England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		24th October 2002

Mr Justice Lightman:

INTRODUCTION

1. Sections 95, 96 and 97 of the Immigration and Asylum Act 1999 (“the 1999 Act”) require the Secretary of State, the defendant on this application, to provide temporary accommodation for destitute asylum seekers and their dependants pending the final determination of their claims to remain here. In performance or purported performance of that duty the Secretary of State has provided for the claimant Drita Hetoja (“the Claimant”), her husband and their adult son Elvis accommodation at the International Hotel, Leicester (“the Hotel”). By this application for judicial review the Claimant challenges the validity of the decision of the Secretary of State to provide accommodation at the Hotel on the ground that it is inadequate. The heart of the complaint is that the statutory regime created by the 1999 Act and the regulations made thereunder, the Asylum Support Regulations 2000 (“the Regulations”), require the Secretary of State to ignore the Claimant’s preference as to the location and type of accommodation provided by the Secretary of State. The Claimant maintains that these two aspects of the regime are legally objectionable under Article 6 (“Article 6”) and Article 8 (“Article 8”) of the European Convention on Human Rights (“the Convention”) and that the decision of the Secretary of State is likewise objectionable and that the decision is also open to objection on common law principles of irrationality and lack of proportionality.

HISTORY

2. The Claimant (who is now aged 44), her husband Tahir (who is now aged 48) and their three children Petrit (who is aged 26), Artur (who is aged 22) and Elvis (who is aged almost 19) all came to this country from Kosovo in September 1998, settled in Leicester and applied for asylum. They are all lawfully in the United Kingdom until all outstanding applications to remain here are finally determined. No question arises in this case relating to Artur who lives in Bedford. I shall for convenience refer to the other members of the family together as “the Family”. The asylum applications of the Claimant, her husband and Elvis (made using the same solicitor) were refused and appeals from those refusals were dismissed. Following those refusals on the 25th June 2001 the Claimant made further submissions under Article 3 of the Convention to the Secretary of State who rejected them. An appeal to an adjudicator against that rejection was due to be heard on Monday the 14th October 2002, but no adjudicator proved to be available. The hearing will now take place on the 20^th November 2002. Petrit instructed his own solicitors to pursue his application for asylum. The present state of his application is not disclosed in the evidence.
3. Whilst Petrit was living in Leicester he commenced a long-term relationship with a British citizen, Carly. Of this relationship two children have been born, Liam on the 13th February 2001 and Amina on the 10th July 2002. To date the Family, Carly, Liam and Amina have lived together in the same accommodation as an extended family.
4. Pending the outcome of the Claimant’s application for asylum, the local authority was legally responsible for providing and provided the Family with accommodation. On dismissal of the appeals and pending the decision of the adjudicator on the claim under Article 3 the responsibility has passed to the Secretary of State. The task of discharging this responsibility on behalf of the Secretary of State has been delegated to the National Asylum Support Service (“NASS”). On the 3rd December 2001 the Claimant applied to NASS on behalf of herself and her husband for accommodation and subsistence. NASS in or about early January 2002 provided short term emergency accommodation at a property owned by a voluntary body called Refugee Action, namely 23 Barbara Road Leicester (“Barbara Road”). On the 18th January 2002 Elvis and Petrit made a like application to NASS. When the Claimant obtained the emergency accommodation at Barbara Road, Elvis and Petrit moved in with their parents.
5. The Claimant considered that the short term emergency accommodation at Barbara Road was inadequate and shortly before the 18th December 2001 the Claimant, her husband, Petrit and Elvis applied to NASS using the NASS standard forms seeking on this ground to be moved to other accommodation in Leicester. Section 11 of the application form required the Claimant to state any relevant medical condition and section 12 required the applicants to state any other information beyond that provided earlier in the application form which the applicants felt that NASS should take into account. Under section 11 the Claimant stated nothing relating to herself and under section 12 she stated that she had lived in Leicester for two years, that she had children and other close relatives in Leicester and that she wanted to be given accommodation in Leicester; and she asked that her application be linked with that of Petrit and Elvis. On the 23rd January 2002, the Home Office wrote to the Claimant stating that, in place of Barbara Road, accommodation had been reserved for her at 6 Bellway, Barnsley. On the 28th January 2002 the Claimant made representations to the Secretary of State why she and her husband should not be dispersed to Barnsley and thus separated from the rest of their family, and on the 30th January 2002 the Claimant issued these proceedings challenging that decision. In support of the application the Claimant obtained an expert report from a Dr Wohl who expressed the opinion that damage would be caused to the family (and in particular Liam and Amina) if the Claimant moved to Barnsley and was thereby separated from Carly, Liam.
6. On the 7th February 2002 the Secretary of State filed an Acknowledgement of Service. On the 8th February 2002, NASS informed the Claimant that the decision to disperse her to Barnsley was withdrawn (it was plainly flawed) and in its place she, her husband and Elvis were allocated accommodation at the Hotel. NASS also offered free accommodation at the Hotel to Petrit. The 1999 Act did not make provision for any offer of accommodation to Carly and accordingly none was provided. On the 8th February 2002 the Claimant made representations to the Treasury Solicitor why the Hotel was unsuitable. The Secretary of State did not accede to these representations and at an adjourned hearing on the 14th February 2002 Maurice Kay J gave permission to amend the application to challenge the decision to disperse the Claimant to the Hotel and adjourned the application for permission to give the Secretary of State time to submit further representations with respect to that decision. On the 25th February 2002, Forbes J gave permission to challenge the decision. The hearing before me took place on the 11th October 2002 and was then adjourned until the 16th October 2002 when the hearing was completed.

FACTS

7. Carly comes from Leicester. She has been “cut off” by her family because of their disapproval of her relationship with Petrit. Petrit and Carly were to have married on the 5th October 2002. The marriage was postponed but has now taken place. Some four months ago the local authority offered Carly a house at 42 Bramall Road Leicester. Carly and Petrit are in the course of decorating it and when this is completed they will move in. I have been given no details about this accommodation and, though I remarked during the hearing on its absence and though plainly this information has been available to the Claimant and her adviser, it has not been forthcoming. All I know is that it is within two miles of the Hotel, and a £2 bus fare (a substantial portion of the Claimant’s £10 per week spending allowance from the NASS) or a 30 minute walk away. There is no evidence and there has never been any suggestion in the completed NASS form or otherwise that the Claimant cannot manage this walk.
8. Carly had a troubled upbringing. She is still disturbed and has difficulty looking after Liam and (inferentially) Amina. The Claimant has assumed primary responsibility for looking after both her children. Carly is unable to cook to any extent and the Claimant cooks for all the family and this includes preparing the food for Liam and Amina and feeding Amina. She cleans the house, washes the childrens’ and Carly’s clothing and tends to do the shopping for the childrens’ clothing and toys. She has a close relationship with both grandchildren. She puts Liam to bed: he sleeps in her bed and cannot sleep without her. Carly and Petrit do not want to take the children with them to their new home immediately, but want them to say with the Claimant where they believe that they will be better looked after.
9. By reason of her role in the Family and her close relationship with all concerned, the Claimant does not want to move to the Hotel leaving Petrit, Carly and the grandchildren, and Carly and Petrit do not want the grandchildren to be separated from her.
10. The Hotel is a privately run hostel providing single and double sleeping accommodation and full board. The Hotel is not suitable accommodation for a family. The proposed arrangement is that the Claimant and her husband will share a double room and Elvis will have a single room. Visitors (including children) are allowed until 11 pm. Children cannot be accommodated at the Hotel because the Hotel staff have not been screened by the police as required if children are resident. Communal areas of the Hotel can be used for receiving children, but there are no specific child care facilities. On the second day of this hearing Mr Wise, Counsel for the Claimant, produced a statement from a Ms Sara Hill disparaging the Hotel and the neighbourhood. The Secretary of State had no opportunity to consider or deal with this evidence and (more importantly) it was never placed before the Secretary of State when he made or reconsidered his decision under challenge in this case. This statement may no doubt be submitted on an application to the Secretary of State to reconsider his decision, but it cannot be relied on at this hearing.
11. The thrust of this application is that the decision to accommodate the Claimant at the Hotel is damaging to the Family and most particularly the grandchildren as it involves the separation of the Claimant from Carly, Liam and Amina and the loss of support to Carly in the care of Liam and Amina. Mr Wise concedes that for this purpose he can not rely on the report of Dr Wohl, for the proposed separation which she addressed in her report was that involved in providing accommodation for the Claimant in Barnsley and not merely accommodation less than two miles apart in the same city. The Claimant wishes, in preference to accommodation at the Hotel, to stay at Barbara Road. Refugee Action will continue to make that accommodation available so long as NASS pays for it.
12. The Secretary of State maintains that accommodation at the Hotel is adequate and appropriate having regard to the Claimant’s circumstances. Ms Donna Woodward, the Post Allocation Senior Case worker within NASS in her second witness statement explained the decision taken by NASS:

“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.”

13. By letter dated the 22nd April 2002 in response to a letter dated the 15th April 2002 from the Claimant’s solicitors, the Treasury Solicitor explained further why the Claimant was being rehoused:

“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

14. Part VI of the 1999 Act deals with support for destitute asylum seekers and their dependants. The term “dependant” is defined in section 94(1). For present purposes it is sufficient to say that it is confined to spouses and children under 18 years of age. Section 95 lays down the criteria to be applied in determining whether an asylum seeker is destitute:

“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.”

15. The Claimant complains that section 95(6)(d) precludes regard to the location of accommodation in the determination by the Secretary of State of appropriate accommodation. The section has no such effect. It is relevant only to the determination whether an asylum seeker is destitute. It has no application or relevance in the choice by the Secretary of State of appropriate accommodation for a person who satisfies the criteria of a destitute asylum seeker. The provisions of section 95 may however have some relevance when construing sections 96 and 97.
16. Provisions relevant to the adequacy of accommodation are to be found in Sections 96 and 97 which (so far as material) read as follows:

“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— ...

97 Supplemental

(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.”

17. Section 116 of the 1996 Act disapplies community care services under section 21 of the National Assistance Act 1948 in respect of asylum seekers without benefits who are destitute or who are suffering from the effects of destitution: the statutory intent appears to be to replace provision for such persons by the provisions cited of the 1999 Act. The effect of this is to shift the burden from the local to the central government. Section 103 of the 1999 Act restricts appeal rights to the Asylum Support Adjudicator in respect of decisions by the Secretary of State on applications for support under section 95 of the 1999 Act to decisions that the applicant does not qualify for support. No appeal accordingly lies where some support is offered but there is a dispute regarding its appropriateness.
18. The 2000 Regulations made pursuant to section 97(2)(b) of the Act, in Regulation 13(a) provide that when making provision pursuant to section 95 of the 1999 Act the Secretary of State may not have regard to—

“(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.”

19. Regulation 3(3) requires any applicant for asylum support to use the standard application form which is annexed as a Schedule to the Regulations. This form is such as to enable the applicant to state all circumstances relevant to the applicant’s accommodation needs. As I have already stated the Claimant’s application to NASS was in this standard form.
20. NASS have issued Policy Bulletin 31 providing guidance in the allocation of accommodation. Guideline 2.3 provides that, if an applicant makes an application for accommodation in a dispersal area (i.e. one which is outside London and the South east) and requests to remain in that area, then, subject to the availability of accommodation, the applicant should be allocated accommodation in the area in which they applied. (It was the failure to comply with this guideline that vitiated the decision to transfer the Claimant to Barnsley). Guideline 2.6 provides as follows:

“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:

...

Family ties.”

21. Guideline 5.1 reads as follows:

“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

22. At the crux of the Claimant’s case is the complaint that upon the true construction of section 97(2)(a) and Regulation 13(a) the Secretary of State is precluded from taking into account critical elements for a decision compliant with Article 6 and Article 8, namely the Claimant’s preference as to locality of the accommodation and the Claimant’s preference as to the nature of the accommodation.
23. The complaint raises two questions. The first is the construction of the words “may not” in section 97(2) and Regulation 13(a) and in particular whether the words are mandatory, meaning “must not”, or permissive, meaning “need not”. The word “may” is susceptible of meaning either: the actual meaning must turn on the context. The draftsman has given indications both ways. In favour of the permissive meaning, it is to be noted that in section 96(3) where the imperative is intended he uses the formula “must not”. On the other hand in section 101(7), where a mandatory meaning is clearly intended, he uses the formula “may not”. In the context of sections 95-7, the contrast is drawn between considerations which “must” be taken into account and considerations which “may not”. In that context, it is reasonably clear that “may not” is intended to mean “must not”. Support for this view may be found in section 97(7). For in that subsection, where the Secretary of State is intended to be entitled to have regard to or to disregard a consideration, this is expressly spelt out. The words “may not” in Regulation 13(a) likewise are mandatory. This is confirmed by the formula of words following, namely “but this shall not prevent”: nothing in Regulation 13(a) could “prevent” account being taken of a factor unless “may not” meant “must not”. I therefore take the view that the sections and Regulation impose a mandatory obligation to disregard the factors in question. In case any doubt would otherwise exist, that doubt is removed by reference to a statement on the 4th May 1999 by Mr Mike O’Brien, the Home Minister responsible for immigration, to the Special Standing Committee on the Immigration and Asylum Bill explaining and defending the provision in that Bill which is now section 97(2)(a):

“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....”

24. But the language used does sufficiently admit of a construction conferring a discretion that, if such a construction is necessary to avoid an interference with human rights protected by Article 6 or Article 8, then it is possible to comply with the duty placed on the court by section 3 of the Human Rights Act 1998 to adopt a construction compliant with Convention rights by adopting that construction: see R v. A (No 2) [2002] 1 AC 45 at pp.67-8 per Lord Steyn. If this construction requires to be adopted however, the decision of the Secretary of State in this case must be open to challenge on the ground that he has not taken into account relevant considerations, namely the Claimant’s preferences.
25. The second question relates to the ambit of the constraint imposed by the section and Regulation on the Secretary of State. In my view that constraint is limited. Whilst the Secretary of State must not take into account the Claimant’s preference as to locality and the nature of the accommodation, the Secretary of State is obliged to provide adequate accommodation and in so doing to take into account (amongst other factors) the individual circumstances of the applicant as they relate to his accommodation needs (including family ties). While regard may not be had to preferences, regard may be had to the factors underlying those preferences.

THE GROUNDS OF CHALLENGE

26. The Claimant’s challenge to the decision is made on three grounds, namely breach of Article 8, breach of Article 6 and irrationality. I shall consider each in turn.

ARTICLE 8 CHALLENGE

27. Article 8 reads as follows:

“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.”

28. Article 8 enjoins (amongst other things) respect for private and family life and home, and this includes physical and psychological integrity: see e.g. Botta v Italy (1998) 26 EHRR 241 at paragraph 32. The 1999 Act confers on the Claimant as a destitute asylum seeker the right to temporary accommodation pending final determination of her claim to remain here. Once her claim is determined, the responsibility of the Secretary of State is at an end: either she establishes a right to remain, in which case responsibility passes to the local authority, or she fails and she must leave the country. The role of the Secretary of State during the limited intervening period is to provide what appears to him to be accommodation adequate for the needs of the Claimant and the Claimant’s dependants. Whilst the Secretary of State must not have regards to the claimant’s preference as to locality or the nature of the accommodation, he must have regard to the Claimant’s individual circumstances as they relate to her accommodation needs and family ties. The first question raised is whether Article 8 requires the Secretary of State to go further and have regard to the claimant’s preference regarding locality and the nature of the accommodation.
29. I proceed in this judgment on the basis that Article 8 requires the Secretary of State to provide the Claimant as a destitute asylum seeker with adequate accommodation. The question raised is whether it requires the Secretary of State in deciding what is adequate to go beyond giving the Claimant the opportunity to state both her individual circumstances as they relate to her accommodation needs and her family ties (as he has done in providing for completion of the NASS form) and taking those considerations into account, and requires him to take into account the Claimant’s preferences. Mr Wise could find no support for such a proposition. The best he could do was to cite authority for the proposition that Article 8 requires the views of parents of a child in the care of the local authority to be taken into account in decisions by local authority relating to that child and in particular access: see W v. United Kingdom (1987) 10 EHRR 29. That proposition has no bearing on the matter in issue. As it seems to me the right to adequate accommodation nowise includes or requires for its full and effective enjoyment regard to the Claimant’s preferences in the two regards in question.
30. The Claimant goes on to challenge the decision to provide free accommodation at the Hotel as interfering with her rights under Article 8. In this regard the Claimant relies on the interference which will be occasioned to the existing arrangements under which the Claimant has such an important role in the life of Carly and the lives and upbringing of the grandchildren.
31. The relevant facts are that (1): the Secretary of State is providing to the Claimant, her husband and Elvis free accommodation; (2) the accommodation required is temporary pending the decision of the adjudicator; (3) the Secretary of State has no responsibility for providing accommodation for Carly and the grandchildren; (4) the local authority has provided accommodation for Carly, Petrit and the grandchildren; (5) the short (walking) distance between that accommodation and the Hotel in nowise precludes the Claimant from visiting for as long or short periods as she wishes to assist and maintain her relationship and on the evidence (or lack of evidence) I see no reason why she will not be able to stay overnight for periods with Carly; (6) there is no evidence that the proposed arrangement will compromise the Claimant’s (or anyone else’s) physical or psychological integrity; (7) (as the evidence fully establishes) in making the decision the Secretary of State had in mind the Claimant’s individual circumstances, family ties, the interests of the grandchildren and maintenance of the continuing supportive relationship of the Claimant with them and Carly.
32. Against this background, I am quite satisfied that the decision of the Secretary of State involved no interference with the Claimant’s rights under Article 8(1). In short the provision of accommodation at the Hotel, far from actively interfering with the Claimant’s private life, enhances it by the provision of accommodation where otherwise there would be none. The provision of the temporary accommodation cannot reasonably be seen as a failure to take positive steps to protect the Claimant’s private life. If contrary to my view there is any interference it is minimal and justified under Article 8(2). The interference served a legitimate aim, namely the economic well-being of this country; it is in accordance with law; and the minimal interference is proportionate to the legitimate aim.

ARTICLE 6 CHALLENGE

33. Article 6 reads as follows:

“(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 ....”

34. The Claimant argues that the provisions of Article 6 have been infringed because she has not been afforded the fair and public hearing by an independent and impartial tribunal to which she is entitled in the determination of her “civil right” to adequate accommodation.
35. The 1999 Act affords an applicant a right of appeal to an independent adjudicator against a determination that the applicant is not entitled to asylum support, but no such right against a determination of what constitutes adequate accommodation. A challenge against such a determination only lies for some substantive or procedural legal error by way of judicial review.
36. The judgment of Laws LJ in Begum v. Tower Hamlets LBC [2002] 1 WLR 249 supports the contention of the Claimant that the right of the Claimant as a destitute asylum seeker to adequate accommodation is a civil right and that the fact finding decision of the Secretary of State on that issue does not comply with the requirements of independence and impartiality required by Article 6(1). It is for that reason that the 1999 Act provides for an appeal on that issue to an adjudicator who can resolve issues of primary fact, a process designed to satisfy that requirement. The position is however different in respect of a decision by the Secretary of State on what accommodation adequate to her needs should be allocated to the Claimant to satisfy her entitlement and in particular its locality and nature. That requires the exercise of judgment and discretion rather than fact finding and involves consideration of the availability of resources in the various parts of the country and the demands upon it. It is what is termed a policy decision.
37. A challenge to the decision of the Secretary of State in respect of his determination as to what accommodation is to be allocated does not, or will not ordinarily (and certainly does not in this case), raise issues of primary fact. The issue is whether the Secretary of State in the exercise of his judgment or application of his discretion erred in law. Where that is the issue, and that is the issue in this case, this court on the hearing of this application for judicial review has the necessary full jurisdiction to determine the issues raised before it, and accordingly in respect of the decision of the Secretary of State in this case to allocate accommodation at the Hotel the requirements of Article 6 are fully satisfied.

COMMON LAW CHALLENGE

38. As his third and final basis of challenge Mr Wise argues that the decision to allocate accommodation at the Hotel is irrational, unreasonable and/or disproportionate. This challenge is hopeless for the reasons given in rejecting the other grounds of challenge. The Secretary of State has taken into account all the relevant circumstances to which he was statutorily entitled to have regard and reached a decision which has regard to the individual circumstances of the Claimant and the needs of Carly and the grandchildren and which properly brings into the balance (as he is entitled to) the resources available to him and the demands on those resources. The decision enables family ties to be preserved and the Claimant to continue to fulfil her role in the lives of Carly and the grandchildren whilst saving unnecessary expenditure of resources. The decision is fair and sensible, and more importantly beyond challenge.

CONCLUSION

39. I accordingly dismiss this application.