SA, R (on the application of) v Secretary of State for the Home Department

The Home Secretary’s duty to provide an asylum seeker with adequate accommodation is governed by a twin-track test. The accommodation must meet an objective minimum standard which ensures a dignified standard of living, adequate health and subsistence. Any evaluative judgment that accommodation is adequate must also satisfy public law standards of reasonableness.

Adequacy depends on the individual needs of every family member, including vulnerability and a child’s age. Accommodation suitable for a short period may become inadequate through prolonged occupation, changed needs and open-ended uncertainty. Where accommodation is provided by contractors, the statutory duty remains the Home Secretary’s. An absence of evidenced, individualised decision-making may materially restrict the latitude afforded to the decision-maker on judicial review.

The claimant was an asylum seeker and lone parent with four children. The Home Secretary accommodated the family in a hotel under sections 95 and 96 of the Immigration and Asylum Act 1999. The claimant spent the final stages of pregnancy there and remained after giving birth. The family occupied first a severely cramped room and then a seriously cramped room, where they ate, slept and lived.

The claimant sought judicial review, alleging breach of the statutory duty to provide adequate accommodation and unjustified departure from the Healthcare Needs and Pregnancy Dispersal Policy. Permission was granted on that ground. The central issue was whether the hotel accommodation, considered cumulatively and over the prolonged period of occupation, satisfied the objective minimum standard and public law reasonableness requirements.

1. The claim was allowed. The Home Secretary had breached the statutory duty to provide adequate accommodation under sections 95 and 96(1)(a) of the Immigration and Asylum Act 1999. The accommodation failed both limbs of the twin-track test. It fell below the objective minimum standard required for a dignified life, health and subsistence. Any evaluative judgment that it remained adequate was also unreasonable.

2. Adequacy had to be assessed against the circumstances and needs of every person owed the duty, including each child’s age. The court considered the cumulative effect of severe or serious overcrowding, the absence of a dining room, a practical homework space or a children’s play area, inadequate laundry arrangements for a baby, restricted food choice and preparation, and diminishing privacy.

3. The passage of time was decisive when combined with those conditions. Accommodation may be adequate for a short period yet become inadequate through prolonged occupation. The family had spent about 15 months in initial accommodation without being told when their stay would end. Open-ended uncertainty aggravated the effects of the conditions and impaired the family’s ability to cope.

4. The claimant was both a pregnant woman and a lone parent with minor children. Regulations 4(2) and 4(3) of the Asylum Seekers (Reception Conditions) Regulations 2005 required her special needs to be considered. The Home Secretary had unjustifiably departed, in substance and procedure, from the applicable pregnancy dispersal policy. There was no evidenced individual assessment, consultation, reasoned decision or good reason for departure.

5. The statutory duty remained the Home Secretary’s notwithstanding delivery through a private contractor. The absence of records or evidence of evaluative decision-making limited the latitude which submissions could secure under reasonableness review. The natural inference was that no reasoned assessment had occurred.

6. The breach existed when proceedings commenced and continued at judgment. The Home Secretary was ordered to provide adequate dispersal accommodation by 4 pm on 21 July 2023 and to pay the claimant’s costs on the standard basis.

• High Court (Administrative Court): HHJ Dight granted permission for judicial review at an oral hearing on 20 April 2023. Fordham J subsequently allowed the claim and made a mandatory order requiring adequate dispersal accommodation.