The Home Office acted unlawfully when accommodating a Nigerian asylum seeker and her young children in a studio flat for about 14 months, the High Court has found. The judgment in R (O) v Secretary of State for the Home Department  EWHC 2734 (Admin) found that the department failed to act in the best interests of the children and had also failed to reconsider the issue of affordability/costs constraints, which appeared to be the only barrier to the family being offered suitable accommodation.
Autistic child housed in unsuitable studio apartment
The family had previously been accommodated in a two-bedroom property in Lewisham by the local authority, pursuant to section 17 of the Children Act 1989. After the claim for asylum, the claimant and her children — two year old “L” and five year old “M” — became eligible for asylum support from the Home Office under section 95 of the Immigration and Asylum Act 1999.
M is autistic. He has challenging behaviours including limited safety awareness, “pica” behaviour (trying to eat or chew non-edible things), global developmental delay, no sense of danger and physical aggression. He needs constant adult supervision as well as his own space to recover when he is in distress. L had his sleep disrupted by his sibling and M was also physically aggressive towards him. The cooker was in close proximity as were non-edible, sometimes dangerous items, for example in the kitchen.
Not only was the studio flat itself unsuitable, but there was a risk that if the family were moved out of Lambeth, as the Home Office had suggested, M’s specialist education would be disrupted.
The Home Office agreed that the studio flat was unsuitable for M’s needs. In July, it expressly accepted that a two-bedroom flat in Lambeth should be found for the family.
The department asked its private contractor, Clear Springs, to find such accommodation. The court had no evidence from Clear Springs on the steps it had taken. There were no reasons given as to why a two-bedroom flat in Lambeth could not be found apart from the broad justification of “affordability”. The affordability criteria were not available.
Unlawful failure to reconsider affordability
This formed the basis for deputy High Court judge Mathew Gullick’s finding that the Home Office had acted unlawfully:
the Defendant’s failure even to address what may well be the only barrier to such a property being provided – namely, the continued application of her affordability criteria to the property search – is now an unreasonable failure in the particular circumstances of this case and is unlawful.
In reaching this decision the judge took into account:
- the length of time in the studio flat (14 months)
- that the Home Office had been on notice of the safety issues for nearly a year
- that the Home Office had accepted from 11 July 2019 that a two-bedroom flat, in Lambeth, was required
- that officials knew Clear Springs’s efforts had been unsuccessful, and that this was down to affordability
- that for about three months now a two-bedroom flat has not been identified because of Home Office-imposed costs constraints (the details of which are unknown)
The judge relied on R (Chkharchkhalia) v Secretary of State for the Home Department  EWHC 2232 (Admin), in which it was found that “there will come a time where those affordability constraints will need to be relaxed to avoid a finding of unlawfulness”.
He also contrasted this case with R (A) v National Asylum Support Service  EWCA Civ 1473, where there had been a prospect of the accommodation being made suitable by way of adaptations to the property. Here, the unsuitability could not be remedied.
Best interests vs cost
Finally, the court found that there had been a failure by decision-makers to take into account the best interests of both children:
The Defendant has not, as I understand the position, ever considered whether, having regard to the best interests of either or both of the Claimant’s children, the affordability criteria which are the barrier to securing a two-bedroom property in Lambeth ought to be relaxed. Criteria of this sort are capable, in principle, of amounting to the sorts of countervailing considerations outweighing the best interests of children, to which the UK Supreme Court made reference in ZH (Tanzania). But in order for the decision-maker to reach such a conclusion, there must be a primary consideration of what is in the best interests of the children concerned and then a consideration of the strength of any countervailing factors, such as the affordability criteria. Such an exercise should, as set out in the Defendant’s own policy, have been conducted at the outset of the Claimant’s claim for accommodation in May 2018…
The judge did not go so far as to find that the provision of this studio flat to this family in and of itself was Wednesbury unreasonable. He left open the possibility that this studio flat could be suitable, subject to the Home Office undertaking the balancing exercise, weighing up the countervailing considerations and determining whether the affordability criteria should be relaxed.
Future asylum accommodation challenges
This decision is a useful guide for cases where accommodation provided by the Home Office may not be suitable where children or disabled people are involved. It will be important to scrutinise carefully the Home Office’s conduct in assessing the best interests of the child. The issue of affordability will not be a trump card: it may be useful to question the affordability criteria used, and how they have been applied in a particular case.