Court Finds Secretary of State Acted Unlawfully in Failing to Consider Asylum Seeker's Support Network in Accommodation Decision

Citation: [2023] EWHC 2675 (Admin)
Judgment on

Introduction

In the High Court of Justice decision in NS, R (on the application of) v Secretary of State for the Home Office ([2023] EWHC 2675 (Admin)), presided over by Mr Justice Saini, key legal issues regarding asylum accommodation provided by the Secretary of State under sections 95 and 98 of the Immigration and Asylum Act 1999 were dissected. The court scrutinized the adequacy of accommodation provided to an asylum seeker in light of his mental health needs and assessed whether the Secretary of State acted lawfully in considering the claimant’s circumstances.

Key Facts

The claimant, an Afghan national and a vulnerable asylum seeker, was initially accommodated in South London, where he had established a support network of friends, medical professionals, and community ties over eight years. Challenges arose when he was relocated to Swindon, which the claimant alleged was inadequate and detrimental to his mental health. The Secretary of State had relied upon medical advice that suggested suitable medical services existed in other cities and that transferring care would not adversely affect the claimant. However, a Care Needs Assessment (CNA) from the local authority suggested the claimant needed to remain in South London to access his current counselor, youth worker, and support network.

The core legal principle at stake was the statutory duty under sections 95 and 98 of the Immigration and Asylum Act 1999, where accommodation must be “adequate for the needs of the supported person” (s. 96(1)(a)). The Secretary of State’s decision-making process needed to satisfy the “Tameside principle,” ensuring that relevant information was acquired and considered adequately to inform a correct decision. A statutory duty, such as accommodating an asylum seeker, cannot be fully delegated to a medical advisor, and the decision-maker must not simply “rubber-stamp” their views, a reference to Secretary of State for Education and Science v Tameside MBC ([1977] AC 1014).

Additionally, the court judged the Secretary of State’s decisions against the SSHD Allocation Policy and the SSHD’s own ASCN Guidance, which require careful consideration of the person’s individual circumstances, including medical and social care needs.

Lastly, the materiality of a public law error was outlined, with reference to section 31(2A) of the Senior Courts Act 1981, which tests whether it is highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred.

Outcomes

The court concluded that the Secretary of State acted unlawfully in accommodating the claimant away from his support network without due consideration of his needs as evidenced by the CNA and other relevant support letters. Additionally, the Secretary of State did not follow its own Allocation Policy by considering whether the case presented “exceptional circumstances.”

The court discussed the potential consequences of the SSHD’s ASCN Guidance, suggesting that it might mislead caseworkers into refusing s.98 accommodation pending the conclusion of a local authority assessment, thus possibly acting unlawly. However, permission was refused to challenge this part of the guidance as it was rendered academic due to the claimant having been granted asylum.

Conclusion

The NS case emphasizes the meticulous judicial attention given to the statutory mechanisms for supporting asylum seekers and the precise legal responsibilities of the Secretary of State. Mr Justice Saini’s decision underscores the importance of individualized consideration of asylum seekers’ needs and the crucial interplay between the statutes, policy guidance, and the duty of the state to fulfill its statutory obligations lawfully. It also highlights the risky nature of the SSHD’s approach to litigation when failing to engage adequately with evidence and the duties imposed by Parliament. The decision is a clear reminder that procedural propriety is not just a doctrinal requirement but a safeguard for vulnerable individuals relying on the state for support.