QUEEN’S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN|
On the Application of
|- and -|
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT|
Mr Angus McCullough & Ms Shaheen Rahman (instructed by the Treasury Solicitor, Queen Anne’s Chambers, Broadway, London SW1H 9JS) for the Defendant
Hearing dates: 11th & 16th October 2002
Crown Copyright ©
Mr Justice Lightman:
“7. However, I do not consider that housing the Claimant in the International Hotel would amount to an interference with her family life. The Claimant is able to live with her husband, and her two sons (Petrit and Elvis) have the option of living in the same building. Petrit also has the option of living together with Carly, Amina and Liam in local authority accommodation in Leicester. The Claimant could continue to provide childcare to Amina and Liam, either by visiting them in their local authority accommodation with Carly or by arranging to have them stay with her during the day at the International Hotel. Similarly, the Claimant could visit Carly to provide her with cooking and washing support.
8. However, even if I did consider that housing the Claimant in the International Hotel amounted to interference with her family life, I am satisfied that any such interference would be minimal and, in any event, necessary and proportionate to the need of the Secretary of State to ensure the economic well-being of the country, inter alia by utilizing the ready and available supply of suitable accommodation for asylum seekers at the Leicester International Hotel before acquiring additional accommodation elsewhere in Leicester.”
“Your letter asked why it is considered necessary for the Hetoja family to be housed in NASS accommodation at the International Hotel in Leicester rather than at their present accommodation at 23 Barbara Road, Leicester.
NASS obtains accommodation through accommodation suppliers rather than by way of contracts with individual landlords. Through these suppliers, NASS has obtained a ready and available supply of accommodation at the Leicester International Hotel, which given the Hetoja family’s particular circumstances is appropriate in this case. NASS does not, on the other hand, own the accommodation at 23 Barbara Road. To secure 23 Barbara Road as NASS accommodation when an existing supply of accommodation has already been secured elsewhere in the same dispersal area would put NASS to further additional and unnecessary costs.
NASS considers that it is important that it fills vacancies in its existing accommodation before seeking to acquire further accommodation. In short, to take on the Hetoja’s current address as NASS accommodation would be a waste of public funds.”
RELEVANT LEGISLATION AND GUIDANCE
“Provision of support
95 Persons for whom support may be provided
(1) The Secretary of State may provide, or arrange for the provision of, support for—
(a) asylum-seekers, or
(b) dependants of asylum-seekers,
who appear to the Secretary of State to be destitute or to be likely to become destitute within such period as may be prescribed.
(2) In prescribed circumstances, a person who would otherwise fall within subsection (1) is excluded.
(3) For the purposes of this section, a person is destitute if—
(a) he does not have adequate accommodation or any means of obtaining it (whether or not his other essential living needs are met);
(b) he has adequate accommodation or the means of obtaining it, but cannot meet his other essential living needs.
(5) In determining, for the purposes of this section, whether a person’s accommodation is adequate, the Secretary of State—
(b) may not have regard to such matters as may be prescribed for the purposes of this paragraph or to any of the matters mentioned in subsection (6).
(6) Those matters are—
(d) the location of the accommodation.”
“96 Ways in which support may be provided
(1) Support may be provided under section 95—
(a) by providing accommodation appearing to the Secretary of State to be adequate for the needs of the supported person and his dependants (if any);
(3) Unless the circumstances of a particular case are exceptional, support provided by the Secretary of State under subsection (1)(a) or (b) or (2) must not be wholly or mainly by way of payments made (by whatever means) to the supported person or to his dependants (if any).
(4) But the Secretary of State may by order provide for subsection (3) not to apply— ...
(1) When exercising his power under section 95 to provide accommodation, the Secretary of State must have regard to—
(a) the fact that the accommodation is to be temporary pending determination of the asylum-seeker’s claim;
(b) the desirability, in general, of providing accommodation in areas in which there is a ready supply of accommodation; and
(c) such other matters (if any) as may be prescribed.
(2) But he may not have regard to—
(a) any preference that the supported person or his dependants (if any) may have as to the locality in which the accommodation is to be provided; or
(b) such other matters (if any) as may be prescribed.
(3) The Secretary of State may by order repeal all or any of the following—
(c) subsection (2)(a).
(4) When exercising his power under section 95 to provide essential living needs, the Secretary of State—
(a) must have regard to such matters as may be prescribed for the purposes of this paragraph; but
(b) may not have regard to such other matters as may be prescribed for the purposes of this paragraph.
(7) In determining how to provide, or arrange for the provision of, support under section 95, the Secretary of State may disregard any preference which the supported person or his dependants (if any) may have as to the way in which the support is to be given.”
“(a) [the claimant’s] personal preference as to the nature of the accommodation to be provided; and
(b) [the claimant’s] personal preference as to the nature and standard of the fixture and fittings;
but this shall not prevent the person’s individual circumstances, as they relate to his accommodation needs, being taken into account.”
“Each application should be considered on its own merits. Careful consideration must be given to the individual circumstances of each case and when deciding whether it is reasonable to allocate dispersed accommodation particular attention should be given to the following:
“Many asylum seekers state that they wish to be allocated accommodation near, or with, relatives or friends. When considering such matters caseworkers should have regard to Article 8...”
CONSTRUCTION OF THE 1999 ACT AND REGULATION
“The Government do not intend that the Secretary of State should be able to take any account of the preference expressed by the asylum seeker about the location of accommodation, because that would be a recipe for constant judicial review and would cause arguments about the extent to which preferences must be taken into account.
It would be only a short step from allowing the Secretary of State to take account of asylum seekers’ preferences to a challenge that requires the Secretary of State to commission accommodation only in areas that reflect asylum seekers’ preferences. That would end up with them all being located in London.
The legal advice is very strong that we need to make it clear in the Bill that those preferences will not be taken into account. However, as I have said, circumstances could be taken into account, which is a different matter. The Government will be able to take into account the circumstances that asylum seekers find themselves in and make a decision based on them. We cannot take account of the preferences, but we can choose to take into account certain circumstances. That complies with our ECHR obligations.
The Government’s policy is based on moving asylum seekers and their dependants away from London and the south east, dispersing them to other parts of the country....
We shall not, therefore, take into account preferences, but, as I have said, we can take into account circumstances. For example, if an asylum seeker’s family or members of an ethnic group live in an area in which the necessary support is available, we would want to weigh carefully the value of placing the asylum seeker in that area. I cannot give an absolute guarantee that we will be able to do that in every case, but we want to create cluster areas....”
THE GROUNDS OF CHALLENGE
ARTICLE 8 CHALLENGE
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
ARTICLE 6 CHALLENGE
“(1) In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law ....”
COMMON LAW CHALLENGE