In R (NB & Others) v Secretary of State for the Home Department  EWHC 1489 (Admin), the High Court ruled that the treatment of asylum seekers at Napier military barracks did not meet minimum legal standards, that the process for allocating asylum seekers to accommodation centres was flawed and unlawful and that the six claimants had been falsely imprisoned during the “inevitable” Covid-19 outbreak. David Manknell of 1 COR was junior counsel to the SSHD.
In September 2020, Napier military barracks was converted into a medium-term accommodation centre for asylum seekers. By the end of January 2021, the centre had witnessed a major outbreak of Covid-19, protests by residents against poor conditions inside the facility and a fire.
NB and the other five claimants had been kept at the barracks for months. This was despite evidence that that they had all experienced “people trafficking and/or torture prior to their arrival in the United Kingdom” and that several of them were suffering from pre-existing mental health issues as a result of their experiences. At issue in this case was the Defendant’s decision in each of the Claimants’ cases that they should be accommodated at the Barracks.
Grounds of Challenge
The Claimants advanced four grounds of challenge:
- The accommodation at the Barracks did not and does not comply with section 96 Immigration and Asylum Act 1999 (IAA) read with Directive 2013/9/EC, which sets out “minimum standards” for reception of asylum seekers (“the RCD”), and/or it breached the Defendant’s own representations that the accommodation conformed to her general standards for such accommodation set out in the Asylum Accommodation and Support Services contract (“the AASSC”).
- The process for applying the Defendant’s criteria for selecting people to be accommodated at the Barracks was and is flawed and unlawful, both in relation to (a) the initial decision to transfer asylum seekers to the Barracks, and (b) the monitoring or review of suitability post transfer. This ground is based, in particular, on fulfilment of the Tameside duty and the Public Sector Equality Duty (“PSED”) under section 149 of the Equality Act 2010 (“EA 2010”).
- Accommodating the Claimants at the Barracks, and the conditions to which they were subject whilst there, breached their rights under Articles 2, 3 and/or 8 of the European Convention on Human Rights, contrary to section 6 and 7 of the Human Rights Act 1998 (“HRA 1998”).
- There were periods during which the restrictions on the Claimants’ movement amounted to false imprisonment at common law and/or breach of Article 5 of the ECHR.
This article explores the Claimants’ success under Grounds 1 and 2 and their partial success on Ground 4. They were unsuccessful on Ground 3.
S.96 IAA 1999 sets out the ways in which support may be provided by the Secretary of State to an asylum seeker who is destitute under s.95. These include the provision of adequate accommodation. The EU Reception Directive, meanwhile, stipulates “minimum standards for the reception of asylum seekers that will normally suffice to ensure them a dignified standard of living”. This Directive obliges States “to take into account the specific situation of vulnerable persons such as persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence persons.”
In the United Kingdom the RCD was implemented in part through existing health, education and community care provisions, with amendments to policy, and in part through the Asylum Seekers (Reception Conditions) Regulations 2005 SI 2005/7. Notwithstanding the UK’s departure from the EU at the time the case was heard, the Directive was effective until 31st December 2020.
Following R (Refugee Action) v Secretary of State for the Home Department  EWHC 1033 (Admin), the Court held the standard of review in relation to s.96 IAA is that the accommodation must meet the minimum required by the RCD i.e. “to ensure a standard of living adequate for the health of [the Claimants] and capable of ensuring their subsistence”.
The High Court said the starting point for this case is that the Claimants were not supposed to be detained. They were supposed to be living voluntarily in accommodation pending a determination of their applications for asylum. Despite this, Napier barracks resembled
a detention-like setting with its perimeter fence topped by barbed wire … [and] padlocked gates guarded by uniformed security personnel. 
There were several other significant aggravating factors. For instance, whilst the Defendant claimed it was their intention that residents would be moved to other section 95 accommodation whilst they awaited the outcome of their applications for asylum, the Court was “not provided with evidence that it was part of the Defendant’s decision in September 2020 that there was any particular limit to how long a resident could be accommodated at the Barracks, nor of any system for moving residents out after they had been there for a particular period of time, nor of any time limit being placed on the stay of any of the Claimants in the light of their particular circumstances.”  In fact, the Claimants were only transferred when the litigation commenced, having spent at least 4 months being accommodated there.
There was additional evidence that the over-crowding of the dormitories rendered them non-compliant with the Covid safety advice of Public Health England. Indeed, the Court held it was irrational for the Defendant to depart from this advice in such a fundamental way. This was because “[t]he effect of the Defendant’s decision was that it was virtually inevitable that large numbers of residents would contract Covid-19.”  The irrationality of this arrangement is heightened when one added the evidence about the fire risk in relation to the arrangements at the Barracks.
In sum, the accommodation did not ensure a standard of living which was adequate for the health of the Claimants.
The Defendant accepted the Barracks were not suitable to accommodate asylum seekers who were vulnerable. Accordingly, it was important that there were effective suitability assessment criteria for ensuring that those who were unsuitable were not accommodated there. This entailed identifying such persons, both at the point of allocation and after an asylum seeker had been transferred.
The High Court conducted a highly intricate investigation into the process by which the suitability criteria were implemented. The correct approach when making assessments under the Tameside principle was summarised in R (Balajigari) v Secretary of State for the Home Department  1 WLR 4647 CA , with that judgment itself drawing upon the summary provided by Haddon-Cave J in R (Plantagenet Alliance Ltd) v Secretary of State for Justice  3 All ER 261,  – . The standard is essentially one of reasonableness, with the court not being permitted to intervene on the basis that further information would be desirable or sensible.
Linden J found that the system which the Defendant operated when the Claimants were transferred to the Barracks, and whilst they were there, fell below the “fairly low standard” required by the application of the Tameside principle. For instance, the screening interviews which preceded the transfer of the claimants to the Barracks were truncated, lacking the specific questions necessary for identifying sensitive information directed to the suitability criteria.
The evidence also suggested the Defendant knew this process was inadequate given that from 1 December 2020, the interviews were supplemented with a new form requiring extra information. Furthermore,
there had been barely anyone on site, not even the nurse, who was aware of the suitability assessment criteria and the possibility of referrals to the Home Office Safeguarding Team, let alone trained in the application of the criteria or to identify cases where the person was not suitable. 
The end result was that there were significant numbers of people living in the Barracks for whom such accommodation was unsuitable either before they were transferred or because their mental health deteriorated whilst staying at the accommodation. In the words of Linden J, “[t]hese are not the hallmarks of a Tameside compliant, rational, system to ensure that the Defendant was reasonably well informed as to the suitability or otherwise of the Barracks to accommodate a given asylum seeker, whether at the point of allocation or on a continuing basis.” 
In general terms, the Claimants argued that restrictions on their movement into and out of the Barracks, during various periods, amounted to false imprisonment. Principal among the claims was an alleged night-time curfew between 10pm and 6pm. Some important context for this allegation is the fact that residents had expressed a view that the Barracks felt “like a detention centre or prison camp”.
In respect of the claim under the common law, the High Court relied upon the definition of false imprisonment in R (Jalloh) v Secretary of State for the Home Department  2 WLR 413, discussed on this blog here, in which the Supreme Court ruled at para , “The essence of imprisonment is being made to stay in a particular place by another person. The methods which might be used to keep a person there are many and various … They could also be threats, whether of force or of legal process.” [para 24 quoted at 288]
In respect of the claim under Article 5 ECHR, the Claimants relied upon AP v Secretary of State for the Home Department  2 AC 1 which considered whether subjection to a control order pursuant to section 2, Prevention of Terrorism Act 2005, amounted to deprivation of liberty and held that it did.
The Court held that the evidence did not support the allegation of a curfew. Whilst there was an “expectation” that the Claimants would be back by 10pm, “they were [not] told that they would automatically be treated as having absconded if they did not return, nor suffer any sanction other than being locked out for the night.” 
By contrast, in a letter received on 15th January 2021 during a major Covid-19 outbreak at the Barracks, residents were told they were not allowed to leave the site under any circumstance and that they if they did, they might be arrested by the police. This was followed by another letter on 28th January 2021 which issued instructions on self-isolation, including a declaration that those self-isolating were not to leave the site.
The first issue to be considered was whether the letter on 15th January constituted a valid notification of the duty to self-isolate under penalty of law for the purposes of Regulation 2(1), Health Protection (Coronavirus, Restrictions) (Self Isolation) (England) Regulations 2020/1045. The Court held that, assuming the letter was valid, the duty to self-isolate permitted a person to leave the place where they would otherwise be required to remain, where necessary, for various purposes Regulation 2(3)(b). These included seeking medical assistance and services relating to mental health.
However, the letter did not point any of this out. Rather, it clearly instructed the residents not to leave the Barracks under any circumstances. This was said to be the residents’ legal obligation when in fact it was not. Accordingly, the High Court upheld the claim under both the common law and under Article 5.
Of note in this judgment is Linden J’s insistence that the unlawful failings could be rectified with changes to policy implementation. In other words, none of the inadequacies identified were systemic in nature. This will come as a relief to the Home Office and will surely influence the nature of its forthcoming changes to the UK’s asylum system.
Sapan Maini-Thompson is training to become a barrister specialising in criminal, public and human rights law. He tweets @SapanMaini
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