High Court finds “catalogue of errors” led to breach of mandatory order in contempt proceedings against the Home Secretary

Sir Ross Cranston, sitting as a Deputy High Court Judge on 7 June 2023, found that there had been a “catalogue of errors” in both the Home Office and the Government Legal Department (“GLD”) that had led to the Home Secretary (“SSHD”) to be in breach of a mandatory injunction to accommodate AM, a vulnerable asylum-seeker with PTSD.

Breach of interim relief order

AM was granted interim relief by DHCJ Tim Smith at a hearing on 4 May 2023. The Judge held that there were good grounds that hotel accommodation, provided under s.95 Immigration and Asylum Act 1999, was causing his mental health to deteriorate significantly. The Judge ordered that AM be accommodated in self-contained accommodation in the locality of his therapeutic support services within 14 days (i.e. 18 May 2023).

On 19 May 2023, AM remained in hotel accommodation, in breach of the order of 4 May 2023 so he made an urgent application for contempt proceedings to be brought against SSHD for her failure to comply. As a result, Mr Justice Constable ordered SSHD to explain whether she had breached the order and, if so, why, and what steps were being taken to remedy the breach. However, on 22 May 2023, GLD filed a letter on behalf of SSHD that did not provide whether she accepted she breached the order, why she did not comply with the order, nor why she failed to apply to vary the order (as explicitly provided for in the order of 4 May 2023).

High Court initiates contempt proceedings against Home Secretary

On 24 May 2023, Mrs Justice Ellenbogen, under rule 81.6 Civil Procedure Rules 1998, initiated contempt proceedings against the Home Secretary and Summonsed her to appear at Court on 7 June 2023 for directions to be given in the contempt proceedings.

On 5 June 2023, over a month since the date of the interim relief order, AM was finally accommodated in self-contained accommodation within the locality of his therapeutic support services.

Home Secretary apologises for “series of errors”

On 6 June 2023, in evidence filed less than 24 hours before the directions hearing was due to take place, SSHD provided that she accepted that she had not only been in breach of the mandatory order to accommodate AM and to apply for an application to vary, but also had failed to comply with the order of Constable J requiring SSHD provide an explanation for the failure to accommodate him. She apologised for these failures and three senior officials from SSHD and GLD attended Court on 7 June 2023.

The evidence filed displayed what SSHD termed a “series of errors” on the part of both SSHD and GLD, who failed to appreciate the urgency and seriousness of the failure to comply with the order of 4 May 2023 resulting in AM remaining in adequate accommodation for a further period.

The “series of errors” included, but was not limited to:

• SSHD looking for the incorrect accommodation for AM and cancelling the accommodation request to her contractors, resulting in the contractors being without any formal instructions to look for accommodation for AM;

• SSHD failing to expedite the request and working to a deadline which post-dated the deadline in the order (despite AM’s legal representatives repeatedly reminding SSHD of the deadline);

• GLD incorrectly assuming accommodation would be provided by the deadline, even though the lawyer had been informed by SSHD that they would only be informed by the contractor whether a proposed property would be available on 18 May 2023 (the deadline for compliance); and,

• GLD failing to adequately inform the Court about what had occurred and failing to take urgent action upon service of the order of Constable J, which was copied into senior GLD lawyers and was headed as requiring immediate attention.

Directions hearing before Sir Ross Cranston, Deputy High Court Judge

At the hearing on 7 June 2023, the Court was told that the Home Secretary had been personally informed and wished to reiterate her respect for Court orders. She reiterated her apology to the Court and AM and her officials outlined a series of steps that would be taken with a view to preventing recurrence of these circumstances.

Notwithstanding the seriousness of the breaches, Sir Ross Cranston determined that the proceedings be brought to a close as a result of AM being accommodated, the Home Secretary’s apology and that the evidence displaying, in his view, that measures were being put in place to prevent such an error from reoccurring. Further, he noted that the Court’s displeasure could be marked by an order for AM’s costs to be paid on an indemnity basis.

Contempt and asylum accommodation

The breach of the order in AM’s case follows a series of similar claims in the last two years in which the Home Secretary failed to comply with interim relief orders to accommodate migrants, including vulnerable asylum-seekers supported under s.95 Immigration and Asylum Act 1999: Mohammad v SSHD [2021] EWHC 240 (Admin) and R (ZOS) v SSHD [2022] EWHC 3567 (Admin). However, AM’s case appears to be one of the rare occasions, unlike in Mohammad and ZOS, in which, at the outset, the High Court considered that the absence of an apology, the ongoing breach and the insufficiency of the explanation were such that the Court was obliged to initiate contempt proceedings against the Home Secretary (rule 81.6(1)).

Donnchadh Greene was instructed by Unkha Banda of Deighton Pierce Glynn in relation to AM’s judicial review and led by Phillippa Kaufmann KC, Matrix Chambers, in relation to the hearing for directions in the contempt application.