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
		19/11/2015

David Casement QC :

1. The Claimant herein, Evan Githundi Gitere, is from Kenya and has made an application for asylum in the United Kingdom which has been extant since 22 August 2012. That application for asylum has not yet been finally determined however the fact that it remains extant is significant background to these proceedings. The Claimant's application for asylum is based upon his claim that he has been the victim of torture in Kenya and is in danger if he were to return. The Claimant has also claimed and adduced medical evidence to evidence that he suffers from depression, post-traumatic stress disorder and asthma. These proceedings are concerned with the nature and adequacy of the Claimant's accommodation pending determination of his asylum application.
2. The Claimant's then solicitors issued a Pre-Action Protocol Letter dated 25 September 2013 asserting that the accommodation to which the Claimant had been dispersed to in Plymouth was inadequate and inappropriate to the point of being injurious to the Claimant's health. In particular it was contended that:

i) the multi-occupancy accommodation was also used by smokers whose smoking habit adversely and seriously affected the Claimant's asthma;

ii) the accommodation in Plymouth was too far away from where the Claimant's severely disabled child lived which was Yeovil, Somerset. The Claimant's son suffers from autism and lives with the Claimant's estranged partner, herself a UK citizen.

3. In the response to the Pre-Action Protocol Letter, dated 3 October 2013, UK Visas and Immigration confirmed that the Claimant was a vulnerable person within the meaning of The Asylum Seekers (Reception Conditions) Regulations 2005 regulation 4 because he suffers from asthma which is aggravated by smoking inhalation. The response allowed the Claimant's request for alternative accommodation within the Plymouth area. In subsequent correspondence the Claimant reiterated that he wanted to ensure that he was going to be given accommodation in as smoke-free an environment as possible for health reasons and preferably self-contained accommodation. Likewise he requested to be moved closer to where his child lives.
4. Judicial review proceedings were commenced by the Claimant on 20 December 2013. Permission to continue the proceedings was granted by His Honour Judge Mott QC on 8 May 2014. On 24 March 2015 TV Edwards solicitors for the Claimant came off the record. On 26 March 2015 Lawrence Lupin solicitors came on the record as acting for the Claimant but have since applied to come off the record and took no part in this hearing. The judicial review hearing was listed for 15 April 2015 but was vacated by consent with a direction for the Claimant to notify the Court by 14 July 2015 whether he wished to continue the claim.
5. The reason for this approach and the vacation of the hearing of 15 April 2015 is that the parties wished to discuss a resolution of the various issues. The Claimant was later offered and in fact took up occupancy of a self-contained studio flat in Bristol on 19 August 2015. The Secretary of State had offered alternative accommodation, which has now been taken up, and also to pay the reasonable costs for travel for the Claimant and his son between Bristol and Yeovil to maintain contact as well as offering to pay the costs of these proceedings.
6. By letter dated 18 August 2015 the Claimant's solicitors wrote to the Defendant stating that he would accept the proposed settlement if (a) accommodation is provided to the Claimant which provides a separate bedroom for the Claimant's son to stay at weekends and (b) agreement to pay the Claimant's travel expenses to maintain contact specifically for travel between Bristol and Yeovil to collect the Claimant's son and to return him home.
7. On 22 September 2015 the Defendant responded noting that the Claimant had now been provided with self-contained accommodation which, the letter notes, is "exceedingly scarce and it took a considerable period of time to source such accommodation, in one of your client's preferred locations." The letter also notes that the letter of 18 August 2015 was the first time that the Claimant had requested a "self-contained flat which provides a second bedroom for his son to sleep in when he comes to stay with his father." The Defendant refused the request on the grounds that such accommodation is very scarce and simply unavailable at present. Further the Defendant stated that there was no legal obligation on the Defendant to provide accommodation for the Claimant's son such as that requested as the Claimant's son is not a dependent within the meaning of section 94 of the Immigration and Asylum Act 1999. Even if the Claimant's son was a dependent for these purposes, he lives with his mother and therefore has adequate accommodation, food and other essential items and would therefore not be considered destitute and in need of accommodation – section 95 (2) of the Immigration and Asylum Act 1999.
8. The letter in response from the Defendant also considered whether the circumstances were exceptional by reference to section 96(2) of the 1999 Act taking into account all of the circumstances. The Defendant concluded that she had fulfilled her obligations to the Claimant by providing him with the self-contained accommodation which has now been provided.
9. At the hearing the Claimant represented himself and filed a lengthy set of written submissions. Condensing those written submissions they consisted of the following points:

i) the Claimant had received no further information as to when his asylum application would be finally determined or indeed what stage it was at. This was amplified at the hearing when the Claimant produced a letter dated 22 September 2014 sent by the Claimant's solicitors to him which stated that following the Claimant's interview on 12 September 2014 the caseowner confirmed "he will make a decision on your case on 26 September 2014."

ii) as a result of the problems with the Claimant's accommodation and the uncertainty surrounding his asylum application his former partner and the mother of his son together with the social services have concluded that he should not have further contact with his son until after his application for asylum is dealt with.

iii) in order to stand any hope of establishing contact with his son the Claimant will need to have a final decision regarding his asylum application and then, if that application is successful and he is allowed to remain, to undertake training so as to be able to look after his son's special needs and recommence contact. There is at present no contact and such contact will only be obtainable either consensually with the child's mother or by order of the Family Court.

10. The position has moved on considerably since these proceedings were commenced. The relief sought by the Claimant was to obtain accommodation either with non-smokers or in self-contained accommodation either in Yeovil or in a location whereby it is easier to access Yeovil than Plymouth or failing that in Plymouth itself. The Claimant obtained self-contained accommodation in Bristol which he moved into on 19 August 2015. As the accommodation is self-contained the issue in respect of the harm caused by smoking is thereby resolved.
11. The Claimant says that whilst the accommodation is adequate for him on his own it is far too small for him to be able to have his son stay there for any length of time and is still too far away from Yeovil. This was addressed by the Defendant in her letter of 22 September 2015.
12. Part of the ongoing concern of the Claimant is that the accommodation is by reason of its distance and limited size such that it is a further obstacle to having contact with his son in the future. That issue is addressed in the letter of 22 September. There is no other accommodation presently available in or closer to Yeovil. It is also clear from what the Claimant has said to the Court that he has not investigated other venues for contact such as through contact centres.
13. The letter of 22 September went on to invite the Claimant to withdraw these proceedings on the basis that adequate accommodation had already been provided, the Defendant would continue to make the payment of £11 per week to facilitate contact with his son and the Defendant would pay the costs of these proceedings. The Claimant decided to continue with these proceedings because he wanted to resolve issues including his asylum application and issues concerning contact.

Conclusion

14. These proceedings have now become academic. The relief sought has been obtained and had been obtained prior to the letter of 22 September 2015. There is no application to amend the claim in these proceedings so as to seek other relief and I am satisfied there is no proper basis for any such application to amend even if it were sought.
15. The Defendant has now confirmed that the Claimant will be invited for interview on 18 January 2016 in respect of his asylum application. It is unclear how long it will take after that interview before a final decision is made.
16. The Claimant has persisted with these proceedings when it was clear that the offer made by the Defendant on 22 September 2015 should have been accepted. The issues which were properly brought before this court had been resolved by that stage. The Defendant has maintained she was under no obligation to provide the accommodation in Bristol and to make the payments to facilitate contact. Other issues such as contact with the Claimant's son and his application for asylum are not matters with which this court is seized.
17. The claim is therefore dismissed. I have heard the submissions from both parties regarding costs. The Defendant will pay the Claimant's costs up to and including fourteen days after the date of the letter of 22 September 2015, therefore up until close of business on 6 October 2015. The Claimant should have accepted the offer from the Defendant by that time. Thereafter, the Claimant shall pay the costs of these proceedings, but if the Claimant can establish that he had the benefit of legal funding after 6 October 2015, this order may not be enforced, save by way of set-off, without an assessment of the amount which it is reasonable for the Claimant to pay pursuant to section 26(1) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.