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High Court upholds systemic challenge to unreasonable and discriminatory delays in the provision of asylum support

14th December 2020

The High Court has given judgment in R (DMA, AHK, BK and ELN) and R (AA) v Secretary of State for the Home Department [2020] EWHC 3416 (Admin), a significant judicial review challenge concerning systemic delays in the provision of adequate accommodation to destitute, refused asylum seekers.

The Court upheld the claims of 5 individuals who challenged the Secretary of State’s operation of the asylum support system. Each claimant experienced unreasonable delays in the provision of accommodation. 

Mr Justice Robin Knowles CBE found that the Secretary of State’s operation of the system to be unlawful and discriminatory due to widespread and unreasonable delays in providing accommodation (in breach of the Secretary of State’s statutory duties) and due to her failure to properly monitor affected individuals, including disabled persons.

Under section 4(2) of the Immigration and Asylum Act 1999 (‘the 1999 Act’), the Secretary of State has a power and a duty to provide accommodation and subsistence support to eligible destitute refused asylum seekers. In practice, section 4(2) governs the provision of support to ‘highly vulnerable’ individuals.

The Secretary of State performs her section 4(2) duty via seven regional Asylum Accommodation Support Contracts (‘AASC’) with three private sector companies.[1] The contracts are worth some £4 billion over 10 years.[2]

Despite these contractual arrangements, the claimant ‘AA’, who was seriously disabled with a terminal illness, and who was represented by Ben Amunwa, barrister at The 36 Group, suffered ‘huge delay’ when the Secretary of State failed to arrange adequate accommodation for a period of 9 months.

The Court was assisted by detailed evidence from four different NGOs (the Refugee Council, Freedom from Torture, Helen Bamber Foundation and Bristol Refugee Rights) each highlighting ways in which the needs of disabled individuals were not being adequately addressed by the Secretary of State. 

In the Court’s view, the Secretary of State’s evidence regarding the monitoring of the private contractors under the AASC was ‘chaotic’. The Secretary of State had given inaccurate performance figures to the Court. In reality, contractor performance was far worse than the Secretary of State had claimed it was. According to the Judge: ‘There cannot have been proper monitoring’ by the Secretary of State of the Key Performance Indicator under the AASC for the provision of accommodation within requested timescales.

 

Comment

Welcoming the judgment, Ben Amunwa, barrister at The 36 Group, said: ‘After 18 months of litigation, this is a significant moment of accountability for the Secretary of State’s operation of the asylum support system.’

‘What comes next depends on the government’s response,’ Mr Amunwa added. ‘The Secretary of State has the opportunity to alleviate destitution among migrants and asylum seekers by making necessary policy changes. This is particularly urgent in the many cases of vulnerable and disabled individuals who face unreasonable delays in the provision of accommodation that they are legally entitled to.’

 

Representation

Each of the 5 claimants were represented by the public law firm, Deighton Pierce Glynn.

AA was represented by Ben Amunwa of The 36 Group, led by Zoe Leventhal of Matrix Chambers and instructed by Sasha Rozansky (partner) Robyn Taylor (solicitor) and Georgina Colegate-Stone (solicitor) of Deighton Pierce Glynn.

The claimants DMA, AHK, BK and ELN were represented by Alex Goodman of Landmark Chambers, leading Katherine Barnes of 39 Essex, instructed by Polly Glynn (partner) of Deighton Pierce Glynn.

The Defendant was represented by Robin Tam QC leading Emily Wilsdon, both of Temple Garden Chambers, and Shakil Najib of No5 Chambers.

[1] Serco, Mears Group and Clearsprings Ready Homes.

[2] See National Audit Office, Asylum accommodation and support, (1 July 2020) pages 4, 5 and 48, available here: www.nao.org.uk/report/asylum-accommodation-and-support/.


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