Home Office’s failure to collect and monitor data on asylum accommodation for pregnant and new mothers held to be unlawful

The High Court’s decision in DXK v Secretary of State for the Home Department [2024] EWHC 579 (Admin) is a welcome addition to the growing body of case law concerning the ambit and application of asylum support duties. The Court’s findings on academic claims, standing, systemic challenges, and the public sector equality duty (“PSED”) will be of wider practical application in other public law contexts.

DXK

DXK originally brought an individual challenge to the SSHD’s failure to provide adequate asylum accommodation under s.4(2) of the Immigration and Asylum Act 1999 (“the IAA 1999”), and a systemic challenge to the failure to have in place a lawful system for the allocation of dispersal accommodation to pregnant and new mothers (“PNMAS”).

By the time it eventually came to trial, the individual challenge had become “academic” as DXK had been moved into adequate dispersal accommodation following 105 days in interim accommodation. The challenge to the system as it applies to PNMAS as a wider group was reformulated as follows:

• The ‘systemic grounds’: arguing systemic breaches of the s.4(2) and s.95 duties to provide “adequate accommodation” under the IAA 1999; breaches of Article 3, 8 and 14 ECHR and s.6 of the Human Rights Act 1998 (“HRA”); and indirect discrimination under s.19 of the Equality Act 2010 (“EA 2010”).

• The ‘due regard’ grounds: arguing breach of the duty to have regard to children’s welfare under s.55 of the Borders and Citizenship and Immigration Act 2009 (“BCIA”); and breach of the PSED in s.149 of the EA 2010.

Common to all of the grounds was the claim that the SSHD had unlawfully failed to collect and monitor relevant statistical data on the allocation of dispersal accommodation to PNMAS, which was necessary to ensure the discharge of his duties to this vulnerable group ([6]).

The Decision

Paul Bowen KC (sitting as a Deputy High Court Judge) dismissed all of the systemic grounds as academic. The Court also dismissed the ECHR/HRA and indirect discrimination/EA 2010 grounds for lack of standing ([8], [105-110], [118]-[122]).

Conversely, the due regard grounds could be substantively determined. The Court found that the absence of statistical data monitoring of PNMAS constituted a breach of the PSED ([144]-[158]).

There was, however, no separate breach of s.55 BCIA. Regard for the best interests of children was adequately reflected in the Home Office’s policy and contractual documents with asylum accommodation contractors. DXK had also not shown why the need for statistical data monitoring was necessary to discharge the s.55 duty ([166]-[168]).

Given the SSHD’s continuing failure to comply with the declarations made in DMA v SSHD [2020] EWHC 3416, the Court made a mandatory order requiring the SSHD to introduce a system of statistical data monitoring with certain minimum requirements “as soon as it is reasonably practicable” ([174]-[175]).

Increased risk of dispersal delays

Although the SSHD argued that the dispersal delays were the consequence of the Covid-19 pandemic and the unprecedented rise in asylum support applications, the Court found that the SSHD was responsible for a number of factors which had contributed to the delays:

1. There were no contractual enforcement mechanisms to ensure contractors notified the Home Office of dispersal failures in individual cases, and no means by which the SSHD could ensure discharge of his statutory duty ([28]).
2. Accommodation contractors were only obliged to provide dispersal accommodation up to an agreed contractual volume cap ([29]).
3. The relevant contractual performance standard for dispersals was 98%. In 2% of cases, therefore, contractors could fail to comply with dispersal timescales without penalty ([30]).
4. The SSHD’s “light touch” approach to enforcement meant contractors were not incentivised to meet their contractual obligations ([31]).
5. After the first Covid-19 lockdown, the SSHD had changed policy so that there was no deadline or means by which vulnerable persons, including PNMAS, were prioritised for consideration for dispersal ([32]).
6. Contractors were paid a fixed amount per accommodated individual, regardless of the cost in that individual’s case. This made vulnerable groups such as PNMAS at risk of being disproportionately affected by the delays. There was no additional contractual or financial incentive to prioritise vulnerable persons ([33]-[34]).
7. The SSHD had failed to implement a statistical data monitoring system to know how vulnerable persons were being affected by delays or whether he was discharging his duties ([35]).

Systemic challenges

The Court provided a useful overview of the correct approach to “systemic challenges”, including the distinction between the ‘UNISON’/‘Munjaz’ and ‘Gillick’ principles ([83]-[88]).

Although the Court had identified several factors increasing the risk of delays (outlined above), some of this delay was also due to the system being complex and difficult to administer in circumstances of exponentially high demand. The latter failures could not be the subject of a systemic legal challenge. The Court therefore found it was “not immediately clear how the Gillick principle is to be applied where a range of systemic factors that are challengeable and other factors that are unchallengeable combine in such a way” ([94]).

In any event, DXK’s systemic grounds were academic and there were no exceptional reasons to decide them as they raised fact-sensitive issues that should not be resolved without a firm factual foundation ([92]). The Court, however, emphasised that this did not prevent suitable cases from being brought in future ([101]).

PSED and the need for ‘equality evidence’

The Court highlighted non-statutory guidance from the Equality and Human Rights Commission that equality evidence, including “hard statistical data”, is at“the root of effective compliance with the general equality duty” (paras 5.17, 5.22). This guidance was a mandatory relevant consideration, and the SSHD’s failure to take it into account – without good reason – was itself evidence of a breach of s.149 ([154(i)]).

While this does not mean that statistical data must always be collected in order to discharge the PSED, in all cases, public authorities must consider what equality evidence they need to collect. In some cases “hard statistical data” will be required ([155]). Merely completing a Policy Equality Statement does not discharge this aspect of the s.149 duty ([156]).

Edward-Arash Abedian is a barrister at Landmark Chambers.