The High Court has rejected a challenge to the Secretary of State’s decision to shift a group of Afghan family rescued from the Taliban in 2021 from one temporary hotel to another temporary hotel. R(HZ) v Secretary of State for the Home Department [2023] EWHC 660 (Admin) left open the prospect that Afghan families who come to the UK under the various Afghan resettlement projects would be exposed to frequent movements around the UK with little warning.
The issue revolves around the “bridging housing” supplied to Afghan families after their arrival in the UK while they settled in and got ready to move into private sector housing. It was a significant commitment to make sure that those who had assisted the UK in Afghanistan did not arrive in the UK in a desperate state. In actuality, moving on to other accommodations has proven difficult for many families, and as a result, many continue to stay in the hotels given as bridging housing. The families have established roots in their communities in the interim by enrolling in school and finding employment.
The controversy centred on the Secretary of State’s choice to transfer families from one hotel to another in a different region of the UK, which would result in job losses for some families and a pause in the schooling of the kids. The families were worried that they would have to switch temporary housing frequently.
Sadly, Mr. Justice Henshaw came to the conclusion that the Secretary of State’s choice to transfer was legal:
In these circumstances, and on a fair reading of the decision letters, I consider that the Defendant did balance the Claimants’ reasons for remaining in London against the considerations that favoured offering replacement bridging accommodation away from London, and there is no reason to believe that was other than a genuine exercise.
In administering bridging accommodation under the resettlement scheme as a whole, the Defendant had to make provision for large numbers of individuals… The closure of the Southwark Hotel alone meant that new bridging accommodation had to be found for a significant number of people: the move required two coaches, five 16-seat taxis and five transit vans… The Defendant had to, or was at least entitled to, consider a broad range of considerations, including the migration pressure and cost factors referred to earlier, the prospects of scheme beneficiaries finding affordable permanent accommodation in due course in different areas, and the availability of education, work, health and other services. Education was thus one of a range of factors, albeit an important one. The scheme beneficiaries in bridging accommodation at the Southwark Hotel will have been in various different positions as regards education, health, employment and other matters. For example, as regards education, the Southwark School in October 2021 took in 22 secondary age students who were scheme beneficiaries, some in bridging accommodation at the Southwark Hotel and some in another hotel (which is still used for bridging accommodation). It is therefore likely that only a minority of the families in bridging accommodation at the Southwark Hotel included children attending the Southwark School. It is also relevant to recall that none of the scheme beneficiaries was obliged or required to move to one of the Manchester Hotels, though it is fair to add that practical constraints may have given them little real option at least in the short term.
In these circumstances, judgments had to be made about how detailed a level of enquiry should be made into the impact of a move on education and each of the other potentially relevant factors. It is true that more enquiries could have been made than the Defendant in fact made, but that is not the test… The Defendant was entitled to form a view about the appropriate level of enquiry in all the circumstances…In my judgment, a reasonable decision-maker could have settled on the nature and level of enquiries that the Defendant in fact undertook.
Concerningly, the judge also came to the conclusion that the “best interests” duty under section 55 of the Borders, Citizenship and Immigration Act 2009 for the provision of safeguards and welfare does not apply in this case because providing bridging housing to families is not an immigration-related function.
I consider the position in relation to asylum support, conceded in R(O) to fall within section 55(2)(a), to be distinguishable. As the Defendant points out, asylum support is intricately related to a pending asylum application. The duty under section 95 of the Immigration and Asylum Act 1999 is to provide support, including accommodation, to asylum seekers or dependants of asylum seekers who appear to the Secretary of State to be destitute or to be likely to become destitute. To qualify, the individual must require but lack leave to enter/remain in the UK, and must have an outstanding application for asylum. Thus the section 95 power to provide accommodation is directly parasitic upon the ongoing asylum decision-making process, even if it does continue for a period thereafter. Those who qualify for accommodation are subject to the exercise of other powers by the Secretary of State, for example the imposition of immigration bail conditions, which typically will include a residence condition. Hence the Secretary of State has the power to direct individuals to reside in the accommodation provided.96.
By contrast, the Claimants have been granted ILR and so have an unrestricted right to leave and enter the UK as well as to enjoy the benefits of settled status in the UK, including access to public funds. The Secretary of State has no outstanding role regarding their immigration status under the resettlement schemes. The Secretary of State has no power to impose bail conditions upon them, and no power to direct that any Claimant resides at a particular address. These distinctions, individually and cumulatively, mean that section 95 support relates to asylum (and immigration) in a significant way that does not apply to the support (over and above the grant of ILR) provided to individuals under the Afghan resettlement schemes.
Overall, the decision is unfortunate and would expose Afghan families who arrived in the UK through resettlement programmes to frequent hotel changes while they try to establish themselves there.
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Written by:
Tahir Shahab Khan
Managing Director