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

A systemic judicial review claim should generally be decided only where there are exceptional reasons to determine an academic issue and the issue is not materially fact-sensitive. A claimant challenging anticipated Convention-rights breaches must also establish that she is an actual or potential victim. The public sector equality duty under the Equality Act 2010 is a continuing duty. In a context where vulnerable asylum applicants face prolonged delays in dispersal, the Secretary of State must consider and collect relevant equality evidence. Here, statistical data was necessary to assess whether pregnant and new mother asylum-seekers were being disadvantaged and whether prioritisation policies were effective. The absence of that monitoring breached the duty. A separate claim under the Borders, Citizenship and Immigration Act 2009 was dismissed.

The claimant, a failed asylum-seeker and mother, applied for asylum support under the Immigration and Asylum Act 1999 while pregnant. She was initially placed in initial accommodation and moved to dispersal accommodation after 105 days, achieving the immediate object of her individual challenge. That claim became academic.

She continued a systemic challenge concerning the allocation of dispersal accommodation to pregnant and new mother asylum-seekers. Grounds 2 to 4 alleged systemic breaches of statutory duties and Convention rights, indirect discrimination and failures to follow policy. Grounds 5 and 6 alleged breaches of the children’s welfare duty and the public sector equality duty. The central issue was whether the Secretary of State could lawfully operate the system without collecting and monitoring statistical data about this vulnerable group.

Outcome. Grounds 2 to 5 were dismissed. Ground 6 was allowed. The court declared that the Secretary of State had failed to comply with the public sector equality duty and made a mandatory order requiring statistical monitoring.

1. The systemic grounds were academic as they concerned the claimant and raised fact-sensitive questions. The court should decide an academic claim only exceptionally, particularly where many similar cases exist and the issue is not fact-sensitive. Whether accommodation was adequate, provided within a reasonable time, or allocated consistently with policy depended on individual circumstances. The court therefore made no substantive ruling on systemic unlawfulness under the Immigration and Asylum Act 1999 or the HNPD Policy.
2. The Convention-rights grounds also failed for lack of standing. Under sections 6 and 7 of the Human Rights Act 1998, a claimant must be an actual or potential victim. The claimant neither advanced nor established that status after her move to dispersal accommodation.
3. The indirect-discrimination claim failed for the same reason. A claim under section 19 of the Equality Act 2010 requires an individual claimant who is or would be disadvantaged by the relevant provision, criterion or practice. The court declined to determine the unresolved question whether pregnancy and maternity could support an indirect-discrimination claim under section 19(3).
4. The public sector equality duty applied to the provision of asylum accommodation. Pregnant and new mother asylum-seekers and their infants had different needs and were disproportionately affected by delay. The continuing duty required the Secretary of State to consider whether the HNPD Policy and the Vulnerability Log SOP were effective. Statistical data was necessary to identify trends, assess disadvantage and determine whether those measures worked. The court followed the approach in R (DMA) v Secretary of State for the Home Department [2021] 1 WLR 2374 and held that the absence of such monitoring breached section 149(1)(b).
5. The section 55 duty was not breached. The AASC contract, policy documents and operational procedures made adequate arrangements for service providers to have regard to children’s welfare. The claimant had not shown that section 55 independently required the statistical monitoring sought.
6. A declaration alone was insufficient because the Secretary of State had not remedied the monitoring breach identified in R (DMA) v Secretary of State for the Home Department [2021] 1 WLR 2374 and had resiled from earlier undertakings. The mandatory order required monitoring of the number of PNMAS requiring accommodation, dispersal before the protected period, the principal ITP and dispersal intervals, and total time in initial accommodation. No particular monitoring method or deadline was prescribed.

This was a first-instance judicial review. Permission was granted on 21 December 2020. The claimant moved to dispersal accommodation on 13 January 2021, after which the individual challenge became academic. Permission to pursue reformulated Grounds 2 to 6 was granted on 28 June 2023. No appellate decision is stated in the judgment.