Immigration: When is Home Office support “adequate”?

The use of the Bibby Stockholm barge to house up to 500 destitute asylum seekers has reignited the debate in relation to the adequacy of accommodation provided to those with outstanding claims. Various legal challenges have been brought against the Home Secretary in an effort to halt the transfer of asylum seekers to the barge. While higher-profile challenges have focused on the use of the barge generally as accommodation, other challenges concern the transfer of asylum seekers with particular vulnerabilities, for example serious mental health concerns or prior experiences of torture or trafficking.

This briefing considers recent judgments in two English cases which provide guidance on the adequacy of accommodation and financial support provided to asylum seekers.

The legislation

Sections 95 and 96 of the Immigration and Asylum Act 1999 mandate the Home Secretary to provide destitute asylum seekers with accommodation and support adequate for their needs. Section 98 provides for temporary support to applicants who appear to be destitute while a decision in relation to their eligibility for s 95 support is pending. Applicants under s 98 are placed in accommodation on a no-choice basis, often requiring to instruct new legal representation after being placed in new localities, leaving behind existing support systems.

By reg 4(2) and (3) of the Asylum Seekers (Reception Conditions) Regulations 2005 (SI 2005/7), in providing accommodation the Home Secretary is duty bound to take into consideration the special needs of a “vulnerable person”, defined as a minor, disabled person, elderly person, pregnant woman, lone parent with a minor child, or a person who has been subjected to torture, rape, or other serious forms of psychological, physical or sexual violence.

The SA case

In R (on the application of SA) v Secretary of State for the Home Department [2023] EWHC 1787 (Admin), the High Court provided guidance as to when hotel accommodation under s 95 is to be deemed “inadequate” and thus unlawful.

The claimant, a heavily pregnant, destitute asylum seeker with three young children, had been placed along with her dependants in single-room hotel accommodation. She challenged the adequacy of the accommodation, as well as the Home Secretary’s failure to relocate them to suitable accommodation.

Fordham J summarised the legislation and case law relevant to the assessment of “adequacy”, carrying out an assessment in relation to the objective minimum standard of the accommodation and the reasonableness of the Home Secretary’s evaluative judgment of adequacy. It was noted that accommodation must provide for a dignified standard of living and that accommodation which may be adequate in the short term may become unsuitable by the passage of time. Further, adequacy must be tested by reference to applicants’ individual circumstances.

The claimant’s pregnancy, the ages of her children, and the facilities available in the hotel were all significant factors in the court’s assessment of the accommodation as inadequate. It was additionally held that the length of time that the family resided there clearly exceeded what could be expected to be tolerable with reference to the claimant’s statutorily recognised vulnerability. Further, the claimant had not been informed how long she could expect to remain in hotel accommodation, which contributed to the decline of her mental health.

The court granted a mandatory order compelling the Home Secretary to move the claimant and her children to dispersal accommodation within five days.

The HA case

In HA v Secretary of State for the Home Department [2023] EWHC 1876 (Admin), Swift J assessed the Home Secretary’s practices relating to the provision of financial support with regard to the circumstances of various claimants.

In the case of a claimant who had waited a number of months for their application for support to be determined, the court held that the Home Secretary must decide applications for support under s 95 “promptly”, and, in most cases, within 10 days of the applicant’s first contact with Migrant Help. Following decisions, the Home Secretary must then immediately take steps towards providing the support granted.

The court went on to consider whether two claimants with young children had received their full entitlement of financial support. It held that the Home Secretary had acted unlawfully by failing to provide the additional support payment mandated by reg 10A of the Asylum Support Regulations 2000 to pregnant women and children under three years old: this additional support had to be provided by way of a cash payment, rather than in kind, for example via food provided in hotel accommodation.

It was further held that a Home Office policy advising that persons should not be provided with accommodation pursuant to s 95 until they had applied for s 98 support was unlawful, as was its refusal to provide financial as opposed to hotel accommodation support to applicants under s 98.

These cases appear to mark the beginning of a more interventionist approach than has previously been taken by the courts in relation to the adequacy of accommodation and support provided to asylum seekers. As the situations of the claimants in the cases analysed are undoubtedly common, immigration law practitioners should remain alive to the possibility of successfully challenging inaction by the Home Office with regard to accommodation and financial support.