Home Office approach to accommodating asylum seekers unlawful, High Court rules

The High Court has ruled that the Home Office's system for helping destitute asylum seekers with housing and financial support whilst they wait for their asylum claims to be determined is unlawful, following a judicial review challenge brought by five asylum seekers.

In R (SXK, K, NY and AM) v SSHD [2023] EWHC 1876 (Admin), Mr Justice Swift considered five linked claims that argued that Home Secretary Suella Braverman had breached the Immigration and Asylum Act 1999 and the Asylum Support Regulations 2000 by failing to offer the appropriate support and by failing to respond to applications for support sufficiently.

The claims mainly centred around section 95 of the 1999 Act, which gives the Home Secretary the power to provide support for asylum seekers and their dependants if they are either destitute or likely to become destitute within a prescribed period.

The power in section 95 is a duty to the extent that either section 122 of the 1999 Act or regulation 5 of the Asylum Seekers (Reception Conditions) Regulations 2005 applies.

The former requires the Home Secretary to offer section 95 support if it appears to her either that the essential living needs of a child are not being met or that a child does not have adequate accommodation; the latter requires the Home Secretary, if a section 95 application has been made, to provide support if she thinks the applicant is eligible for support.

Four of the five claimants had children and argued that the Home Secretary failed to handle their applications for Section 95 support sufficiently promptly.

One of the claimants, referred to as 'HA', had two children, aged 1 and 2. She and her children arrived in the UK in November 2021.

They stayed in full-board hotels before receiving dispersal accommodation in May 2022. She claimed that the Home Secretary's four-month delay in deciding her section 95 application was too long.

In his decision, Swift J said the Home Secretary must decide section 95 applications within a short period following an applicant's first contact with Migrant Help. "In all cases the Home Secretary and those she has contracted with must act promptly; in most cases a decision ought to be taken within 10 days", he stated.

Another of the claimants, referred to as 'NY', was in private accommodation both when he applied for section 95 support and after his application had been determined. At the time, the Home Office developed two strategies referred to "enigmatically" as "the Approach" and "the Practice", the judge said.

The Practice meant that even after a favourable decision on a section 95 application had been made, the Home Secretary did not provide support for essential living needs until such time as the applicant was moved into dispersal accommodation.

The Approach meant that when a person who made a section 95 application was already in private accommodation, even if the application was granted, no steps would be taken to move the applicant into accommodation provided by the Home Secretary unless the applicant "made a further request for urgent accommodation".

In a letter sent in November 2022, the Home Secretary conceded that the Approach (in the form it then existed) and the Practice were unlawful to the extent that each amounted to an unpublished policy.

At the High Court, Swift J concluded that it was a "fair assumption" that an eight-month delay that NY experienced in the provision of dispersal accommodation and a ten-month delay for financial support was the consequence of the Approach and the Practice.

He also found the Approach to be inconsistent with the Home Secretary's statutory obligations under the scheme for section 95 support.

Leigh Day represented three of the five claimants in the case. Commenting on the decision, Associate Solicitor at Leigh Day, John Crowley said: "The court has found in no uncertain terms that the Home Office's current system for supporting asylum seekers is unlawful.

"It is unacceptable that my clients, and so many others like them, had to go months and months without any form of support, forcing them into desperate and horrifying situations. It cannot be right that people legitimately seeking asylum are made to suffer such degrading treatment. It is time for the Home Office to abide by its legal duties and rectify this wide-reaching problem."

Commenting on the ruling, a Home Office spokesperson said: “Despite the number of people arriving in the UK reaching record levels, we continue to provide support for asylum seekers who would otherwise be destitute.

“We are considering the court’s findings and will respond in due course.”

Adam Carey