Judge dismisses application for interim relief for homeless asylum seeker after breach of duty of candour

A Deputy High Court judge has dismissed an application for interim relief in the form of suitable accommodation submitted on behalf of a street homeless former asylum seeker, both on the merits and because of the claimant’s breach of the duty of candour.

Mr Justice Lavender had ordered Brighton and Hove City Council to accommodate the claimant after the submission of an urgent out-of-hours application.

The case then came before Ms Margaret Obi, sitting as a Deputy High Court judge, whose judgment in Ncube, R (On the Application Of) v Brighton And Hove City Council [2020] EWHC 3646 was published last week on Bailii.

The background to the case was that the claimant had arrived in the UK in 2005. He applied for asylum the following year.

Between 2005 and 2020, the claimant stayed with a variety of friends and family members. Most recently he was living with his sister, but in mid-September 2020 she asked him to leave.

The claimant is ordinarily resident in the defendant’s district and was spending most nights at Brighton and Hove railway station. He suffers diabetes, visual impairment due to diabetes, and symptoms associated with suspected depression and anxiety.

In October 2020 he contacted Migrant Help, the advice provider appointed by the Home Office. He was told he was not eligible for support under s.4(2) of the Immigration and Asylum Act 1999.

Judge Obi said that initially she was informed that a s.4 application had been made, but she was informed that an application was not made until the day before the hearing.

Counsel for the claimant submitted there was a strong arguable case that the Government’s “Everybody-In” policy during the Covid-19 pandemic included the claimant and that he had a legitimate expectation that he would be provided with suitable accommodation until 30 December 2020.

Counsel for Brighton and Hove submitted that the “Everybody-In” policy was irrelevant because ministers had made it clear that the money provided under this initiative was not to be used to circumvent immigration.

It was submitted that there was a statutory scheme for failed asylum seekers under s.4 of the Immigration and Asylum Act 1999, and, if the claimant applied under the scheme and was refused, the application for judicial review should be against the Secretary of State.

Judge Obi said she was mindful that this was an application for interim relief “and, accordingly, nothing in this judgment should be taken as a concluded view on the general arguability of the claim”.

She said, however, that she was satisfied, based on the information before her - and the information that was not before Lavender J, which includes the May 2020 and September 2020 letters [from the Minister for Rough Sleeping and Housing to local authorities] - that the claim did not pass the threshold for the grant of interim relief on the basis of legitimate expectation. It also did not pass the threshold on the basis of a statutory provision.

The judge considered what the position was if she was wrong about the merits of the case. She took the issues of availability of an alternative remedy and the duty of candour together, because, in her view, they were interrelated.

Judge Obi said she accepted the submission by the council that, as a failed asylum seeker, the claimant should have made an application under s.4, which required submission of a very long application form.

“It is stated in the statement of facts and grounds that the claimant made an application but it was refused. This is the document that was before Lavender J on 6 October 2020. However, [counsel for the claimant] has confirmed this morning that that is not what happened. The application for accommodation under s.4 was made yesterday, which may explain why there is no mention of the application in the claimant's witness statement and no mention of it in the witness statement provided by the adviser from Voices in Exile, who provide advice to refugees, asylum seekers and those with No Recourse to Public Funds. Both witness statements are dated 7 October 2020.”

The judge said she did not accept that the s.4 application was a red herring, as suggested by the claimant’s counsel.

“The judicial review claim is for suitable accommodation,” she said. “As there is a statutory scheme, which offers the opportunity for accommodation to be provided, in certain circumstances and subject to certain conditions, the steps that have been taken to further that application are highly relevant.”

Judge Obi noted that the claimant was subject to the duty of candour, which required the parties to ensure that all relevant information and facts were put before the court.

“The duty extends to making proper enquiries before making an application. It is a heavy burden and I have reached the conclusion that it has not been discharged in this case,” she said.

“There is no good reason, as far as I can see, why the status of the s.4 application (i.e. the fact that there has, in fact, been no application until yesterday) had not been communicated to the court previously. An application has either been made or it has not. The duty of candour required that to be made clear and it was not made clear. For that reason, alone, I would refuse the application for interim relief.”

The judge concluded: “The application for interim relief is refused on the merits, but, in any event, I refuse it for breach of the duty of candour.”