accommodation in Manchester. Their families had arrived in August 2021 and had established educational and, in some cases, employment arrangements before the proposed relocation.

The claim concerned whether the Secretary of State was required to obtain and evaluate information about those arrangements, and whether those duties applied to the overarching relocation policy and the individual decision letters. The claimants relied on common law public law duties and section 55 of the Borders, Citizenship and Immigration Act 2009.

1. Permission and scope of decision. Permission for judicial review was granted on all grounds in all four claims. The court decided only whether the threshold of arguability was crossed. It did not determine the merits, whether any duty had been breached, or what remedy would be appropriate.
2. Common law duties. It was arguable that the common law duty of reasonableness included duties to undertake a reasonably sufficient enquiry, have regard to obviously relevant considerations, evaluate the information obtained and address material concerns before making the relevant decisions. The information about education and employment, and the consequences of relocation after an extended period in bridging accommodation, was capable of engaging those duties.
3. Section 55. It was arguable that the decisions fell within the scope of section 55 of the Borders, Citizenship and Immigration Act 2009 as functions relating to, or in relation to, immigration, asylum and nationality. The court considered it arguable that the provision could extend to ancillary powers. Accommodation arrangements were arguably an integral part of the resettlement schemes. The possible relationship with section 11 of the Children Act 2004 was also relevant.
4. Policy and individual decisions. The court identified arguable questions about whether an overarching policy decision driven by cost and migration pressure could be treated as a fixed premise which drove individual decisions without further enquiry and evaluation. It was also arguable that the individual decision letters provided an opportunity to reconsider the decisions in light of the claimants’ representations.
5. Directions. The claims were heavily expedited. A substantive hearing of approximately one and a half days was contemplated, further evidence was permitted by 20 December 2022, and costs were reserved.

These were first-instance applications for permission to bring judicial review proceedings. No appellate decision is stated in the judgment.