THE QUEEN on the application of SECRETARY OF STATE FOR THE HOME DEPARTMENT v FIRST-TIER TRIBUNAL (SOCIAL ENTITLEMENT CHAMBER) [2021] EWHC 1690 (Admin)

"the Accommodation Regulations"). The failed asylum-seeker must be destitute. By virtue of reg. 2, which applies the definition in s. 95(3) of the 1999 Act, this means that: "(a) he does not have adequate accommodation or any means of obtaining it (whether or not his other essential living needs are met); or (b) he has adequate accommodation or the means of obtaining it, but cannot meet his other essential living needs"

"(a) he is taking all reasonable steps to leave the United Kingdom or place himself in a position in which he is able to leave the United Kingdom, which may include complying with attempts to obtain a travel document to facilitate his departure; (b) he is unable to leave the United Kingdom by reason of a physical impediment to travel or for some other medical reason; (c) he is unable to leave the United Kingdom because in the opinion of the Secretary of State there is currently no viable route of return available; (d) he has made an application for judicial review of a decision in relation to his asylum claim… and has been granted permission to proceed pursuant to Part 54 of the Civil Procedure Rules 1998… (e) the provision of accommodation is necessary for the purpose of avoiding a breach of a person's Convention rights, within the meaning of the Human Rights Act 1998."

"47. In respect of the generality of cases, I am satisfied that for those who reside in Tier 1 or Tier 2 locations and who are appeal rights exhausted, it remains reasonable to require them to take steps to leave or place themselves in a position in which they are able to leave the UK. This includes contacting the Home Office VRS [voluntary returns service] for help to facilitate their departure. Alternatively, they have the option to qualify for support by bringing themselves within other regulation 3(2) conditions. 48. However, it seems to me unreasonable to discontinue support to persons in receipt of section 4 support who reside in Tier 3 areas subject to very high alert. These areas are subject to the toughest restrictions with households banned from mixing indoors and outdoors, in hospitality venues or private gardens, and advised against travelling into or out of the area, much like the position in March 2020, when the respondent implemented her policy to safeguard the public and the communities in which they live. On that basis, I find that in areas now subject to very high alert and the same tough restrictions on movement, ending support to persons in receipt of section 4 support may again place them and others in their communities at greater risk of harm in breach of their Convention rights. That risk to health and wellbeing applies to everyone, whatever their immigration status. It cannot however, apply to PA and MA because at the date of decision (22/23 September 2020) and at the date of hearing (16 October 2020), their home towns were still in Tier 2 high alert areas. 49. Irrespective of whether such discontinuances would engage the high thresholds of Articles 2 and/or Article 3, they would certainly engage Article 8 in that any assessment of proportionality must have regard to the public interest, including public health considerations and in any assessment of proportionality the weight to be attached to such considerations would be very high."

"It cannot, in my judgement, be right that a person who has remained unlawfully in the UK for 13 years, who has wilfully refused to mitigate the consequences of being left without accommodation by not taking all reasonable steps to leave the UK, can nevertheless require the Secretary of State to support him under the ECHR simply by refusing to leave."

"1. Those supported under section 95 of the Immigration and Asylum Act 1999 but who were later refused asylum and had exhausted their appeal rights and had no children in their household, would not, contrary to normal practice, have their support discontinued after a notice period of 21 days. The group instead continued to receive support under section 4(2) of the 1999 Act. 2. No decisions were made to discontinue the support provided to anyone receiving it under section 4(2), including the group already supported under the provision as at 27 March 2020."

"57. In normal circumstances, judicial review of a refusal of s. 4 support would not be an appropriate remedy as there would be an alternative remedy available in the form of an appeal to the AST. The AST is treating PA and MA as providing authoritative guidance not only in cases where s. 4 support is discontinued, but also where fresh applications for such support is refused. Whilst asserting that those decision are wrong, the Secretary of State has chosen thus far not to challenge them and not even to challenge decisions that she is debarred from responding to the appeals. The result is that such appeals are almost bound to succeed at present. 58. The difficulty is that those appeals take three or four weeks to be heard. During that period, appellants are likely to be homeless. Each appellant is likely to have strong grounds for seeking mandatory injunctive relief that the Secretary of State provide s. 4 support during that period (as was the case with the Claimant in this case). In those circumstances, judicial review with a view to seeking interim relief may be appropriate. However, that would require the individual to bring a claim for judicial review and also to make an urgent application for interim relief. We recognise that that may pose additional difficulties for individuals and create burdens for the courts."

"52… I have not revised my view of PA and MA but will await the judgment of the Administrative Court. I will, however, address the arguments on public health in relation to Articles 2, 3 and 8 ECHR, as these are entirely new points."

"the Health Protection Regulations"), which had come into force on 29 March 2021, recorded that they had been made "in response to the serious and imminent threat to public health which is posed by the incidence and spread of [COVID-19]"

"60. The UK Government would not have taken such draconian steps as to shut down the country on three separate occasions had it not been persuaded, on the available evidence, that COVID-19 presented a real, immediate and serious risk to everyone. In my judgment, that is powerful evidence. The State's positive obligation is to protect everyone in its territory. This includes, for example, those lawfully detained in prisons but also, failed asylum seekers with no lawful basis to remain in the UK, who should return to their countries of origin once they have exhausted their appeal rights, but who have not done so. Based on Professor Coker's expert findings, persons of Black or Asian ethnicity (as most asylum seekers and failed asylum seekers tend to be) are at greater risk from COVID-19, and that risk is magnified when they are forced to live in overcrowded accommodation, in homeless shelters or on the streets due to being refused section 4(2) support. 61. I note that the Strasbourg Court has recognised in the Article 8 context that adverse consequences for health and human dignity that effectively erode the core of private life and the enjoyment of a home can also trigger a State's positive obligations, depending on the specific circumstances of the case and their level of seriousness: see e.g. Hudorovic and Others v Slovenia [at 116, 145 -146 and 158]. 62. The issue in this case, is not the practicality of providing such protection, but only of ensuring that no section of the public is excluded from such protection. There is an obvious and proportionate measure that the SSHD is able to take to avoid a breach of her positive obligations to protect, namely providing section 4 support so as to ensure that the appellant, a failed asylum seeker, is not made street homeless and thereby unable to avoid exposure to the virus in the same way as persons living in accommodation. The public interest considerations referred to by [counsel for the Secretary of State] in her submissions, namely the maintenance of effective immigration control and providing accommodation to persons who are lawfully present in the UK, do not outweigh the factors weighing in the appellant's favour. Predominantly, a failure to accommodate the appellant would, in my judgment constitute a disproportionate interference in his Article 8 right to respect for private life, and not to be exposed during a pandemic and national lockdown to street homelessness. Street homelessness includes the risk of living in a homeless shelter regarding which Professor Coker has written (see paragraph 25 above) that: '[a]ny policies that likely result in increasing the likelihood that people will congregate more, that is fail to socially distance, whether that be in detention centres, nursing homes, cruise ships, homeless shelters etc could and should have been seen to increase the risk to both individuals and the wider public health.'" 63. There is also an Article 14 dimension read with Article 8 ECHR. Given that the State identifies the virus as a threat to public health, it cannot be said that there is an objective justification for excluding failed asylum seekers like the appellant from the category of the public."

"The available evidence demonstrates that the UK Government has taken and continues to take measures that are within the scope of its powers ( Osman at 116) and its priorities and resources ( Cevrioglu , at 50) to discharge its positive obligations to protect the public from the real, immediate and serious risk of harm from COVID-19. I acknowledge that there are positive signs of improvement with the number of deaths reducing daily; with over 34,000 people having received the first vaccination dose; and over 14,000 people having received both doses. But the Country remains in lockdown until at least 21 June 2021, when the government hopes to remove all legal limits on social contact. However, that is still some seven weeks away. Until then, the current threat to public health requires that section 4 accommodation should be provided to the appellant."

"As regards the Claimant's practice, adopted on 14 May 2021, of continuing to provide accommodation under s4 to all DFAS until step 4: a. Can the Claimant state the legal basis for the provision of that accommodation? b.

"(i) 27 March 2020 until 15 September 2020 a policy was adopted pursuant to which the continuing eligibility of failed asylum seekers to accommodation under section 95 and/or section 4(2) of the Immigration and Asylum Act 1999 ('1999 Act') was not reviewed. This action has been conceptualised as the exercise of the prerogative power. (ii) From 11 November 2020 a policy was adopted pursuant to which the continuing eligibility of failed asylum seekers to accommodation under section 95 and/or section 4(2) of the 1999 Act was not reviewed. No review decisions have been made since then apart from a period between 23 April 2021 and 25 May 2021 when some decisions were taken to cease providing accommodation to those found ineligible to receive it under section 95. This action has been conceptualised as the exercise of the prerogative power."

"We do not consider that either article 3 or article 8 imposes a duty on the state to provide the claimant with support… A state owes no duty under the Convention to provide support to foreign nationals who are permitted to enter their territory but who are in a position freely to return home."

"Whilst a minority of individuals are at high risk from COVID-19, for the vast majority of people the symptoms of COVID-19 are flu-like and insufficiently serious to require hospitalisation."

"In this area, the positive obligations imposed on the State by Article 2 imply, above all, that a regulatory structure be set up, requiring that hospitals, be they private or public, take appropriate steps to ensure that patients' lives are protected."

"The rights defined in the Convention are predominantly civil and political in nature. This reflects the original purpose of the Convention, conceived and developed as it was in the aftermath of the Second World War as a bulwark for protecting the peoples of Europe against tyranny and oppression. As stated in its Preamble, the Convention is a collective enterprise of European countries which are 'like-minded and have a common heritage of political traditions, ideals, freedom and the rule of law', and is designed to maintain 'those fundamental freedoms which are the foundation of justice and peace in the world'. Within the legal framework established by the Council of Europe, social and economic rights are protected by a separate treaty, the European Social Charter, adopted by the Council in 1961."

"where the State is required to take positive measures, the choice of means is in principle a matter that falls within the Contracting State's margin of appreciation. There are different avenues to ensure Convention rights, and even if the State has failed to apply one particular measure provided by domestic law, it may still fulfil its positive duty by other means."

"32. Where the European Court of Human Rights has held that the Convention imposes obligations on the state to make socio-economic provision for basic material needs, it has done so by reference to article 3, which prohibits inhuman or degrading treatment. Thus, in the leading case of MSS v Belgium and Greece (2011) 53 EHRR 2 the court held that Greece was in breach of article 3 in failing to provide for the most basic needs for food, hygiene and shelter of an asylum seeker ('a member of a particularly underprivileged and vulnerable population group in need of special protection') who had spent several months living on the street in a state of extreme poverty (see paras 249-264). It is clear that the test for a breach of article 3 is a demanding one…"

"art. 3 cannot be interpreted as obliging the high contracting parties to provide everyone within their jurisdiction with a home. Nor does art. 3 entail any general obligation to give refugees financial assistance to enable them to maintain a certain standard of living."

"7… A general public duty to house the homeless or provide for the destitute cannot be spelled out of article 3. But I have no doubt that the threshold may be crossed if a late applicant with no means and no alternative sources of support, unable to support himself, is, by the deliberate action of the state, denied shelter, food or the most basic necessities of life. 8. When does the Secretary of State's duty under section 55(5)(a) arise? The answer must in my opinion be: when it appears on a fair and objective assessment of all relevant facts and circumstances that an individual applicant faces an imminent prospect of serious suffering caused or materially aggravated by denial of shelter, food or the most basic necessities of life. Many factors may affect that judgment, including age, gender, mental and physical health and condition, any facilities or sources of support available to the applicant, the weather and time of year and the period for which the applicant has already suffered or is likely to continue to suffer privation. 9. It is not in my opinion possible to formulate any simple test applicable in all cases. But if there were persuasive evidence that a late applicant was obliged to sleep in the street, save perhaps for a short and foreseeably finite period, or was seriously hungry, or unable to satisfy the most basic requirements of hygiene, the threshold would, in the ordinary way, be crossed."

"It is possible to derive from the cases which are before us some idea of the various factors that will come into play in this assessment: whether the asylum-seeker is male or female, for example, or is elderly or in poor health, the extent to which he or she has explored all avenues of assistance that might be expected to be available and the length of time that has been spent and is likely to be spent without the required means of support. The exposure to the elements that results from rough-sleeping, the risks to health and safety that it gives rise to, the effects of lack of access to toilet and washing facilities and the humiliation and sense of despair that attaches to those who su.er from deprivations of that kind are all relevant."

"…asylum seekers, it should be remembered, are exercising their vital right to claim refugee status and meantime are entitled to be here. Critically, moreover, unlike UK nationals, they have no entitlement whatever to other state benefits."

"It is important to recall that Article 8 does not in terms recognise a right to be provided with a home. Nor does any of the jurisprudence of the Court acknowledge such a right. While it is clearly desirable that every human being have a place where he or she can live in dignity and which he or she can call home, there are unfortunately in the Contracting States many persons who have no home. Whether the State provides funds to enable everyone to have a home is a matter for political not judicial decision."

"The obligation to adopt appropriate measures must be interpreted in a way that does not impose an impossible or disproportionate burden on the authorities. For the Court, not every claimed risk to the physical integrity can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. In the opinion of the Court, it must be established to its satisfaction that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life or the physical integrity of an identified individual and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk…"

"It is not the Court's task to substitute itself for the competent domestic authorities in determining the best policy to adopt in dealing with problems of public health and safety such as the issue of stray dogs in Romania. In that connection it accepts that an impossible or disproportionate burden must not be imposed on the authorities without consideration being given in particular to the operational choices which they must make in terms of priorities and resources…; this results from the wide margin of appreciation States enjoy, as the Court has previously held, in difficult spheres such as the one in issue in the instant case…"

"although Article 8 does not guarantee the right to have one's housing problem solved by the authorities, a refusal of the authorities to provide assistance in this respect to an individual suffering from a severe disease might in certain circumstances raise an issue under Article 8 of the Convention because of the impact of such refusal on the private life of the individual."

"the level of realisation of access to water and sanitation will largely depend on a complex and country-specific assessment of various needs and priorities for which funds should be provided. In the Court's view, the States must be accorded wide discretion in their assessment of those priorities and the legislative choices they make, given their wide margin of appreciation in socio-economic matters. That discretion must also apply to the concrete steps aimed at ensuring everyone has adequate access to water, such as the adoption of a national water strategy, national and local implementation projects of any such strategy, or, indeed, the provision of water from the public water-distribution system to individual households."