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High Court finds the Home Secretary acted unlawfully in accommodating three asylum seekers at Raf Wethersfield

In a significant ruling today, the High Court of Justice has found that the Home Secretary acted unlawfully and in breach of her duties under the Immigration and Asylum Act 1999 by accommodating three vulnerable asylum seekers – TG, MN, and HAA – at RAF Wethersfield. These individuals are victims of trafficking, torture and/or serious physical violence who each suffered a serious decline in their mental health as a result of living at Wethersfield. In relation to TG, Mr Justice Mould held that the Defendant also discriminated against him by accommodating him at Wethersfield in breach of her duty to make reasonable adjustments for his disabilities under the Equality Act 2010.

Further, and importantly, the High Court held that the Home Secretary had made “a most serious and inexplicable omission” in failing to assess the equalities impact when amending its asylum accommodation policy, the effect of which was that vulnerable asylum seekers with special needs or disabilities may be judged suitable to be accommodated at Wethersfield. In particular, on the evidence before the Court, the Judge found that “this amounted to the clearest failure on the part of the defendant to fulfil the PSED” (the public sector equality duty under the Equality Act 2010) and that no other conclusion than a breach could be found. The Court went on to find that this serious breach of the public sector equality duty has “carried forward” into the next version of the policy and remains a continuing breach.

The High Court rejected the Claimants’ challenge to the systems arrangements for allocating asylum seekers to Wethersfield barracks, but this was only on the basis of what the arrangements looked like in July 2024 at the time of the hearing. By then, the Defendant had already moved more than 200 asylum seekers from the barracks on grounds that they were unsuitable. More than a dozen judicial review claims were issued resulting in relocation of those vulnerable asylum seekers as well. The High Court did not rule on whether the arrangements that all of those individuals were subject to between August 2023 and February 2024 were capable of operating lawfully. Moreover, the breaches found by the Judge in the cases of TG, MN and HAA illustrate that the Home Secretary is not only required to have a system capable of operating lawfully, she must act lawfully in each individual case, and the failure to do so in an individual case will still be unlawful and a breach of her duty to provide adequate accommodation to destitute asylum seekers. 

Shu Shin Luh and Sarah Dobbie of Doughty Street’s Public Law, Community Care and Health and Immigration Teams were instructed on behalf of three of the four Lead Claimants along with Ben Amunwa of 3PB Barristers, led by Angus McCullough K.C. of 1 Crown Office Row. They were instructed by Deighton Pierce Glynn and Gold Jennings. 

Background

During the lifetime of this claim, the Home Office had published four different versions of the Allocation of Asylum Accommodation Policy – versions 9, 10, 11 and 12. 

On 12 July 2023, the Home Office published version 9 of the policy and began accommodating asylum seekers at RAF Wethersfield, initially planning to accommodate up to 1,700 asylum seekers at the site. Clearsprings Ready Homes were contracted by the Home Office to manage the site. 

Between November 2023 and January 2024, MN and HAA, represented by DPG, TG, represented by Gold Jennings, and MJ, represented by Duncan Lewis, issued claims for judicial review after being accommodated at the controversial military site. They challenged the failure of the Home Secretary to provide them with adequate accommodation in breach of her duty to do so under section 95 of the Immigration and Asylum Act 1999. They were selected as “Lead Claimants”. 

TG, MN and HAA in joint grounds challenged the use of the site on a number of grounds, including the lawfulness of accommodating them in Wethersfield and the Home Secretary’s systems for identifying those unsuitable for Wethersfield as victims of trafficking, torture, or other serious physical violence, or as individuals with mental ill-health or disabilities. Their cases were heard by Mr Justice Mould during a four-day trial between 23 and 26 July 2024, together with MJ. The Court heard evidence that:

  • The health of asylum seekers on the site was being seriously harmed by being accommodated at Wethersfield;
  • The Independent Chief Inspector of Borders and Immigration raised alarm bells to the Home Office in December 2023 and January 2024 about a wide pattern of disorder at the site;
  • Reports commissioned by the Home Office from the British Red Cross and the Management & Training Corporation (MTC), and provided to the Home Office in February and May 2024, revealed serious concerns about the arrangements and operations at the barracks, including recurring violence, high levels of suicidal ideation, and overwhelmed staff, untrained in safeguarding of vulnerable asylum seekers and struggling to provide a very basic service; and
  • Violent incidents, harassment and victimisation motivated by racial tensions and discrimination took place under the Home Office’s watch.

Judgment

In upholding the claims of TG, MN and HAA, Mr Justice Mould found that they were unlawfully accommodated by the Home Secretary at RAF Wethersfield. Mr Justice Mould found:

In respect of TG, a victim of trafficking and serious physical violence, that he should never have been accommodated there, having told the Home Office that he was trafficked and had been badly beaten by his traffickers. Despite requests by his trafficking support worker for his urgent transfer out of the barracks owing to the harm to his mental health, this information was ignored. The Home Secretary was held to have “acted unreasonably and unlawfully in failing both to have regard to credible evidence that he was the victim of human trafficking and properly to apply her Allocation Policy. In consequence, TG was unlawfully accommodated at Wethersfield…”  

Mould J also found that the decision to accommodate TG there and leave him there for many weeks was discriminatory in breach of the Home Secretary’s duty to make reasonable adjustments in respect of disabled asylum seekers. The Judge found that “It was clearly foreseeable that, as a result, TG would suffer deterioration in his mental health as a result of being accommodated at Wethersfield”. Had the Home Secretary not overlooked serious indicators of trafficking and modern slavery she would have been able to anticipate that Wethersfield would present a “substantial risk of damaging his mental health” and taken steps to avoid that risk. 

In respect of MN, a victim of trafficking and torture, the Home Secretary also failed to apply her own policy in reviewing his suitability for the barracks after he provided cogent medical evidence of his deteriorating mental health. The Judge found no convincing evidence of the Home Secretary properly reviewing MN’s suitability, an illustration of an apparently lawful set of arrangements failing to operate in individual cases.

In respect of HAA, another victim of torture and trafficking, the Home Secretary again failed in her obligation to keep the suitability of the barracks under review, ignoring cogent available evidence of the adverse impact of such accommodation on HAA.

In respect of MJ, represented by a separate legal team, the claim was dismissed on all grounds. 

Allocation of accommodation policy – Public Sector Equality Duty

Mr Justice Mould found that the Home Secretary breached the Public Sector Equality Duty in formulating and implementing version 11 of the Allocation of Asylum Accommodation Policy by making “no attempt” to assess the equalities implications of that policy on asylum seekers who were disabled or had serious mental health issues, and particularly whether barracks accommodation was suitable for them. It was, the Judge held, “a most serious and inexplicable omission…It amounts to the clearest failure on the part of the defendant to fulfil the PSED…the only conclusion I am able to reach on the evidence is that the defendant did not attempt to assess the equalities impact of the proposed policy change.” 

Mr Justice Mould held that he could not be satisfied that Home Office ministers were “aware of the equality implications of the proposed change, let alone appreciate them sufficiently to be able to evaluate the equalities impacts of the change in policy when deciding to proceed with it”.

Mr Justice Mould found that the breach is a continuing one, “carried forward” into the current version (version 12) of the policy as the Home Secretary’s evidence to the Court was that no further equalities impact assessment was conducted before version 12 was implemented in March 2024. This remains the version of the policy currently in operation and the PSED breach therefore persists.

System for identifying asylum seekers unsuitable for Wethersfield

Considerable evidence was filed during the claims by the Claimants and NGOs working on the ground directly with vulnerable destitute asylum seekers accommodated at the barracks. The evidence was described by Mould J as “candid and carefully given” and showed that vulnerable individuals had been accommodated at Wethersfield in breach of the suitability criteria. The Defendant’s own evidence showed that approximately 236 individuals were moved in response to pre-action letters. The Defendant’s own commissioned independent reports from the British Red Cross and MTC also revealed that staff were untrained in safeguarding, and that the British Red Cross found “a prevailing culture of degradation and disbelief” in the barracks, when it conducted the investigation for the Home Office in February and March 2024. 

However, the Judge proceeded on the basis of the situation as at the date of the hearing in July 2024. On that approach, the Judge decided that his “approach must be to accept” the “defendant’s witnesses’ account of conditions and the actual operation of asylum accommodation in Wethersfield” as correct, unless he was persuaded this evidence was “internally contradictory or inherently implausible” or there existed “incontrovertible” evidence to the contrary. His finding that the system was “capable of” operating lawfully was based solely on written evidence filed on behalf of the Home Secretary in May 2024 about the system as operated then. 

Mr Justice Mould did observe, in the light of the Claimants’ evidence, that “it would be idle to deny that there is force in the criticisms made by and on behalf of the claimants of the adequacy of the current arrangements for monitoring the suitability of asylum seekers to continue to be accommodated at Wethersfield. The fact that the defendant’s witnesses acknowledge the need for improvements in staff training is of particular concern, as are the observations made by the MTC Report about the pressure on welfare staff at the site.”

The terms of the final order and consequential matters have been adjourned for further determination. 

Shu Shin and Sarah were instructed by:

Invaluable evidence in support of the claims was provided by Human for Rights Network, Care4Calais, Doctors of the World, Helen Bamber Foundation and RAMA. 

Press coverage includes: Independent

Further documents concerning the case can be found on Deighton Pierce Glynn website here.

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