NS, R (on the application of) v Secretary of State for the Home Office

When deciding whether asylum accommodation is adequate or suitable, the Secretary of State must consider the supported person’s assessed needs and all mandatory relevant evidence. This includes a local authority care needs assessment and evidence of established medical, social and support networks.

The decision-maker must ask the correct question, obtain the information needed to answer it, and exercise the statutory judgment personally. Medical advice may inform the decision, but cannot simply be adopted without evaluating the individual circumstances. A decision unsupported by evidence of that evaluative process is unlawful.

The claimant, a vulnerable Afghan asylum seeker with significant mental health difficulties, had lived for several years in South London and relied on established friends, a support worker, a counsellor and local services. The Secretary of State arranged accommodation in Swindon under sections 98 and 95 of the Immigration and Asylum Act 1999.

The claimant challenged the decisions on the ground that the accommodation was unsuitable because the Secretary of State had failed to engage with his care needs assessment and supporting evidence. He also renewed a challenge to guidance concerning asylum seekers with care needs. By the hearing, he had been granted asylum.

1. The accommodation decisions were unlawful. The claim succeeded in respect of the decisions of 1 June and 9 June 2023. The court made a declaration that the Secretary of State had acted unlawfully under sections 98 and 95 of the Immigration and Asylum Act 1999.
2. Section 96(1)(a) required the accommodation to appear adequate for the supported person’s needs. The care needs assessment was a mandatory relevant consideration.
3. The decision-maker had to ask whether the proposed accommodation was suitable for the claimant’s needs and engage with his care needs assessment, established relationships with his support worker and counsellor, social and religious support network, and mental health evidence.
4. The Secretary of State could seek medical advice, but the statutory judgment remained hers. The caseworker could not simply adopt the medical adviser’s brief view that suitable services existed elsewhere.
5. The absence of evidence explaining the decision-making process was significant. A public authority that fails to provide witness evidence or contemporaneous records assumes a substantial risk of adverse inferences. Submissions cannot replace evidence of evaluative decision-making.
6. Post-decision evidence was irrelevant to legality, although it could bear on relief. Section 31(2A) of the Senior Courts Act 1981 did not prevent relief because it was not highly likely that the outcome would have been substantially the same.
7. Permission to pursue the renewed policy challenge was refused. Although the court considered that the challenge might have force, it was academic for this claimant.

First-instance judicial review in the Administrative Court. The claim was allowed in relation to the accommodation decisions, while renewed permission for the policy challenge was refused.