Secretary of State’s obligations to house failed asylum seekers during the pandemic

In R (Secretary of State for the Home Department) v First-tier Tribunal (Social Entitlement Chamber) [2021] EWHC 1690 (Admin) the Secretary of State successfully judicially reviewed the decision of the First-tier Tribunal that she was obliged, until step 4 on the Government’s roadmap out of lockdown, to provide accommodation to destitute failed asylum seekers under s.4(2) of the Immigration and Asylum Act 1999 in order to avoid a breach of Convention rights. This was said to be in the light of the risks posed by COVID-19 to the destitute, as well as the risk to members of the public of contracting COVID-19 from homeless destitute failed asylum-seekers.

In a decision handed down on 21 June 2021, the High Court (Chamberlain J) held that the Secretary of State did not owe any such obligation, whether under Articles 2, 3 or 8 of the ECHR.

Chamberlain J concluded that the rights of the appellant (“AM”) under Articles 2, 3 or 8 did not require that he be accommodated, stating:

1. It was for the Government to decide how best to protect destitute asylum-seekers from the various threats to their life and health to which homelessness gives rise (including COVID-19).
2. Formulating policy in relation to the accommodation of failed asylum-seekers required the weighing of competing policy considerations and the making of predictive judgments about the consequences of particular measures, and there were strong constitutional reasons for according the executive a broad discretionary area of judgment when performing these functions.
3. There was a legislative choice to discharge any positive protective duty by accommodating destitute failed asylum-seekers on condition that they take reasonable steps to leave the UK. That, in the Court’s view, was a legitimate policy, at least where the failed asylum-seeker was in a position freely to return home, and this fell well within the Secretary of State’s discretionary area of judgment.
4. In the absence of any explanation as to why AM was not in a position to return home, the Secretary of State was entitled to regard the offer of accommodation conditional on taking steps to leave the UK as a reasonable discharge of any positive obligation under Articles 2, 3 or 8 to protect him from risks to his life and health.

Nor did the rights of the general public under Articles 2, 3 and 8 provide a basis for imposing a duty to accommodate AM and others like him. Following a careful analysis of the case law, Chamberlain J concluded that Articles 2, 3 and 8 have rarely been held to impose specific obligations owed to the public at large. Even if Articles 2, 3 and/or 8 impose on states a general obligation to take reasonable steps to protect their populations from the risks associated with the COVID-19 pandemic, the state was to be afforded a broad discretionary area of judgment given the difficult policy choices that needed to be made.

The High Court’s judgment is available here.

Hafsah Masood was junior counsel for the Secretary of State.