BDK and BAL -v- Secretary of State for the Home Department (anonymity order)

Administrative CourtCivilHigh CourtKing's Bench DivisionAnonymity Order

Case number: AC-2024-BHM-000302

In the High Court of Justice
King’s Bench Division
Administrative Court

In the matter of an application for judicial review

9 April 2025

Before:

The Hon. Mr Justice Eyre

Between:

The King
on the application
(1) BDK
(2) BAL
(Claimants)

-v-

Secretary of State for the Home Department
(Defendant)

and

Mears Group Plc
(Interested Party)

Order

Notification of the Judge’s Decision (CPR 54.11, 54.12)

Following consideration of the documents lodged by the Claimants, the Defendant’s Acknowledgement of Service and Summary Grounds of Resistance, the Interested Party’s response, and the Claimants’ Reply.

ORDER BY THE HON. MR JUSTICE EYRE

  1. Anonymity:

(a) Pursuant to CPR 39.2(4) and/or the Court’s inherent jurisdiction and/or s. 6 of the Human Rights Act 1998:

(i) the Claimants’ names are to be withheld from the public and must not be disclosed in any proceedings in public; and

(ii) the First Claimant is to be referred to orally and in writing as BDK.

(iii) the Second Claimant is to be referred to orally and in writing as BAL.

(b) Pursuant to s. 11 of the Contempt of Court Act 1981, there must be no publication of the identity of either Claimant or of any matter likely to lead to the identification of either Claimant in any report of, or otherwise in connexion with, these proceedings.

(c) Pursuant to CPR 5.4C(4):

(i) the parties must within 7 days file a redacted copy of any statement of case filed, omitting the name, address and any other information likely to lead to the identification of the Claimants; if any statement of case subsequently filed includes information likely to lead to the identification of the Claimants, a redacted copy omitting that information must be filed at the same time;
(ii) unless the Court grants permission under CPR 5.4C(6), no non-party many obtain a copy of any unredacted statement of case.
(iii) Any person wishing to vary or discharge this Order must make an application, served on each party.
(iv) Pursuant to CPR r.39.2(5) this Order will be published on the website of the Judiciary of England and Wales.

  1. Time for applying for judicial review is extended.
  2. Maddie Harris shall not act as a litigation friend for the First Claimant.
  3. To the extent that it is necessary the First Claimant has permission pursuant to CPR rule 21.2(3) to conduct these proceedings without a litigation friend.
  4. Permission: Permission to apply for judicial review is refused.
  5. Costs: The Claimant must pay the Defendant’s costs of preparing the Acknowledgement of Service and the Summary Grounds of Resistance. The said costs are to be assessed on the standard basis in default of agreement. The Defendant shall bear the costs of any such assessment in any event.
  6. Further provision as to costs:

(a) Where the Claimants do not make a valid request for reconsideration of the decision to refuse permission to apply for judicial review (see notes below):

(i) Within 14 days of the date of this Order, the Claimants may file and serve a notice of objection (maximum 3 pages) showing why the order in paragraph 6 should not be made. The notice should include any objections to the principle that costs should be paid.

(ii) If the Claimants do not file and serve a notice of objection within that period, paragraph 6 is a final order.

(iii) If the Claimants file and serve a notice of objection in accordance with (i) above:

  • the Defendant may, within 14 days after the date on which the notice is served, file and serve submissions in response (maximum 3 pages);
  • if the Defendant files and serves on the Claimants submissions in response, the Claimants may, within 7 days after the date on which the Defendant’s submissions in response are served, file and serve reply submissions (maximum 3 pages);
  • the Court will determine what costs order to make on the papers.

(b) Where the Claimants make a valid request for reconsideration (see notes below):

(i) Paragraph 6 does not become final as respects the costs payable to any party unless, insofar as it relates to that party:

  • the Claimants withdraw the application for permission; or
  • permission to apply for judicial review is refused on all grounds after a hearing.

(ii) If the Claimants wish to contend that the order in paragraph 6 should not be made even if permission is refused on all grounds, the Claimants must within 14 days after the date of this Order file and serve (together with the request for reconsideration) a notice of objection (maximum 3 pages). The notice should include any objections to the principle that costs should be paid and/or as to the amount assessed.

(iii) If the Claimants file and serve a notice of objection in accordance with (ii) above:

  • the Defendant may, within 7 days after the date on which the notice is served, file and serve submissions in response (maximum 3 pages);
  • if the Defendant files and serves on the Claimants submissions in response, the Claimants may, within 7 days after the date on which those submissions are served, file and serve reply submissions (maximum 3 pages);
  • the Court will determine what costs order to make at or after the permission hearing.

8. Renewal directions: Where the Claimants make a valid request for reconsideration (see notes below), the following directions apply:

    (a) The permission hearing is to be listed with a time estimate of 1 hour including submissions by the parties and an oral judgment by the judge. If the Claimants consider that more time should be allowed, the time estimate must be included with the request for reconsideration of permission.

    (b) Within 21 days of the service of this Order, the Claimants must file and serve an electronic copy of the Permission Hearing Bundle, prepared in accordance with the guidance on the Administrative Court website and containing the following documents:

    (i) the Claim Form, Statement of Facts and Grounds and any evidence or other documents filed with the Claim Form;

    (ii) any Acknowledgment of Service, Summary Grounds of Defence and any accompanying documents served by the Defendant and/or Interested Party;

    (iii) any Reply or other document served by any party to the proceedings at the paper permission stage;

    (iv) this Order;

    (v) the renewed application for permission to apply for judicial review (on Form 86B);

    (vi) any other document the Court would be likely to consider material to its decision on permission to apply for judicial review.

    (c) If the Claimants fail to comply with sub-paragraph (b), permission will be determined on the basis of the renewal notice and the documents before the Court at the paper stage, unless at the hearing the Court otherwise directs.

    (d) At least 7 days before the date listed for the hearing, the Claimants must file and serve:

    (i) a skeleton argument, maximum 10 pages;

    (ii) an electronic bundle containing any authorities which the Court needs to read at the hearing (the Authorities Bundle: see para. 22.1.2 of the Administrative Court Judicial Review Guide); and

    (iii) if requested by the Court, a hard copy version of the Permission Hearing Bundle and Authorities Bundles.

    (e) At least 7 days before the date listed for the hearing, any party other than the Claimants intending to participate in the hearing must file and serve any skeleton argument, maximum 10 pages.

    (f) If a party fails to comply with sub-paragraph (b), (d) and/or (e), the Court may have regard to the failure when considering any question about costs at the hearing.

    REASONS

    (1) The Claimants are both asylum seekers whose applications for asylum are yet to be determined. I am satisfied that as a consequence of that it is necessary for the proper administration of justice for their names to be anonymised. In addition, anonymisation would have been warranted in respect of the First Claimant’s asserted status as a child. However, anonymisation would not have been warranted by reason solely of the alleged and unparticularised risk to the Claimants from “far right groups”.

    (2) There is dispute as to whether the First Claimant is in fact a child. However, even on his own account he will be 18 on 8th June 2025. In light of that it is appropriate that to the extent that it is necessary he be permitted to conduct the proceedings without a litigation friend.

    (3) The Defendant accepts that time should be extended for the First Claimant to apply for judicial review. As the same issues are raised by the Second Claimant I am satisfied that it is appropriate to extend time for the Second Claimant to the extent that this is necessary.

    (4) Ground 1 has no real prospect of success. In that regard:

    (a) The Claimants do not allege a breach of the high level Article 3 systems duty and it is not arguable that there was such a breach in light of the existence of functioning police and court services.
    (b) It is not arguable with a real prospect of success that there was a breach of the lower level Article 3 systems duty.
    (i) The analysis in R (MG) v SSHD [ 2022] EWHC 1847 (Admin) at [49] – [60], and in particular for these purposes at [59], is compelling. The force of that analysis in the circumstances of this case is not affected by the decisions in SAG v SSHD [2024] EWHC 2984 (Admin) or ASY v Home Office [2024] EWCA Civ 373 both of which are readily distinguishable. In light of that analysis the housing of asylum seekers in hotels does not give rise to the lower level systems duty. The risk of racist attacks does not alter that position. I refer again to the compelling analysis at [59] of MG. The placing of asylum seekers in hotels is not inherently dangerous even when account is taken of the risk of racist attacks in circumstances where there are functioning police and court services able to address such attacks.
    (ii) In addition the Defendant’s analysis of the Claimants’ criticisms of the systems in place is persuasive. Even if it were to be found that the lower level systems duty was owed there is no real prospect of a finding that there was a breach of that duty. Again, account must be taken of the existence of a functioning police service with the primary responsibility for preventing and addressing offending.
    (iii) It is similarly not reasonably arguable that there was a breach of the operational duty in circumstances where there was a police presence at the hotel and where the primary responsibility for addressing and preventing the disorder was that of the police service.
    (c) In the absence of an arguable breach of either the Article 3 systems or operational duties there is no proper basis for the assertion of a breach of the investigative duty.

    (5) The invocation of section 55 of the 2009 Act in ground 2 does not advance matters. The duty under that section cannot even arguably be said to have required additional steps to have been taken in these respects over and above those applicable in relation to adult asylum seekers.

    (6) Similarly, the reliance in ground 3 on the Public Sector Equality Duty does not give rise to an arguable ground for relief. It cannot even arguably be said that the duty required different or further steps to be taken in relation to the risk of racist attacks.

    (7) It follows that permission is to be refused.

    (8) In light of that refusal the Defendant is entitled to her Mount Cook costs. However, no schedule has been served and detailed assessment will be needed in default of agreement. The need for detailed assessment is the consequence of the Defendant’s failure to serve a costs schedule. It would not be proportionate to deprive the Defendant of her costs by reason of that failure but it is appropriate that she bear the costs of the detailed assessment which her failure has necessitated.

    Signed: MR JUSTICE EYRE
    Date: 9th April 2025