Asylum Seeker Accommodation: Litigating against (in)adequacy in the NASS

Those with knowledge of migrant rights know that the UK’s border does not end for asylum seekers once on UK territory. The level of support by the State is demarcated between nationals (UK/Irish) or eligible migrants (Settled Status EUSS, IDLR etc.), and ineligible migrants (NRPFs, Asylum Seekers, ‘failed’ asylum seekers). For this post, I focus on the accommodation offered to Asylum Seekers under s 95 of the Immigration and Asylum Act 1999 (‘IAA 1999’).

The duty on the Home Office under s 95 IAA 1999 is to provide ‘adequate’ accommodation – a lower requirement than ‘suitability’ in Part VII of the Housing Act 1996 (‘HA 1996’). The IAA 1999 provides that assignment of accommodation is generally made without considering:

• that it is shared with other asylum seekers;
• how long the accommodation will be available for; and
• the location of that accommodation.

Put simply, the legislative objective of s 95 support is generally to prevent the kind of inhumane treatment that would give rise to an Art 3 violation – it is an anti-destitution regime.

However, there are a range of response options for securing more specific types of accommodation. What follows is a brief guide to the main options. Before I go into this, I encourage that you interpret the use of ‘adequate’ in an ordinary sense – if accommodation is dire or unsafe there is likely recourse through a challenge under s 95, once the steps to complaining in the Guide to Asylum Accommodation are followed. Complaining alone helps build a statistical picture of asylum accommodation even if it can be ineffective is securing remedy

Adequacy for ‘Vulnerable’ Asylum Seekers

This a problematic example of the law structuring our argumentation. By definition in the 1951 Refugee Convention, a refugee (asylum seeker) is someone who is fleeing for ‘fear of being persecuted’. In my view, these people are already vulnerable. Alas, Parliament determined its own categories of ‘vulnerable’ asylum seekers, they are:

• Under 18s;
• The disabled (to be read widely) inc. mental impairments or psychological illness;
• The elderly (pension age or above);
• Pregnant people;
• A lone parent with a child (under 18 years);
• A person subjected to torture or serious form of psychological or physical violence. This includes sexual violence.

If one or more of these categories is relevant, then the discretion of the decision-maker assigning accommodation under s.95 is tempered. The discretion is widened in scope so that, the decision-maker can take account to supporting one of these vulnerabilities as far as it relates to accommodation. For instance, it is arguable that placing a victim of sexual violence in shared accommodation is an improper exercise of that discretion.

The Home Office’s Allocation of Accommodation Policy

This guidance is probably the most efficient method for making a legal argument that an asylum seeker should be allocated a particular kind of accommodation. Indeed, arguing the Home Office has failed to its own guidance, or instead followed ‘secret guidance’, has firmly emerged as an effective ground in a claim of judicial review in the last decade.

This guidance is particularly useful on the following:

1. Ensuring asylum seekers are sufficiently close to specialist/specific medical treatment, see p9;
2. Ensuring asylum seekers are close to any family networks they might have, see p10; and
3. Ensuring asylum seeks are able to practice their religion or belief at a specific place of worship, see p11.

Equality Act 2010

The High Court confirmed in DMA v. SSHD [2020] that the PSED, and other provisions of EA 2010, are alive to the discriminatory provision of accommodation under IAA 1999. Consequently, if an asylum seeker has a relevant protected characteristic (most likely disability), then it is incumbent on the Home Office to facilitate reasonable accommodation needs relating to a protected characteristic.

Where you need to careful with these arguments is that the causal link between the discriminatory treatment and protected characteristic is properly supported. That often means an expert report from someone with appropriate clinical qualification. A counsellor’s report for a particular need probably will not survive a permission hearing at the high court – a positive report from qualified and registered psychologist/psychiatrist is the expected standard.

Asylum Seekers with Dependent Children

S 122 of IAA 1999 and s 55 of the Borders, Citizenship and Immigration Act 2009 (‘BCIA 2009’) requires that the provision of accommodation must be discharged ‘having regard to the need to safeguard and promote the welfare of children’. S 17 of the Children Act 1989 contains similar obligations on Local Authorities, with the discretion to provide accommodation to a family unit for the purpose of safeguarding the welfare of children, where that child is assessed as ‘in need’. This statutory regime, along with Art 8, prevents the splitting up of families.

However, these duties of the Home Office and Local Authorities are mutually exclusive. Because of this, the legislative regime gives priority to the Home Office. In other words, there (in most cases) needs to be a failure of provision of Home Office accommodation before provision of Local Authority Accommodation arises.

Victims of Trafficking and Modern Slavery

Finally, those with either a Positive Reasonable Grounds (‘PRG’) (pending conclusive) or a Positive Conclusive Grounds (‘PCG’) decision that they are a victim of modern slavery also have an entitlement to enhanced accommodation support.

This support is detailed in the statutory guidance made under s 49 of the Modern Slavery Act 2015 (‘MSA 2015’). It leaves open the argument that certain types of accommodation are required to support recovery from the trauma of modern slavery and/or trafficking. However, where a person has an active asylum claim, the expectation is that this more specific accommodation would be provided under s 95 IAA 1999 through NASS.

This argument, is unfortunately, commonly available because of the absence of safe routes to claim asylum in the UK creates a dependency on traffickers. Those traffickers habitually coerce refugees into forced labour and subject them to physical, psychological and sexual harm.

Environmental Health

This can be deployed in favour of any asylum seeker facing inadequacy through a different statutory standard where they are living in a house of multiple occupancy (‘HMO’). The Housing Act 2004 (‘HA 2004’) obligates Local Authorities (‘LAs’) to regulate premises to protect the health and safety to occupants.

Category 1 hazards normally obligate the LA to inspect and can justify further action, these hazards need to go the occupier’s health or safety. If multiple hazards are present, the risk presented by them is cumulative. Consider things like no heating, damp/significant mould, overcrowding, drainage, leaks or electrical hazards. The failure of an LA to either make an inspection or take appropriate action is amenable to judicial review.

Take Action

If you know an asylum seeker, work for an NGO or Charity who supports asylum seekers and think there is a possible legal challenge to the accommodation or support they are offered – you can contact our Public Law experts on 0330 822 3451 to investigate a potential claim in judicial review.