CO Reference: CO/51/2023
In the High Court of Justice
King’s Bench Division
3 February 2023
Mrs Justice Steyn
In the matter of an application for judicial review
on the application of
Secretary of State for the Home Department
Notification of the Judge’s decision on the application for permission to apply for judicial review (CPR 54.11, 54.12)
Following consideration of the documents lodged by the Claimant and the Acknowledgement of Service filed by the Defendant
ORDER by the Honourable Mrs Justice Steyn DBE
- The Claimant’s application for urgent consideration of permission within 7 days of filing of the Acknowledgment of Service is granted.
- Pursuant to CPR 39.2(4) no person shall publish the name, address or any other information capable of identifying the Claimant. The Claimant shall be referred to as “SU” in these proceedings, and this claim shall be referred to as “R (SU) v Secretary of State for the Home Department”.
- The application for permission to apply for judicial review is refused.
- No order for costs.
- The claimant seeks to challenge the defendant’s ongoing failure to provide him with s.95 accommodation, following the decision of 23 June 2022 confirming that he was entitled to such support, and the decision refusing his request to be provided with accommodation in the Bristol area. Although the claim form states that the decision/failure challenged is “ongoing”, the decision that accommodation would be provided in any dispersal location, not restricted to Bristol, was made on 23 June 2022. This claim was filed on 8 January 2023. The challenge to the latter decision has not been brought promptly, or within the three month longstop period provided in CPR 54.5. No extension of time has been sought, nor any reasons given for the delay in challenging that decision. Accordingly, I refuse permission on ground 3 on grounds of delay.
- By grounds 1 and 2 the claimant challenges the alleged ongoing failure to provide s.95 accommodation. However, although there was a delay following the decision of 23 June 2022, on 18 August 2022 the claimant lodged a request to enrol into Interim Accommodation again and he was admitted the same day into full board accommodation at Double Tree by Hilton in Reading. On 22 August 2022 the Claimant absconded from his Interim Accommodation with the effect that the provision of asylum support ceased and the Defendant cancelled the instruction to find dispersal accommodation for him. The Claimant was informed in the Defendant’s response, dated 15 October 2022, to the Claimant’s first PAP letter, that his asylum support had been discontinued as he had absconded and that if he wished to seek asylum support he would need to submit a new ASFI form.
- The Claimant has not submitted a further request for asylum support and so at present the Defendant is not arguably failing to comply with its duty under s.95 to provide accommodation within a reasonable time. Nor is it arguable in the circumstances that the Defendant has breached the Claimant’s rights under article 3 of the ECHR.
- It is true that Migrant Support mistakenly informed the Claimant on 14 November 2022 that his s.95 award had not been discontinued and that he was awaiting dispersal, but it is clear that was an incorrect statement and the Claimant had already been informed in a letter from the Home Office of the true position. The mistake by Migrant Support does not render grounds 1 or 2 arguable.
- As the Claimant needs to make a fresh application for asylum support, any application to be accommodated in Bristol will need to be considered by the Defendant afresh, together with any evidence the Claimant may adduce in support of that request. Accordingly, I would also refuse ground 3 on the basis that it is academic.
- Ordinarily, where permission is refused, the defendant would be entitled to the costs of preparing the AOS and SGDs. However, in this case I consider that the appropriate order is no order as to costs. That is because the Defendant failed to respond to the Claimant’s second pre-action protocol letter, and in particular to clarify that the statements made by Migrant Help were incorrect. If the Defendant had responded to that letter, the costs of this claim may well have been avoided.
- The Claimant sought urgent consideration, which I have granted. In addition, I consider that it is necessary to grant the Claimant’s application for anonymity, in view of his status as an asylum seeker and having regard to the sensitive mental health issues addressed in the claim.
Signed Mrs Justice Steyn 3 February 2023