R (MQ) v The Secretary of State for the Home Department

The Secretary of State’s discretion to expedite asylum-support dispersal accommodation must be exercised on the individual circumstances of the applicant and household. A residual discretion to prioritise vulnerable applicants does not, without more, amount to an unpublished policy, fetter the statutory discretion or conflict with the duty to safeguard children’s welfare.

Accommodation is assessed by reference to the applicants’ needs, the general context and the likely period of occupation. Accommodation adequate for a short period may become inadequate over a very long period. Hotel accommodation remained adequate on the evidence in this case, and the delay did not breach section 55 of the Borders, Citizenship and Immigration Act 2009, irrationality principles or Article 8.

The claimant, an asylum seeker and single parent of two young children, received interim accommodation under section 98 of the Immigration and Asylum Act 1999 and later qualified for section 95 support. She and her children remained in hotel accommodation while awaiting dispersal accommodation.

She challenged the alleged operation of an unpublished exceptional-circumstances policy, alleged fettering of discretion and breach of the duty to have regard to children’s welfare. She also challenged the adequacy of the accommodation, the failure to expedite dispersal, alleged irrationality and delay under Article 8. The central issues were whether the Secretary of State operated an unlawful policy and whether the accommodation and delay were unlawful.

1. The claim was dismissed. The court rejected the allegation that the Secretary of State operated an unpublished exceptional-circumstances policy. The evidence showed a case-by-case residual discretion to prioritise requests outside the published healthcare and location policies.
2. The phrase exceptional circumstances was treated as shorthand for asking whether the applicant’s particular circumstances were outside the normal run of cases and justified prioritisation. Such a residual discretion did not fetter the statutory discretion. Even if an unpublished policy existed, it was non-prescriptive and did not require publication under the principles in R (Lumba) v SSHD.
3. The Secretary of State had to have regard to children’s welfare under section 55 of the Borders, Citizenship and Immigration Act 2009. The court distinguished AB, OK and MKD, where the decision-maker’s test displaced the section 55 test. Here, the residual discretion did not contradict that duty, and the available information showed that the children’s circumstances had been considered.
4. The adequacy of accommodation depended on the needs and circumstances of the household, the general context and the likely duration of occupation. Applying R (oao A) v NASS and R (NB) v SoS, the hotels had reasonable facilities, were not overcrowded and provided a standard of living adequate for health and subsistence. The food complaints were principally matters of individual taste, and no medical evidence linked the accommodation to any alleged health problems.
5. The failure to expedite dispersal was not irrational. The Secretary of State was best placed to decide priority between applicants, and the high threshold for irrationality was not met. Article 8 was engaged, but there was no breach; alternatively, any interference was proportionate.