R (DXK) v Secretary of State for the Home Department

Key legal principles and disposition: The court considered a systemic judicial review challenge to the Secretary of State’s asylum accommodation system as it affects pregnant and new mother asylum-seekers and failed asylum-seekers (PNMAS), in particular under s 95 and s 4(2) Immigration and Asylum Act 1999 and the Healthcare Needs and Pregnancy Dispersal Policy (HNPD Policy). The court applied the Supreme Court’s guidance on systemic challenges (R (A) and R (BF (Eritrea))) and the decision in R (DMA) v SSHD on the duty to monitor vulnerable groups.

Material grounds of decision: Grounds 2–4 (systemic challenges including HRA Articles 3/8/14 and indirect discrimination) were dismissed as academic in relation to this claimant and, as to the HRA and indirect discrimination arguments, also dismissed for lack of standing. Grounds 5–6 (s 55 BCIA children’s welfare duty and s 149 EA 2010 public sector equality duty (PSED)) were considered on the merits. Ground 5 (s 55) was dismissed. Ground 6 succeeded: the court found the Secretary of State in breach of the PSED for failing to collect and monitor statistical data on allocation of dispersal accommodation to PNMAS, a duty the court derived from the reasoning in DMA and from the PSED statutory obligations. The court made a declaration to that effect and a mandatory order requiring minimum statistical monitoring steps; costs were awarded on the agreed 60% basis for a specified period, and an anonymity order for the claimant and child was continued.

Background and parties: The claimant (national of the Ivory Coast) sought judicial review of the Secretary of State’s system for allocation of asylum accommodation to pregnant and new mother asylum-seekers and failed asylum-seekers (PNMAS). The claim comprised an individual challenge under s 4(2) of the Immigration and Asylum Act 1999 (Ground 1) and systemic and public-law challenges to the operation of the accommodation system (reformulated as Grounds 2–6). The individual challenge became academic after the claimant was moved to dispersal accommodation (DA) on 13 January 2021. The defendant was the Secretary of State for the Home Department; interested parties included Migrant Helpline and Clearsprings Ready Homes.

Nature of the claim / relief sought:

• The claimant originally sought immediate relief in relation to her own accommodation (Ground 1) and, separately, systemic relief seeking declarations and remedies against the lawfulness of the system for allocating DA to PNMAS under s 4(2) and s 95 of the 1999 Act, human rights law (Articles 3, 8 and 14 ECHR / HRA s 6 and s 7), Equality Act 2010 (indirect discrimination and the public sector equality duty) and s 55 BCIA.

Issues framed and court’s approach: The court divided the challenges into systemic grounds (Grounds 2–4) and due-regard grounds (Grounds 5–6). It examined (i) whether the asylum accommodation allocation system was inherently unlawful or would inevitably produce unlawful outcomes (applying the Gillick principle and the Supreme Court authorities on systemic challenges), (ii) whether the claimant had standing to bring the HRA and discrimination claims, and (iii) whether the Secretary of State had complied with s 149 EA 2010 (PSED) and s 55 BCIA.

Court’s reasoning and conclusions:

• The individual challenge was academic and refused permission to be pursued further. The systemic grounds (Grounds 2–4) were also dismissed as academic in relation to this claimant because the matters to resolve were fact-sensitive and required a firm factual matrix in at least one or more individual cases; the court declined to decide those fact-sensitive systemic issues in an academic claim. The HRA grounds and the indirect discrimination ground were further dismissed for want of standing under HRA s 7 and the relevant judicial authority (Privacy International).
• On the PSED (Ground 6) the court followed and applied the reasoning in DMA: the PSED includes a duty to obtain and use equality evidence where necessary. The court found the Secretary of State had failed to collect and monitor statistical data about allocation of DA to PNMAS (for example, numbers assessed, times from eligibility decision to ITP issuance, and times from ITP to actual dispersal) and that this failure breached s 149 EA 2010, given the particular relevance and impact of delays on PNMAS and the continuing nature of the duty. The Vulnerability Log SOP (individual case monitoring) did not satisfy the obligation to collect statistical management information.
• On s 55 BCIA (Ground 5) the court found no breach. Contractual clauses, policy documents and operational measures meant providers were required to have regard to child welfare and the claimant had not demonstrated that s 55 required the additional statistical monitoring sought under Ground 6; in any event that duty is not necessary to be pleaded separately given the conclusion on s 149.

Relief and consequential orders: The court made a declaration that the Secretary of State had failed to comply with s 149 EA 2010 in relation to PNMAS. The court made a mandatory order requiring the Secretary of State to collect and monitor specified statistical data about provision of accommodation to PNMAS (minimum fields identified). The Secretary of State was ordered to pay 60% of the claimant’s reasonable costs for the period from 8 July 2022. The claimant and child’s anonymity was preserved by order without time limit.

The claim was allowed in part and dismissed in part. Grounds 2–5 were dismissed (Grounds 2–4 dismissed as academic in relation to this claimant and the HRA and indirect discrimination grounds also dismissed for lack of standing; Ground 5 (s 55) dismissed on the merits). Ground 6 (breach of the public sector equality duty under s 149 Equality Act 2010 for failure to collect and monitor statistical data on allocation of dispersal accommodation to pregnant and new mother asylum-seekers and failed asylum-seekers) succeeded. The court declared the Secretary of State in breach of s 149, made a mandatory order requiring specified statistical monitoring, awarded costs on an agreed 60% basis for a specified period, and continued anonymity for the claimant and her child.