SH, R (on the application of) v Secretary of State for the Home Department [2026] EWHC 729 (Admin)

[2026] EWHC 729 (Admin)

Case No AC-2025-LON-001905

and AC-2025-LON-002101

Date Thursday, 26 th March 2026

IN THE HIGH COURT OF JUSTICE

KING'S BENCH DIVISION

ADMINISTRATIVE COURT

Before

ALAN BATES

(sitting as a Deputy Judge of the High Court)

Between

THE KINGClaimant

SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant

And between:

Between

THE KINGClaimant

SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant

Zoë Leventhal KC, Toby Vanhegan and Ben Amunwa (instructed by Deighton Pierce Glynn) for Claimants.

Carine Patry KC and Karen Reid (instructed by the Government Legal Department) for Defendant.

Hearing Hearing dates: 3, 16, and 18 December 2025

Supplementary evidence/written submissions: 14 and 28 January and 2 February 2026

Judgment Released: 26 March 2026

Approved Judgment

THE DEPUTY JUDGE:

[1]This judgment is given in two judicial review claims which raise some common issues and which I heard together. Each claim is brought by an adult asylum seeker who has, together with members of her immediate family, been accommodated by the Defendant pursuant to Part VI of the Immigration and Asylum Act 1999 (“IAA 1999”). The Defendant accepts that each Claimant is “destitute” and thus eligible for asylum support under ss.95-96 of the IAA 1999, namely “adequate” accommodation plus weekly subsistence payments.

[2]The Defendant chooses to discharge her duty under ss.95-96 to provide accommodation for destitute asylum seekers by engaging third party contractors to arrange for(i) “initial accommodation” (“IA”), usually in a hotel or hostel, and

(ii) “dispersal accommodation” (“DA”), such as self-contained flats or other residential properties. IA is intended to be for a short initial period, serving as a stopgap by providing the asylum seeker and her family with immediate protection from being street homeless, pending a DA placement being arranged.

[3]In recent years, however, the level of demand for accommodation under ss.95-96 (“s.95 accommodation”), combined with a shortage of available DA, has led to some asylum seekers and their families remaining in IA in hotel rooms for prolonged periods, sometimes extending as long as 2 or 3 years (as the facts of the Claimants’ cases illustrate). As at September 2025, over 35,000 individuals receiving asylum support were being accommodated in hotel accommodation. Although many of those individuals were single men or women, there were around 4,300 families in IA, many of which will be families including one or more minor children.

[4]The accommodation provided for each Claimant and her family has, for a prolonged period, been a room in a hotel. Each Claimant contends that, in all the circumstances (including the prolonged duration), the accommodation that has been provided to them fell short of constituting “adequate” accommodation and that, accordingly, the Defendant has failed to meet her statutory duty to them.

[5]The Court has granted each Claimant anonymity in these proceedings. One Claimant is referred to as “SH” and the other as “BWO”. By the dates of the hearing before me, SH and her family had been in hotel accommodation for over 3 years and were continuing to be so accommodated. BWO had, after her judicial review claim was issued, been moved to DA. This move occurred in July 2025, by which time she had been in hotel accommodation for 3 years.

[6]Both Claimants’ grounds of challenge include an argument that a hotel room in a fully catered hotel is a “dwelling” for the purposes of Part X of the Housing Act 1985 (“HA 1985”). Part X contains provisions which regulate “overcrowding”; in particular, it prohibits the occupier and landlord of a “dwelling” from allowing an excessive number of people to live in that dwelling. A dwelling is deemed to be “overcrowded” if the number of people living in the dwelling exceeds either of two standards:(i) the “room standard” (which is concerned with how many people share a bedroom); and

(ii) the “space standard” (which is concerned with floorspace). In addition, SH contends that the hotel in which she is being accommodated is required by the Housing Act 2004 (“HA 2004”) to be licensed as a ‘house in multiple occupation’ (“HMO”) but is not so licensed. It is fair to say that, by the time of the hearing, those arguments had become the primary focus of the Claimants’ cases. Those arguments are of wider significance than the Claimants’ own situations, given their relevance to the lawfulness of the Defendant’s arrangements for accommodating many of the 4,000+ families being accommodated in IA.

FACTUAL BACKGROUND

[7]SH is a woman of Kurdish ethnicity who came to the UK from Iraq, together with her husband and their son, in October 2022 and claimed asylum on arrival. For around 7 weeks after their arrival, the Defendant accommodated them at a hotel near Heathrow. Then, in mid-December 2022, they were moved to a room at the OYO Flagship London Finchley hotel (“the Finchley Hotel”) where they have remained living ever since. They have therefore been living in the Finchley Hotel for over 3 years.

[8]At the time when the family arrived in the UK in October 2022, the son was 4 years old. In September 2023, SH gave birth to a daughter. At the date of the hearing before me, the son was 7 years old and the daughter was 2 years old.

[9]In January 2024, the Defendant refused SH’s asylum claim. Her s.95 support has continued pursuant to s.94(5) IAA 1999 and a concession for families.

[10]The Finchley Hotel has around 88 bedrooms. Until around August 2024, the Defendant’s contractor was using it only for asylum seeking families but it now also houses single persons: around half its residents are single adult males. The room allocated to SH and her family has three single beds (two are pushed together), basic furnishings, an ensuitebathroom, a fridge and a small kettle. There is no kitchen area or kitchen-type facilities in the room. There is no table, desk or chair, so the son does his school homework whilst sitting on a bed.

[11]Accommodation at the Finchley Hotel is provided on a fully catered basis, with cooked food being brought into the hotel, re-heated in a kitchen area, and then served to the residents ‘buffet-style’. Communal facilities at the hotel comprise a seated dining area, an outside covered space with seating and tables, two microwaves, a supply of boiling water, and a sink. There is also a laundry room which has four washing machines and four tumble-dryers, which residents can use based on a rota arrangement.

[12]The Defendant has made various attempts to move SH and her family to DA. The first of these was in May 2024, by which time the family had already been at the Finchley Hotel for over 16 months. The DA properties proposed by the Defendant have been in Wales or other locations far from London. As explained further below, SH has declined to be moved to those locations. She contends that she requires accommodation within 1 hour’s travel distance by public transport from Finchley, north London so that she can continue to receive support from an individual (anonymised as “N”). N is a Kurdish lady who has become close friends with SH and who provides SH with a wide range of in-person support, including Kurdish food, childcare, transportation and emotional support.

[13]In May 2025, SH’s solicitors sent the Home Office a report by a consultant psychiatrist, Dr Pethania, which detailed SH’s vulnerabilities (which included her suffering from mixed anxiety and depressive disorder) and noted the importance of SH’s local support network to her mental health. The Defendant’s medical advisors have considered that report but have taken the view that SH’s mental health circumstances are not such as to require that she be provided with DA in or close to London. The difference of view between SH and the Defendant as to whether accommodation far outside London would be “adequate” for her appears to be a continuing factor in her remaining at the Finchley Hotel rather than being moved to DA.

Accommodation provided for BWO and her family

[14]BWO is a single Albanian woman who arrived in the UK in July 2022 with her two sons (who were, at the time, aged 17 years and 12 years respectively). She claimed asylum based on her being a victim of modern slavery. In January 2024, she received a positive ‘reasonable grounds’ decision relating to her claim to have been trafficked. In July 2024, she received a positive ‘conclusive grounds’ decision. The fact that she is a victim of modern slavery and/or trafficking is therefore accepted by the Defendant.

[15]BWO was, at the time when she arrived in the UK, suffering from pain in one of her knees due to an injury incurred as part of her history of being trafficked. She has subsequently been diagnosed as suffering from anxiety, depression, mood disorder and post-traumatic stress disorder.

[16]Between July 2022 and July 2025, the Defendant accommodated BWO and her sons at the Best Western Plus Croydon hotel (“the Croydon Hotel”). The Croydon Hotel was repurposed exclusively for asylum accommodation in August 2022, shortly after BWO began being accommodated there. It has 107 bedrooms.

[17]BWO and her sons were accommodated at the Croydon Hotel in an ensuite hotel room containing 2 beds (1 double, 1 single). BWO slept in the double bed with the younger of her two sons, whilst the elder son slept in the single bed. The other furniture in the room comprised a small table with a chair and a small wardrobe. There was also a small kitchenette area in the room, including a sink and basic cooking facilities.

[18]The family’s accommodation at the Croydon Hotel was on a fully catered basis. The communal areas of the hotel included a food serving area (with no dining tables) where breakfast was served ‘buffet style’. For lunch and dinner, ‘ready meals’ were reheated in microwaves and served in plastic containers. The communal areas also included some chairs, café-style tables, and soft seating. Most residents ate their meals in their rooms using disposable cutlery. A once-weekly laundry service was provided.

[19]In February 2024, the Defendant proposed dispersal to Wales. BWO declined this, due to her awaiting NHS knee surgery and having family ties in London. She provided the Defendant with medical evidence of her conditions. In March 2024, the Defendant considered BWO’s request for London accommodation and refused it.

[20]In late 2024 (over 2 years after their arrival), the Croydon Hotel offered to move her older son (who was by then over 18 years old) to a separate bedroom where he would share with one or more other, unrelated, persons. BWO declined this, due to safety and personal care concerns. BWO underwent her long-awaited knee surgery in January 2025. She had to use crutches for walking during her post-surgery recovery.

[21]By mid-May 2025, BWO was accepted for specialist treatment by the Helen Bamber Foundation (a charity providing specialist therapy for victims of torture). Following solicitor pre-action correspondence, the Defendant agreed to London dispersal at the end of May 2025. On 26 June 2025, judicial review proceedings were issued seeking urgent interim relief in circumstances where the family were still being accommodated in the room at the Croydon Hotel. The family were moved to DA accommodation in the London area in July 2025. By that time, her sons were aged 20 and 15 respectively. BWO was granted refugee status later the same month.

PROCEDURAL HISTORY AND PERMISSION TO APPLY FOR JUDICIAL REVIEW

[22]Permission to apply for judicial review was granted for SH’s claim in July 2025 by Deputy High Court Judge Hugh Southey KC.

[23]BWO had already been moved to DA by the time the Defendant filed her Summary Grounds of Defence in BWO’s claim. The Defendant’s Summary Grounds took the position that permission to apply for judicial review should be refused as the judicial review claim had become academic and, although BWO’s Ground 4 pursued a remedy in damages for breach of Convention Rights under the Human Rights Act 1998 (“HRA 1998”), that aspect of the proceedings could instead be pursued in the county court. In August 2025, Sweeting J ordered a ‘rolled-up hearing’ for determining permission to apply for judicial review and, if permission granted, the substantive claim.

[24]As I indicated at the hearing, I grant permission to apply for judicial review in respect of all grounds of challenge in BWO’s claim. In my view, the issues of law raised by BWO’s grounds of challenge (including particularly the issue as to the applicability of Part X of the HA 1985) are ones which it is convenient and appropriate to determine in the present proceedings alongside SH’s claim. Those issues have not become entirely academic for BWO as they may, to an extent, bear upon the analysis of her claim for damages for breach of Convention Rights. Further, I have found it of assistance to consider the issue as to the applicability of Part X of the HA 1985 against the background of two factual scenarios, rather than the single factual scenario supplied by SH’s case. I note that, even where a judicial review claim has become academic, the Court has a discretion to grant permission to apply for judicial review where it is convenient and just to do so in order to determine issues of law that are likely to be of significance to other cases or persons. In the present cases, the continuation of BWO’s claim after the time when she ceased to be accommodated at the Croydon Hotel has not generated substantial additional work or costs for the Defendant beyond that which would anyway have been incurred for responding to SH’s claim.

[25]Part X of the HA 1985 regulates “overcrowding” in “dwellings”. “Overcrowding” is defined in s.324:

“A dwelling is overcrowded for the purposes of this Part when the number of persons sleeping in the dwelling is such as to contravene– (a) the standard specified in section 325 (the room standard), or (b) the standard specified in section 326 (the space standard).”

[26]Pursuant to s.327, it is (subject to certain exceptions) an offence for an occupier of a dwelling to cause or permit it to be overcrowded. S.331 also imposes criminal liability on landlords who cause or permit a dwelling to be overcrowded. S.338 empowers local housing authorities to serve notices on occupiers requiring them to abate overcrowding. Pursuant to s.339, the power to prosecute for offences under Part X is reserved to local housing authorities.

[27]The term “dwelling” is defined in s.343 as meaning “premises used or suitable for use as a separate dwelling”. That definition is, to an extent, circular in that it itself uses the term “dwelling”.

[28]The Claimants each contend that the hotel room assigned to them was a “dwelling”, since it was their home for a prolonged period and constituted living accommodation that they did not share with other households. Ms Leventhal KC, who appeared on behalf of the Claimants, argued that the word “dwelling” simply means an individual or a family’s home.

[29]In support of that submission, she relied on R (N) v Lewisham LBC

[2014] UKSC 62

, [2015] A.C. 1259 (“N v Lewisham”). That was a case in which the Supreme Court was called upon to interpret the term “dwelling” as used in the Protection from Eviction Act 1977 (“PEA 1977”) and to apply it to accommodation provided by a local housing authority, under a temporary licence, to a homeless person pursuant to the authority’s interim duty under s.188(1) of the Housing Act 1996 (“Interim Duty Accommodation”).

[30]Ms Leventhal also relied on an earlier decision of the House of Lords, Uratemp Ventures Ltd v Collins

[2001] UKHL 43

(“Uratemp”). In that case, the House of Lords held that a hotel room that had, for a number of years, been rented to a man, and for whom it had been his home, could potentially be found by a trial judge to have been “let as a separate dwelling” and thus to have given rise to an assured tenancy under s.1(1) of the Housing Act 1988. In so holding, their Lordships rejected an analysis of prior authorities as having established that a property could not be found to be a “separate dwelling” if it did not have its own cooking facilities.

[31]I accept that the term “dwelling”, as used in Part X of the HA 1985, should be interpreted with the assistance of case-law showing how, over many years, that term has been used in the various Housing Acts and Rent Acts and interpreted by the courts. It is reasonable to assume, at least as a starting point, that Parliament has used the word “dwelling” in housing legislation with a consistent meaning, unless the context or underlying legislative policy points clearly in another direction (which, in my view, is not the case here). I also accept that, in principle, a hotel room is capable of being a “separate dwelling” (as per Uratemp), and that the fact that a hotel room does not have its own cooking facilities (as is the case for SH’s room at the Finchley Hotel) is not a bar to a finding that the room is being used as a “separate dwelling”.

[32]Equally, the fact that a hotel room is capable ofbeing used as a separate dwelling cannot mean that every hotel room is a “dwelling” for the purposes of Part X of the HA 1985. Otherwise, an absurd result would obtain whereby every hotel room would be subject to the statutory overcrowding regime: a result that Parliament cannot have intended. The definition of “dwelling” in s.343 of that Act refers to “premises used or suitable for use as a separate dwelling” (underlining supplied). There are some types of premises, such as self-contained residential flats and houses, that are obviously suitable for use as separate dwellings and will therefore be captured as “dwellings” regardless of how they are being used. A hotel room is not such a premises. A hotel room may, however, constitute a “dwelling” where it is, as a matter of fact, being “used … as a dwelling”. In a case relating to a hotel room, it is therefore necessary to consider the use to which the room is being put and, in particular, whether that use comes within the concept of use as a “dwelling”, as that concept has been elucidated by the Supreme Court in N v Lewisham.

[33]In N v Lewisham, Lord Hodge, with whom the majority of the panel agreed, stated as follows:

“[26] The word dwelling is not a technical word with a precise scientific meaning. Nor does it have a fixed meaning. Words such as “live at”, “reside” and “dwell” are ordinary words of the English language, as is home. It is clear, as the respondent local authorities submitted, that the word dwelling in the phrase, let as a dwelling has been used in PEA 1977 in the same sense as that word was used in the phrase let as a separate dwelling in the Rent Acts. … In my view there is no strict hierarchy in terms of settled occupation between the words “live at”, “reside” and “dwell” and much may depend on the context in which the words are used. But there are nuances and as a general rule I agree … that dwelling suggests a greater degree of settled occupation than residence.” “[30] … The court, in deciding whether the accommodation involved in these appeals falls within the meaning of dwelling in section 3(1) of PEA 1977, must construe the terms of the relevant licences in the context of the applicable provisions of the 1996 Act. Section 188(1) imposes on the local housing authority a duty with a low threshold. It arises if the authority has reason to believe that the applicant may be homeless, eligible for assistance and have a priority need. The duty is to secure that accommodation is available for his or her occupation pending the authority’s section 184 decision. The authority is not under a duty to provide a particular form of accommodation or to provide the same accommodation for the applicant throughout the period pending its decision. It can require the applicant to transfer from one address to another more than once during that period. The duty to secure short term accommodation under section 190(2), in order to give someone who is found to be homeless intentionally a reasonable opportunity to secure alternative accommodation for occupation, is similarly limited. So too are the powers under sections 188(3) and 204(4) to provide accommodation pending a decision on a review or pending an appeal.” “[32] The licences granted to the applicants in these cases are consistent with the limited and short term nature of the authority’s duty. Lewisham’s licence to JN was an offer of interim nightly paid accommodation for about two weeks. … JN also undertook in the licence that only the persons named in her application for assistance would occupy the accommodation. Newham’s licence to FI was for interim accommodation on a day-to-day basis while it decided whether it had a duty to provide her with re-housing. Newham explained that it had entered into arrangements with accommodation providers to provide self-contained accommodation and hotel accommodation which it let on a day-to-day basis. …” “[33] In my view there are a number of features that militate against such licences being licences to occupy premises as a dwelling. First, there is the statutory context of the licence in the 1996 Act, namely the provision by the local housing authority to a homeless person of short term accommodation at one or more locations and in one or more forms of accommodation pending the section 184 decision, the outcome of a review or appeal, or the expiry of the reasonable period under section 190(2). The statutory duty in section 188 of the 1996 Act is to secure accommodation for the applicant, not necessarily at one location, for a short and determinate period. Most significantly, a person who is given temporary accommodation under Part VII of the 1996 Act does not cease to be homeless. … [34] Secondly, consistently with that statutory regime, each licence is a day-to-day or nightly licence which recognises that the authority may require the applicant to transfer to alternative accommodation at short notice. The licence in each case confers private law rights in relation to the property to which it relates, but the licence must be construed and the nature of those rights must be assessed in the context of the authority’s duties under the 1996 Act. [35] Thirdly, the imposition of the requirements of PEA 1977 would significantly hamper the operation by the authorities of the statutory scheme under the 1996 Act and its predecessor Acts. An authority would not be able to transfer an applicant from one location to another without either his or her consent or, alternatively, the obtaining of a court order. The authority, while awaiting the court order for possession, would have to provide accommodation to someone about whom it had made an adverse section 184 decision and to whom it had already given a reasonable opportunity to obtain alternative accommodation, thereby tying up scarce housing resources. In a time of strained public finances this may deprive other applicants who may have priority need of suitable accommodation and also restrict the authority’s ability to provide accommodation where it has a discretion to do so, as under sections 188(3) and 204(4) of the 1996 Act. … [36] In my view the policy considerations of the third point would not by themselves be determinative, but the features in combination, the legislative and factual context of licences, point to the conclusion that the temporary accommodation, which the authority provides in performance of its duties under section 188 of the 1996 Act, is not provided as a dwelling for the purpose of PEA 1977.”

[34]If (as I think right) I should, when deciding whether the hotel rooms where the Claimants have been accommodated, were being used as “dwellings”, be guided by Lord Hodge’s analysis in N v Lewisham, the conclusion to which this leads me is that the hotel rooms were not “dwellings”. In my view, a hotel room provided as IA for an asylum seeker and her family under s.95 IAA 1999 is not a “dwelling” for the purposes of Part X of the HA 1985. That is so for the following reasons:(1) As with Interim Duty Accommodation, s.95 accommodation (and, a fortiori, s.95 accommodation provided by way of IA in a hotel room), far from providing “a greater degree of settled occupation than residence”, is inherently and intentionally temporary. The Defendant provides such accommodation pursuant to a statutory duty to ameliorate destitution. Plainly, a single asylum seeker who is being accommodated in a bed in a hotel room which he is required to share with another, unrelated, asylum seeker, and could be moved to another room in the hotel without prior notice, does not enjoy something akin to “settled occupation” of the allocated room. Asylum seeker families may, in practice, have a greater subjective sense of the hotel room that has been allocated to them being their ‘home’ because they are not sharing it with unrelated people. But both the legal basis on which the room is provided to them, and the intention of the Defendant and her contractors when providing it, point away from the room being “used” to provide the family with a ‘home’ (rather than merely temporary accommodation). Accommodation by way of use of the hotel room is provided on a night-by-night basis. Asylum seekers are not told, when being assigned a room, that they will be permitted to reside there for any fixed or minimum period. The Defendant can withdraw the family’s use of the room at any time, whether by requiring them to move to a different room in the same hotel, or to move to a different hotel, or to transfer to DA, or (if the family is no longer entitled to s.95 accommodation) to leave s.95 accommodation altogether. When the Defendant or her contractors assign a hotel room to a family, they are not using the room to provide a “dwelling” for the family but are merely providing “accommodation” the nature of which is inherently temporary and unsettled.

(2) S.95 accommodation is provided under a statutory scheme which itself defines the standards to be met. Those standards include the requirement that the accommodation be “adequate”. It is unlikely that Parliament intended that the provision of such accommodation should also be subject to additional requirements arising under general housing legislation directed at regulating overcrowding of “dwellings”. Nor is extension of such legislation to asylum hotels necessary for ensuring that destitute asylum seekers are provided with accommodation that is “adequate” for them.

(3) Just as the status of being “homeless” continues to apply to persons in Interim Duty Accommodation, asylum seekers who are being accommodated in s.95 accommodation do not cease to lack “adequate accommodation or any means of obtaining it”, and thus “to be destitute or to be likely to become destitute”, within the meaning of s.95 IAA 1999. On the contrary, they continue to qualify for accommodation precisely because they continue to come within that description.

(4) I acknowledge that Interim Duty Accommodation is usually for a relatively short period, whereas some asylum seekers are remaining in hotel accommodation under ss.95-96 IAA 1999 for many months or even several years (as the facts of the Claimants’ cases illustrate). Lord Hodge noted, at [31], that, “[i]n some cases the [housing] authority can reach a section 184 decision [on the homeless person’s entitlement to housing assistance] very quickly”, whereas “[o]ther cases require more complex enquiries”. Lord Hodge did not suggest that the duration for which the homeless person has remained in the hotel room or other Interim Duty Accommodation placement could itself be determinative of whether that premises had become that person’s “dwelling”. He did not say, for example, that there was a certain period beyond which an Interim Duty Accommodation placement should thereafter be recognised as constituting use of the accommodation to provide that person with a degree of settled occupation sufficient to make it his “dwelling”. In my view, whilst the duration for which a person has been living and sleeping in a hotel room or other premises may be of some relevance when assessing whether it is being used as his “dwelling”, a more important factor is the basis on which the accommodation is being provided to him. Where a public authority is providing a hotel room to a family without any commitment to continue making it available for a fixed or minimum period, without charging the family rent, without any kind of legal right to occupy beyond that of a mere licensees, and on the basis that the accommodation is a temporary interim measure, the hotel room cannot properly be said to be the family’s “dwelling”, even after they have remained living in that room for a prolonged period.

(5) Lord Hodge, at [48]-[49], expressly referred to accommodation provided under Part VI of the IAA 1999, noting that such accommodation could be for “prolonged periods”, and that such accommodation is expressly excluded from the scope of the PEA 1977 (by s.3A(7A), a provision inserted by the IAA 1999). Lord Hodge did not regard that express exclusion as indicating that, absent the exclusion, accommodation provided under Part VI IAA 1999 would be “let as a dwelling” within the meaning of s.3 PEA 1977. Rather, he regarded the exclusion as having been inserted into the PEA 1977 “for the avoidance of doubt”.

(6) Imposition of the requirements of Part X of the HA 1985 on hotel accommodation provided for asylum seekers could significantly hamper the Defendant in meeting asylum seekers’ basic needs under ss.95-96 IAA 1999. The numbers of asylum seekers entering the UK can fluctuate significantly from one time to another and for a wide variety of reasons, including weather conditions (which are relevant to the number of people travelling to the United Kingdom in small boats), or sudden events overseas leading to people being put in fear or displaced. The Defendant requires a degree of flexibility in how she uses the hotel rooms and other accommodation resources available to her for meeting aggregate need for asylum accommodation from time to time. The hampering of the Defendant could be greater still if an interpretation of the term “dwelling” as including hotel rooms used for s.95 accommodation were then read across to other housing legislation that applies to “dwellings”, potentially generating procedural or other rights for the residents which would further limit her flexibility in how she uses available accommodation resources to meet aggregate need.

(7) I recognise that the policy underlying Part X of the HA 1985 (or, to put it another way, the “mischief” to which that legislation is addressed) is different from the policy underlying the PEA 1977. Part X HA 1985 is not concerned with protecting occupiers of premises from being evicted without any court process, but rather with regulating overcrowding. Overcrowding of dwellings is a social ill that may be deleterious both to the people living in the dwelling and to the local community. Those ills may arise in respect of asylum seekers being accommodated under s.95 IAA 1999 regardless of whether the asylum seekers living in the premises have a tenancy or any other legal entitlement to occupy. In my view, however, this factor alone is not sufficient to justify my declining to be guided by the approach in N v Lewisham, given that Parliament’s focus, when enacting Part X HA 1985, is likely to have been the overcrowding of ordinary residential properties, such as flats and houses. In 1985, there was no widespread use of hotel rooms as temporary accommodation for asylum seekers for prolonged periods, and therefore the potential for ‘overcrowding’ of such accommodation is unlikely to have been contemplated by Parliament at that time as being within the scope of that which it was seeking to regulate by the legislation.

[35]The analysis set out above is not in tension with Uratemp. Their Lordships’ conclusion in that case was not that the hotel room was the man’s “dwelling”, but rather that it was, in principle, capable of being a dwelling(notwithstanding the absence of cooking facilities) and would be a dwelling if he was found by the trial judge to occupy the room pursuant to a tenancy. In my view, it is not surprising that a person who was living in a hotel room, as his main or only residence, pursuant to a right to occupy granted to him under a tenancy would be found to have enjoyed a degree of “settled occupation” sufficient for the room to be recognised as his “dwelling”. The Claimants, in contrast, had no tenancy or other right to occupy the hotel rooms, but were able to live there only for as long as the Defendant’s contractor permitted them to do so as mere licensees.

[36]For all those reasons, the Claimants have not persuaded me that their hotel rooms were “dwellings” for the purposes of Part X HA 1985 and it follows that this element of their case fails.

[37]The Claimants challenge the lawfulness of two of the Defendant’s guidance/policy documents (together, “the Policy Documents”) setting out her approach to providing accommodation for asylum seekers:(1) The first is the “Inspection Guidance for Initial Accommodation and Dispersal Accommodation (v.1, 20 May 2024)” (“the Inspection Guidance”) concerning overcrowding assessment in s.95 IA and DA. As its name suggests, the Inspection Guidance was an internal document intended to provide guidance to officials carrying out inspections of asylum accommodation.

(2) The second is the “Space standards and inventory provision in contingency accommodation” (“the Space Standards Paper”). That document is concerned specifically with limiting overcrowding in s.95 IA including hotels. (The term “contingency accommodation” is effectively synonymous with IA.) The Space Standards Paper is undated but the Defendant’s evidence is that it was issued to contracted IA providers in June 2024. It will also have been relied upon by the Defendant’s officials when dealing with such providers and when inspecting hotel accommodation.

[38]The Claimants’ complaint regarding the Policy Documents is essentially that they refer to the standards laid down in Part X HA 1985 for identifying overcrowding but misstate those standards or how they are to be applied. This is a complaint which, at least in my view, is relevant to the Space Standards Paper, but not to the Inspection Guidance. The Inspection Guidance contains a section entitled “Space Standards and Overcrowding”. That section, consistent with the document’s relevance to all forms of IA and DA, provides a ‘high level’ view, starting with the unobjectionable observation that “[a]sylum accommodation is required to comply with the same space standards as other forms of accommodation”. It does not deal directly with whether, or in what circumstances, the space standards apply to particular types of accommodation such as hotel rooms. At the hearing, the Claimants’ submissions focussed upon the Space Standards Paper.

[39]The complaint about the Space Standards Paper (which relates specifically to IA) is essentially that it advises the defendant’s officials that a hotel’s communal living areas can be taken into account when measuring the hotel accommodation provided to an individual or household, for assessing whether the overcrowding standards are met. The Space Standards Paper also sets out methodologies for doing this. As the Claimants correctly observe, the overcrowding standards in Part X HA 1985 apply on a dwelling-by-dwelling basis, by reference to the number of the rooms, and the total floorspace of the rooms, in that dwelling which are “available as sleeping accommodation” (i.e. bedrooms, together with living rooms that could be used as bedrooms). Part X HA 1985 does not envisage or permit the taking into account of communal areas of a building in which the dwelling is situated and which the people living in the dwelling may choose to access.

[40]Had I found that Part X HA 1985 was applicable to the hotel rooms in which the Claimants and their families have been accommodated, the Defendant would, in my view, have had no good answer to the Claimants’ complaint that the Space Standards Paper was unlawful. That is because, if a hotel room allocated to an asylum seeker family was properly to be regarded as a “dwelling” for the purposes Part X HA 1985, then it would follow that the overcrowding standards specified in that legislation were directly applicable to such a hotel room. The Space Standards Paper, in advising the Defendant’s officials to apply the overcrowding standards using methodologies that purported to take account of communal areas, would have been based on an erroneous understanding of the law, and/or would be intrinsically liable to cause contraventions of the standards in Part X HA 1985. (Criminal liability for breaching those standards attaches to “occupiers” and “landlords”. In my view, the concept of “occupier” in Part X HA 1985 would include the Defendant and/or her relevant contractors, depending on which of them controls the number of people, and which people, live in each hotel room.)

[41]As set out in the previous section of this judgment, however, I have found that the hotel rooms in which the Claimants and their families have been accommodated were not “dwellings” and, accordingly, that Part X HA 1985 was not applicable to them. This means that the Space Standards Paper, insofar as it specifies overcrowding standards for hotel accommodation, is specifying extra-statutory requirements, i.e. specific requirements that are not imposed by Part X HA 1985. This is important in terms of providing the lens through which I must examine the Space Standards Paper for ascertaining its lawfulness.

[42]The standards specified in Part X HA 1985 are not, however, rendered entirely irrelevant by my conclusion that they do not apply to the hotel rooms used as s.95 accommodation. That is because hotel accommodation must, pursuant to ss.95-96 IAA 1999, meet the standard of being “adequate”; and the standards specified in Part X HA 1985 may constitute a useful reference point when considering whether hotel accommodation is too cramped to meet that standard. Moreover, the content of the Space Standards Paper shows that the Defendant has, in determining the standards and methodologies set out therein, deliberately sought to achieve “equivalence” with the standards in Part X HA 1985. That being so, the Court is entitled to assess whether, when so doing, she was proceeding on the basis of a legally erroneous understanding of the standards specified in that legislation. The Space Standards Paper

[43]The Space Standards Paper begins with the following text:

“It is legally untested what statutory space standards (if any) apply in hotel accommodation for asylum seekers. However, the Home Office has adopted and enforces a minimum standard that has been designed to achieve equivalence with the standard in the Housing Act 1985. The 1985 Act standard is set by Parliament and the Home Office does not believe that asylum seekers should be entitled to any more or less space than anyone else. This standard is intended to ensure that all of our service users have adequate space and there can be no issue of overcrowding. There is no exact science to measuring a room, and there are differences in practice between local authorities as to how they assess the spaciousness of accommodation units in their licensing and enforcement activities. This Home Office standard should be considered a baseline which will broadly accord with the expectations of most local authorities, notwithstanding that the statutory standard may be inapplicable and unenforceable. Providers are however expected to engage constructively with individual local authorities in the event of any difference of approach. Providers may of course refer to the Home Office if agreement with a local authority is elusive.”

[44]In my view, it would not be fair to read the word “equivalence”, as used in the above-quoted text, as meaning that the Defendant was seeking to replicate, for hotel accommodation, the minimum floorspace and rooms standards specified in respect of “dwellings” by Part X HA 1985. As the Defendant’s Head of Contract Assurance, Mr Brows, explained in his witness evidence, the policy underlying the Space Standards Paper was to specify, in relation to hotel accommodation, space standards for hotel accommodation (i.e. accommodation in buildings that generally have communal dining areas and other shared facilities) which afforded asylum seekers broadly equivalent space to the minimum standards specified by Part X in respect of “separate dwellings” (which typically do not benefit from access to any shared facilities). That is why the Space Standards Paper did not replicate the methodologies in Part X but instead set out adapted versions of those methodologies which, as well as measuring the hotel room, also took some account of the communal areas in the hotel.

[45]Having considered the Space Standards Paper together with Mr Brows’ evidence, I have not identified any proper basis on which I could find the Space Standards Paper to be unlawful. As Part X does not apply to hotel accommodation, the Defendant was not obliged to replicate the standards or methodologies in Part X. Having decided to adopt, for hotel accommodation, adapted versions of the standards and methodologies in Part X, with a view to achieving “equivalence” with those standards, the Defendant had a discretion as to the specific adaptations she made for that purpose and the degree of such adaptations. In this context, the legal standard I must apply for assessing the lawfulness of the adaptations she made is the rationality standard. The Claimants have not submitted that the adaptations were irrational, and nor do I see any basis for finding them to be irrational.

[46]On behalf of the Claimants, Ms Leventhal submitted, effectively as a ‘fallback’ argument, that the Space Standards Paper was unlawful because the adapted methodologies lacked clarity, certainty or precision as to how the communal areas were to be measured and taken into account when deciding how many people could be accommodated in a hotel room. This lack of clarity was, she argued, a breach of the ‘duty of prescription’ explained by Fordham J in R (ZLL) v Secretary of State for Communities and Local Government

[2022] EWHC 85 (Admin)

(“ZLL”), at [7(4)-(5)]. For two reasons, I do not consider the ‘fallback’ argument to have merit:(1) First, I do not agree that the methodologies set out in the Space Standards Paper are unclear. The principles to be applied are clearly set out. The Space Standards Paper (which, as I have explained, sets out extra-statutory requirements) is guidance, not legislation. It does not purport to provide a precise methodology for definitively determining the number of people who may be allocated a particular hotel room. Rather, the methodologies are set out in terms of the principles to be applied, whilst expressly making clear that “it is appropriate to exercise a degree of discretion” and that there is “some room for interpretation”. In my view, there is nothing unlawful in guidance being provided in these terms.

(2) Secondly, this is not a context in which the ‘duty of prescription’ applies. As Fordham J explained in ZLL, the duty arises at common law in contexts where the rule of law, and/or sound administration, requires that a public authority entrusted with a discretionary power adopt prescriptive guidance, so as to ensure that the discretion is exercised in a consistent manner and not arbitrarily. The present context, in contrast, does not involve the Defendant exercising a discretionary power. Rather, she is simply setting out the extra-statutory principles and approach she applies when allocating s.95 accommodation. In my view, neither the rule of law, nor sound administration, requires the Defendant to craft precise methodologies which, like a pocket calculator, produce definitive answers.

[47]It follows that the Claimants’ challenge to the Space Standards Paper fails.

[48]It is, however, a point of concern to the Court that the Defendant does not appear to have had any documented policy or guidance on the minimum amount of space that should be provided for families in hotel accommodation, prior to the Space Standards Paper circulated in June 2024. It is thus unclear what, if any, standard the Defendant was applying prior to June 2024 (during which time the Claimants and their families were already in hotel accommodation). The lack of a specified minimum standard had the potential to contribute to accommodation for families falling, in some cases, below the standard of “adequate”. Whether this happened in the Claimants’ cases is a matter for my assessment, further below, when I am considering whether, and during what periods, their accommodation fell below that standard. Belated disclosure

[49]At the end of the last day of the hearing, the Defendant’s Leading Counsel, Ms Patry KC, properly informed me that the Defendant’s officials had belatedly identified a document that had not previously been disclosed. She sought, and was granted, time to consider the impact of the document on the proceedings and to provide supplementary witness evidence.

[50]The document in question was entitled “Standards in hotels for single adults (n.b. requirements for families are more nuanced” (“the Single Adults Paper”) and was drafted by Mr Brows sometime in 2023. It is broadly similar in format to the Space Standards Paper issued in June 2024 and likewise contains an adapted version of the standards and methodologies in Part X HA 1985. It opened with the following text:

“Whilst it is legally unclear whether the space standards in the Housing Act 1985 strictly apply to hotels used for asylum seekers, we have consistently taken the position with providers that they must abide by them, and there would be very considerable risk in not doing so.”

[51]That text was in tension with the adapted standards set out below it, given that those adapted standards took account of communal areas. It appears that the underlying intention was to produce a set of standards which were broadly “equivalent” to those in Part X HA 1985 but not to replicate them.

[52]The Defendant has also disclosed a letter dated 16 August 2022 from her Department to one of her asylum accommodation provider contractors, Clearsprings Ready Homes, which stated:

“We have recently stepped up our inspections activity and have been finding further examples of households who have been statutorily overcrowded. The space standards contained in sections 325 and 326 of the Housing Act 1985 are not at all generous by modern standards, and represent the absolute minimum space that a landlord can provide for a household without committing a criminal offence. Landlords are also required by section 333 of that Act to notify the relevant local authority of any overcrowding that does occur in their properties, however that provision has arisen. [Asylum accommodation support contract] providers are of course required to comply with these provisions.”

[53]It thus appears that, at least at the time of that letter, the Defendant was proceeding on the understanding that the standards in Part X HA 1985 did – or, at least, might well – apply to s.95 accommodation in hotels, and that the Defendant was expecting asylum accommodation providers to comply with those standards.

[54]It is regrettable that these documents were not disclosed earlier in the proceedings, pursuant to the duty of candour. As one of the Defendant’s witnesses, Mr Brows, was the author of the Single Adults Paper, he was aware of the existence of that document. It appears that too narrow a view was being taken earlier in the proceedings of what documents ought to be disclosed. Ultimately, however, I have found the belatedly disclosed documents of limited relevance to the issues I have to decide, given that:(a) the applicability of the Part X standards to the Claimants’ hotel accommodation was a matter for me to determine, regardless of what the Defendant’s view may have been in 2022 or 2023; and

(b) the question as to whether the hotel accommodation fell below the standard of “adequate” is likewise a matter for me to decide based on my assessment of the facts.

IS THE FINCHLEY HOTEL (WHERE SH HAS BEEN ACCOMMODATED) A HMO?

[55]Part II of the HA 2004 establishes a licensing regime for HMOs. Local housing authorities are the bodies responsible for granting licences and for enforcing compliance with the regime in their areas. Mandatory conditions to be included in such licences include a minimum floor area for any room of a HMO used as sleeping accommodation, to avoid overcrowding: s.67(3), read with Sch.4, para.1(a).

[56]Subject to certain exceptions, all HMOs are required to be licensed as such. Pursuant to s.77, the criteria for identifying a building, or part of a building, as being a HMO is to be found by looking at ss.254-259. Pursuant to s.72 HA 2004, a person who has control of, or is managing, a HMO which is required to be licensed, but is not so licensed, commits an offence.

[57]SH contends that the Finchley Hotel is a HMO but has not been licensed as such. Her basis for alleging that the Finchley Hotel is a HMO is that it satisfies all elements of the “standard test” in s.254(2), which provides as follows:

“A building or a part of a building meets the standard test if— (a) it consists of one or more units of living accommodation not consisting of a self-contained flat or flats; (b) the living accommodation is occupied by persons who do not form a single household (see section 258); (c) the living accommodation is occupied by those persons as their only or main residence or they are to be treated as so occupying it (see section 259); (d) their occupation of the living accommodation constitutes the only use of that accommodation; (e) rents are payable or other consideration is to be provided in respect of at least one of those persons' occupation of the living accommodation; and (f) two or more of the households who occupy the living accommodation share one or more basic amenities or the living accommodation is lacking in one or more basic amenities.”

[58]The requirement in limb (c) that the building, or part of a building, be “occupied by those persons as their only or main residence or they are to be treated as so occupying it” is satisfied where the persons living in the accommodation are asylum seekers being accommodated under s.95. Under reg.5(1)(b) of the Licensing and Management of HMO and Other Houses (Miscellaneous Provisions) (England) Regulations 2006, which were made pursuant to s.254(2)(c) HA 2004, a person is deemed as occupying a building, or part of a building, as their “only or main residence” if they are an asylum seeker, or a dependant of such, being provided with accommodation under s.95 IAA 1999.

[59]I have some doubt, however, as to whether limb (d) of the “standard test” is satisfied by the Finchley Hotel. Although the Finchley Hotel’s residents are currently all asylum seekers being accommodated by the Defendant, its fundamental nature is still that of a hotel, and it could potentially revert to accommodating ordinary hotel guests in the future. Given this context, it is possible that the uses of the living accommodation at the hotel are not, in fact, limited to occupation by persons “as their only or main residence” but also include some element of alternative use. It may be, for example, that the uses of the hotel’s “living accommodation” includes some use for reception/administration services, housekeeping services, and/or warming up and serving meals on a centralised basis, and that such usage could properly be said to go beyond the scope of use by persons “as their only or main residence”. Such an analysis could, in my view, fairly be said to be consistent with producing a common sense result. In that regard, it seems to me unlikely that Parliament, when legislating for the regulation of HMOs by way of the HA 2004, had in mind accommodation being provided in hotels on a fully catered basis.

[60]As to limb (f) of the test, the term “basic amenities”, which appears in that limb, is defined in s.254(8) as meaning “(a) a toilet, (b) personal washing facilities, or (c) cooking facilities”. SH contends that the Finchley Hotel satisfies limb (f) because, although her hotel room has its own toilet and washing facilities, her room does not have its own “cooking facilities” and nor are communal “cooking facilities” available. The Defendant, in contrast, contends that the Finchley Hotel does have “cooking facilities”, as there are microwaves used for warming up food that has been brought from outside the hotel.

[61]I am puzzled by the parties’ focus on the existence or otherwise of “cooking facilities” at the Finchley Hotel, given that it appears that some ensuite rooms are allocated to be shared by more than one adult. Given that some rooms are shared, toilets and personal washing facilities are likely to be being shared between people who are not part of the same “household” (as defined in s.258). If that is right, then limb (f) would be satisfied in relation to the Finchley Hotel, regardless of what is the true position in relation to the sharing of, or lack of, “cooking facilities”.

[62]A similar result would appear to obtain in relation to the Croydon Hotel where BWO was being accommodated, even though the rooms there each benefit from their own “basic facilities”. Pursuant to s.254(8), each room would appear to constitute a “self-contained flat”. Pursuant to the “self-contained flat test” in s.254(3), a room that is shared by two or more people who are not part of the same “household” may constitute a HMO.

[63]In my view, it is not necessary for me to come to a firm conclusion as to whether the Finchley Hotel is a HMO and requires a HMO licence. Even if, as SH contends, the Finchley Hotel should be licensed as such, it does not follow that her accommodation at that hotel was not “adequate” as required by s.95 IAA 1999 or that any other duty to her has been breached. If SH believes that the Finchley Hotel is operating as an unlicensed HMO, then it is open to SH to report her concerns to the local housing authority. It would then be the responsibility of that authority (subject to its discretion as to administrative prioritisation of its own resources) to investigate the concerns, ascertain the relevant facts, and take whatever enforcement or other action it considers appropriate. The local authority would need, for example, to identify the uses of the “living accommodation” at the hotel, in order properly to determine whether limb (d) of the “standard test” is met.

[64]As it is not necessary for me to determine whether the Finchley Hotel is operating as a HMO without a licence, it would, I think, be wrong for me to express a concluded view on that matter. As noted above, a person who has control of, or is managing, a HMO which is required to be licensed, but is not so licensed, commits an offence. I should be very slow to make findings that would amount, or come very close, to finding that persons who are not before me in these proceedings, and who have had no opportunity to make submissions to me, have committed criminal offences, even though such findings would not be binding on them. It would be wrong to needlessly prejudice any enforcement proceedings that might by brought by the Finchley Hotel’s local authority – or by any other local authority against any other hotel being used for accommodating asylum seekers – for establishing whether any such establishment requires a HMO licence. General principles

[65]Pursuant to s.96(1)(a) IAA 1999, one of the ways in which the Defendant may provide support for a destitute asylum seeker is providing “accommodation appearing to [her] to be adequate for the needs of the supported person and his dependants”. Her power to provide such support is, in relation to adults, converted into a duty by reg.5(1) of the Asylum Seekers (Reception Conditions) Regulations 2005 (“the ASRC Regs 2005”). Similar provision is made in relation to children by s.122 of the IAA 1999.

[66]It is for the Defendant to decide what accommodation provision would be “adequate for the needs of the supported person and his dependants”. The Defendant must, however, take care to ensure that she has identified the relevant needs and to provide accommodation that she rationally considers adequate for meeting those needs. Where the adequacy of the accommodation she has provided is challenged in the courts, the rationality of her decisions will be scrutinised with a degree of intensity that properly reflects the significance of asylum support under ss.95-96 IAA 1999 to the individuals who receive it, including for protecting them from being exposed to conditions that could breach their Convention Rights under the HRA 1998. A rational approach to meeting needs will necessarily take account of any vulnerabilities of the assisted individuals which give rise to needs that are greater or different from those of an average person.

[67]In R (SA) v Secretary of State for the Home Department

[2023] EWHC 1787 (Admin)

(“SA”), at [9]-[10], Fordham J set out a “principled approach” to assessing whether accommodation is “adequate”, which drew together the relevant legal principles:

“[9] As with essential living needs, the question whether adequate accommodation is being provided in discharge of the statutory duty, requires this principled approach. (1) Adequacy must be tested by reference to the needs of those persons to whom the duty is owed, in a context where accommodation is being provided to prevent destitution …. (2) Adequacy must be tested by reference to – and so measured against – the individual circumstances and needs of each relevant individual, including each dependent, having regard to the age of any child …. (3) Adequacy must ensure, as an objective minimum standard, a dignified standard of living, which is adequate for health and is capable of ensuring subsistence …. (4) The evaluative judgment of adequacy of accommodation, carried out for the Home Secretary, must satisfy basic standards of reasonableness (and any other relevant public law grounds) …. (5) These are high thresholds for an asylum seeker to meet …. [10] Adequacy is informed by length of time …. (1) Accommodation may be adequate only in the short-term …, and not adequate on a long-term basis …, becoming unsuitable by reason of the passage of time …. (2) It is necessary to look at the totality of accommodation …, the conditions and how long they are being experienced …. (3) There may also be a change in circumstances or change in needs which mean accommodation is no longer adequate …. (4) It is relevant to consider the prospective picture and the explanation given: the period during which the accommodation was or is “likely to be” occupied …, the “uncertainty” …, whether the “stay was only to be a short one”, and whether those affected were “reliably informed that this was the case, so that they had the comfort of knowing that their stay was finite”.”

[68]Pursuant to reg.4 of the ASRC Regs 2005, when the Defendant is providing support under s.95 IAA 1999 to an asylum seeker or her family member who is a vulnerable person, the Defendant must “take into account the special needs of that asylum seeker or family member”. The specified categories of “vulnerable persons” include minor children, pregnant women, lone parents with minor children, and persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence.

[69]S.55(1) of the Borders, Citizenship and Immigration Act 2009 (“BCIA 2009”) places a positive duty on the Defendant, when she is carrying out certain functions (including the provision of s.95 accommodation), to do so “having regard to the need to safeguard and promote the welfare of children in the United Kingdom”. The Defendant’s duty is expressly extended to ensuring that, where her relevant functions are being discharged by way of services provided by third party contractors, those services are likewise provided having regard to that same need.

[70]None of these duties and requirements is incompatible, in principle, with the prohibition in s.97(2) IAA 1999 on the Defendant having regard to “any preference that the supported person or his dependants (if any) may have as to the locality in which the accommodation is to be provided”. But this prohibition on taking account of (mere) preferences does not obstruct the Defendant from taking into account reasonable requests relating to specific needs. Thus, the Defendant is not prevented from taking account of any specific needs of an asylum seeker or family member which could best, or most easily, be met if accommodation is provided within a certain geographical area. These principles are reflected in the Defendant’s “Allocation of asylum accommodation policy”, which makes clear that accommodation is allocated on a ‘no choice’ basis but also contains requirements for specific needs (including needs giving rise, or relating, to the location of accommodation) to be considered.

[71]In the context of local authorities’ duties to provide accommodation to homeless individuals and families, the Homelessness (Suitability of Accommodation) (England) Order 2003 (“the 2003 Order”) provides that “B&B accommodation” (a term defined in a way that captures, inter alia, hotel accommodation where the family does not have their own cooking facilities) cannot be “suitable” in the cases of pregnant women, or parents with dependant minor children, if continued for longer than 6 weeks. The requirement of “suitable” accommodation is a different, and higher, standard than the standard of “adequate” accommodation under ss.95-96 IAA 1999. The 2003 Order is of no application to s.95 accommodation. On any rational view, however, the accommodation of families including minor children, or pregnant women, in hotel rooms for prolonged periods is likely to have negative impacts on them. In R (DXK) v Secretary of State for the Home Department

[2024] EWHC 579 (Admin)

,[2024] 4 W.L.R. 46, Paul Bowen KC, sitting as a Deputy Judge of the High Court, made, at [41], the following observation regarding pregnant and new mother asylum-seekers and failed asylum-seekers (“PNMAS”):

“… [T]he evidence that long term hotel IA has adverse effects on PNMAS and their infants cannot be disputed by the [Defendant]. Home Office witnesses to the investigation conducted by the [Independent Chief Inspector of Borders and Immigration] acknowledged that the accommodation of young families in an IA was unacceptable given the impact upon service users and the [Defendant] accepted all of the report’s findings …. … [I]n a significant number of cases, long-term accommodation of PNMAS in IA rather than DA is likely to adversely affect the physical and mental health and welfare of pregnant mothers and their unborn and newly born children.”

[72]The Defendant cannot fairly be held responsible for meeting needs of which she has not been made aware. Asylum seekers in s.95 accommodation can be expected to take steps to notify the Defendant of changes in their circumstances, such as pregnancy, and to provide supporting evidence if asked to do so. Further, the Defendant cannot be held responsible for a family continuing to remain in IA in a hotel, in circumstances where she has offered them DA that would have constituted “adequate” accommodation for them, but the offer has not been taken up. Adequacy of the accommodation provided for SH and her family

[73]SH and her family were first accommodated at the Finchley Hotel in mid-December 2022 and that is where they have remained since then. The period from mid-December 2022 to end April 2025

[74]Although the Defendant appears to have taken some steps towards relocating SH and her family to DA in May and July 2024, it appears that no offer of specific accommodation, nor any dispersal notice, was provided to the family until 1 May 2025. It follows that, for the 28 months between mid-December 2022 and the end of April 2025, no DA alternative to IA in the hotel was available to SH. For nearly the whole of that 28-month period, SH was not only sharing the hotel room with her husband and their young school-age child but was also either pregnant or caring for a baby aged between 0 and 19 months.

[75]On any view, 28 months is a very long time for a family to have been living in hotel room accommodation in such circumstances. The question I must ask myself, however, is not whether hotel accommodation was sub-optimal for the family (as it plainly was, compared with living in DA with more space), but rather (as per SA) whether it fell short of providing them with a dignified standard of living, adequate for health and meeting their essential needs. Further, in assessing whether the Defendant failed to meet that standard, it is relevant to consider what information was provided to her as to the family’s circumstances at relevant points in time.

[76]In my view, the evidence presented by SH does not suffice to show that the accommodation provided to her was, throughout all those 28 months, less than adequate for meeting that standard. My reasons are as follows.

[77]First, prior to SH giving birth to her daughter in September 2023, the family comprised only SH, her husband, and a son of 4-6 years of age; and the hotel room was not so small as to be incapable of being “adequate” accommodation for them for any period. Although the space in the room was not generous, there were sufficient beds so that SH’s son could sleep in his own bed, whilst SH and her husband slept in the two single beds pushed together. The family had their own ensuite toilet and personal washing facilities, a fridge, and a kettle for boiling water. Given the son’s young age, it was not inappropriate for SH to share a room with him, including whilst pregnant. If SH required privacy for toileting, changing a post-partum maternity pad, etc., then she could go into the ensuite bathroom. Whilst I have noted the complaint that the son did not have a desk, or any private space, for doing his homework, the amount of homework that a school would set for a child of his age would likely be quite modest.

[78]Secondly, although I have seen evidence that, at around the end of January 2023, SH’s husband mentioned in an asylum interview that SH was around 8 weeks’ pregnant, I accept the Defendant’s evidence that SH did not notify her pregnancy to the Defendant, and provide supporting evidence, using the appropriate channel (namely, the Migrant Help service) until September 2023. By that time, the baby had already been born. In my view, it would not be reasonable to regard the Defendant as having breached a duty to SH in circumstances where SH had not taken the requisite steps for seeking to expedite the provision to her of DA, in view of her pregnancy.

[79]There may, in any event, have been some advantages in SH remaining at the Finchley Hotel whilst she was pregnant, rather than being dispersed to DA, potentially in another area served by different maternity services and having to cope with the disruption of moving to a new residence. The benefits of avoiding such disruption to PNMAS is recognised in the Defendant’s Healthcare Needs and Pregnancy Dispersal Policy (version 3.0) which, in section 7, recognises that the benefits of prompt dispersal of a pregnant woman to DA may need to be considered alongside other considerations, such as the disruption involved in dispersal, as well as the benefits to the woman of remaining under the care of the same maternity services.

[80]Thirdly, even after the baby girl was born, she could have slept in the cot that was provided to SH. There was therefore no need for her to co-sleep with her parents by reason of a lack of space in the room. On my view of the evidence, although SH has preferred to clear away the cot in order to make space for a pram, this was a choice on her part, and she could instead have chosen to use the cot and to store the pram in the part of the communal areas that is used for storing prams and buggies.

[81]There did, however, come a time when the hotel accommodation could no longer be regarded as “adequate”. The identification of the precise time when that occurred is, by its nature, a matter of judgement. In my view, the Defendant should have relocated SH’s family to DA in a flat or house by no later than mid-December 2023. By that time, the family had already been living in the hotel room for a full year, and the Defendant was fully on notice that SH had given birth in September 2023 and that the family now included two children. The living situation of the family must have been extraordinarily stressful, with SH looking after a newborn baby who would have needed to be fed every few hours, whilst the son would have been sharing the same room and having his sleep repeatedly disturbed, including on ‘school nights’. The fact that the whole family was still living in one room meant there was nowhere for any of them to go for undisturbed sleep. Further, the fact that their room did not have a kitchenette or any cooking facilities will have made it particularly difficult to care for a newborn baby, wash baby bottles, etc. Whilst such a state of affairs might be acceptable for a short period, a continuation for longer than around 3 months was, in my view, too long to be consistent with providing them with a dignified standard of living, adequate for health and meeting their essential needs.

[82]I therefore find that the Defendant was in breach of her duty under ss.95-96 IAA 1999 to provide “adequate” accommodation for SH’s family, from 16 December 2023 to the end of April 2025. The period from 1 to 8 May 2025

[83]On 1 May 2025, the Defendant sought to disperse SH and her family to a property in Neath, Wales. The family declined to travel to that accommodation. Their reason appears to have been SH’s fear of moving to DA more than an hour’s travelling time from Finchley and, in consequence, losing access to the support she has been receiving from N, the good friend she had made and from whose in-person support she was greatly benefiting.

[84]As at that date, the Defendant had not yet been provided with the report of the clinical psychiatrist, Dr Pethania, on which SH now relies for showing that her mental health would be likely to suffer if she were to be dispersed to a location more than an hour’s travelling distance from N. That report was not sent to the Defendant until 8 May 2025. In my view, prior to the provision of that report, it was reasonable for the Defendant to regard SH’s request to be provided with DA located no more than an hour’s travelling time from Finchley as essentially a preference, rather than something that might be reasonably required for meeting her needs. It follows that the Defendant was not in breach of her duty under ss.95-96 IAA 1999 between 1 and 8 May 2025. After 8 May 2025 and ongoing

[85]As noted above, the Claimant provided Dr Pethania’s report to the Defendant (via the Government Legal Department) on 8 May 2025. The report detailed the mental health problems afflicting SH and noted the benefits to her of being swiftly relocated to DA within reasonable travelling distance of the Finchley area.

[86]On 12 May 2025, the Defendant obtained advice from the Home Office Medical Advisor (“HOMA”) as to whether SH required accommodation in the London / the South-East. Subsequently, on 18 June 2025, advice was obtained from the Home Office Psychiatric Advisor (“HOPA”). The advice of both the HOMA and the HOPA was to the effect that, based on the available medical information relating to SH, it was not necessary that the family’s accommodation be located within any particular geographical area.

[87]On 23 June 2025, the Defendant decided, apparently based on the medical advice received from the HOMA and the HOPA, that SH did not require accommodation located within 1 hour of Finchley. Thereafter, something of an impasse ensued in relation to the dispersal of SH to DA, since the Defendant continued proposing DA located more than an hour’s distance from London, whilst SH maintained that such accommodation would not meet her needs.

[88]The adequacy (or otherwise) of the Defendant’s provision of accommodation for SH and her family therefore turns, in respect of the period after 8 May 2025, on whether it was rational for the Defendant to decide, notwithstanding Dr Pethania’s report, that DA located more than an hour’s travelling distance from Finchley would be adequate for SH. To assist me in assessing that matter, I have read with care both Dr Pethania’s original report (the one dated May 2025) and her addendum report dated 4 November 2025. I have also considered the advices provided by the HOMA and the HOPA, both of which were succinct. Having viewed those advices, it does not appear that the HOMA had been provided with a copy of Dr Pethania’s report by the time when the HOMA gave her advice. The HOPA’s advice references Dr Pethania’s report as one of the documents the HOPA had seen but does not engage directly with any of the observations or conclusions set out in that report. It was effectively on the basis of those advices that the Defendant decided, by her decision letter dated 23 June 2025, that SH did not require accommodation within a particular area.

[89]It follows, in my view, that the 23 June 2025 decision letter was unlawful. That decision was taken, and explained in the letter, by reference to the advices from the HOMA and the HOPA, but neither of those advices had properly engaged with the medical evidence provided by SH by way of Dr Pethania’s report. From reading the decision letter, one gains the impression that the HOMA had considered Dr Pethania’s report, though (as stated above) it appears that the HOMA provided her advice without having seen that report. It may be that the author of the decision letter may not have realised that Dr Pethania’s report had not been considered by the HOMA. In any event, the failure of the decision to properly engage with the medical evidence was, in my judgment, a breach of public law standards, in that it was:(a) inconsistent with the approach detailed in the Defendant’s Healthcare Policy; and/or

(b) a failure to consider, and take proper account of, important evidence with which any rational decision-maker would have wished to closely engage.

[90]In the course of the hearing, the Defendant produced a further advice from the HOPA, dated 12 December 2025, together with a new decision letter, dated 15 December 2025, which again found that SH’s needs were not such as to justify granting her request for DA located within an hour’s travelling time from Finchley. The timing of the creation and disclosure of those documents is such as to make it likely that they are an attempt to shore up the Defendant’s case in light of identified vulnerabilities. That being so, I view the documents with a degree of circumspection, given the obvious risk of ‘confirmation bias’ (as opposed to genuine diligent reconsideration).

[91]In any event, the content of the documents is, in my judgment, unsatisfactory, for two reasons.

[92]First, although the HOPA’s new advice begins by making bare references to Dr Pethania’s original and addendum reports, the substantive content of the advice simply makes recommendations and does not directly engage with anything in Dr Pethania’s reports. The advice does not even directly address the question of whether, and to what extent, there would be likely to be relative detriment SH’s mental health if she were relocated far away from London (e.g. to Wales), rather than to within an hour’s travelling time from Finchley so that she could continue to benefit from practical and emotional support from N. The only material conclusions in the advice is that SH is not manifesting significant mental instability or suicidality, and that a move from hotel accommodation to DA would probably be of net benefit to her mental health. The issue of location is not addressed. That being so, the Defendant cannot place significant reliance on the HOPA’s new advice for showing that Dr Pethania’s concerns, including specifically those relating to the effect on SH of being relocated to far away from N, have been properly and genuinely considered with a view to identifying SH’s needs.

[93]Secondly, the new decision letter does not suffice to demonstrate that the Defendant has adopted a legally correct approach. The correct approach would have been to identify, based on careful consideration of Dr Pethania’s reports and other available evidence, SH’s “needs”(as per s.96(1) IAA 1999), and then to assess what features (including, potentially, location) accommodation would have to possess in order to be “adequate” for meeting those identified “needs”. As SA makes clear, accommodation will be “adequate” only if it is “adequate for health” of the relevant individuals. Further, in assessing what are the needs of those individuals and how those needs should be met, the Defendant must, insofar as relevant, take into account the special needs of individuals who are “vulnerable” (as per reg.4 ASRC Regs 2005) and have regard to the need to safeguard and promote the welfare of children (as per s.55(1) BCIA 2009): see paragraphs 68-69 above. Ultimately, in the context of SH’s case, the questions to be focussed upon by the Defendant were:(a) whether being accommodated far away from the in-person support that SH had been receiving from N would likely be detrimental to SH’s mental health condition relative to what her mental health condition would be if located to DA that was within reasonable travelling distance from N; and

(b) whether, given such detriment and its likely degree, accommodation far away from N would be “adequate” for SH’s health. Based on the contents of the new decision letter, I am not satisfied that the Defendant properly focused upon those questions.

[94]The thrust of the reasoning in the new decision letter, read with the HOPA’s new advice, is that SH’s request to be accommodated within reasonable travelling distance of N had been refused because:(a) asylum seekers’ requests to be accommodated in a particular location are agreed only in “rare cases” identified based on “the strength of the exceptional circumstances”; and

(b) SH’s mental health circumstances were not considered to be of a very high level of severity (e.g. suicidality) and were therefore not sufficient to cross that high threshold. The letter stated:

“In rare cases, the strength of the exceptional circumstances might make it appropriate to agree to the request to provide accommodation in a particular location, despite the ‘no choice’ general rule.”

In my view, that is not a sound approach, as it effectively substitutes an erroneous test of whether there are ‘strong exceptional circumstances’ that justifies making a ‘rare’ exception to the ‘no choice’ rule, for the standard of ‘adequacy’ in s.96(1) IAA 1999.

[95]The statutory ‘no choice’ rule in s.97(2)(a) IAA 1999 is an absolute prohibition on taking account of asylum seekers’ preferences as to location; there are no exceptions. But this does not prevent asylum seekers from informing the Defendant of any medical or other circumstances giving rise to alleged needs that the asylum seeker says could only be met, or could at least be best met, by providing accommodation within a particular geographical area. Nor is the Defendant prevented from herself taking full account of the asylum seeker’s health circumstances, and any vulnerabilities the asylum seeker may have, when deciding what DA property, in what location, to provide for that person, doing so in accordance with all the Defendant’s various relevant legal duties. In so doing, the Defendant is not breaching the prohibition on taking account of locational preferences. Further and in any event, the Defendant must ensure that, where she refuses a request for accommodation in a particular geographical area, she has identified the asylum seeker’s needs and is satisfied that accommodation outside that geographical area is adequate for meeting those needs.

[96]Given the Defendant’s failure to take a lawful decision as to SH’s accommodation needs, I am satisfied that the Defendant has been in breach of her duty over the period from when she received Dr Pethania’s report, continuing at least to the conclusion of the hearing, and probably ongoing.

[97]I will not, however, make a final order that requires the Defendant to now provide DA for SH within an hour’s travelling time from Finchley. That is because, though I am satisfied that the Defendant’s decisions to date have been unlawful, I cannot exclude the possibility that the Defendant could have taken – and might potentially still be able to take – a lawful decision that SH does not have a need to accommodation within that area. Although SH is clearly suffering from mixed anxiety and depressive disorder, the principal drivers of this seem likely to be(i) her having lived in hotel accommodation for a prolonged and continuing period, and

(ii) the refusal of her asylum claim in January 2024. If she were moved to DA, even if located more than an hour’s travelling distance from Finchley, this might contribute to an improvement in her mental health. I accept that being far away from N would be a significant loss to SH. I also accept that the various supports SH has received from N are likely to have served as a protective factor for SH’s mental health, without which SH’s mental health might well have deteriorated to a greater degree. But the Defendant’s duty requires her to seek to meet identified needs, not to provide optimal accommodation solutions. N is a friend whom SH made after arriving in the UK, and it may not be unreasonable to anticipate that SH would be able to form one or more close friendships in whatever area she is dispersed. Moreover, SH is not a single parent: her household includes her husband, and so she would not be entirely alone as an adult adjusting to life in a new location. Those are all points that the Defendant would be entitled to take into account when taking a lawful decision, albeit that the Defendant will also need to adopt the right approach and properly engage with the content of Dr Pethania’s reports. Adequacy of the accommodation provided for BWO and her family

[98]BWO and her sons were accommodated at the Croydon Hotel between 1 July 2022 and 3 July 2025. The period from 1 July 2022 to 21 February 2024

[99]The first offer of DA to BWO was made on 21 February 2024, after BWO and her sons had been in hotel accommodation for 600 days. During that intervening period, BWO had no options to be accommodated by the Defendant anywhere other than the room in the Croydon Hotel.

[100]In my view, the room provided for BWO and her sons could not be regarded as “adequate” for anything longer than a relatively short initial period (e.g. 3 months). That is because, even at the outset of that period, her sons were already of sexually mature ages, one being 17 and the other 12. As there were only 2 beds, she had to share a bed with one of her sons. These living circumstances would, in my view, be incompatible with personal dignity – and, it might fairly be thought, most people’s sense of propriety – even for a woman with no history of trafficking and who had no mobility problems.

[101]But such circumstances were (and could reasonably have been foreseen as being) especially distressing for BWO, given that she was claiming to be (and was subsequently found to have been) a victim of trafficking: it is understandable that her lack of personal privacy from her sons has been particularly distressing for her. I note that her sons were, at the time, of ages where they are likely to have been sexually mature and to have a sense of embarrassment or discomfort which would not be experienced by relatively young children. BWO’s knee injury will have made it even more difficult for her, as compared with an average able-bodied woman, to maintain her personal dignity in the setting of a hotel room shared with her sons, when getting dressed. These were features of vulnerability which the Defendant could and should have identified and taken into account when allocating s.95 accommodation. All the evidence I have seen is consistent with her manifesting obvious vulnerability to professionals with whom she came into contact. The family should have been prioritised at an early stage for a move to multi-room accommodation.

[102]I therefore find that the hotel accommodation provided to BWO ceased to be “adequate” from 1 October 2022 and that the Defendant remained in breach of her duty to provide “adequate” accommodation until a dispersal offer was made on 21 February 2024.

[103]For the avoidance of doubt, I do not consider the Defendant to have remedied, and thus brought to an end, her non-compliance with her duty by reason of the offer, in late 2024, to move the elder son (who was by then over 18 years old) to a separate bedroom. By that time, the younger son was around 14 years old, and BWO had already been living in the room for over 2 years. In these circumstances, even if the elder son was taken out of the room, the room would not have been “adequate” accommodation for the Claimant and the younger son. The period from 21 February 2024 to 3 July 2025

[104]Between 21 February 2024 and 30 May 2025, the Defendant was proposing DA for the family to locations far away from London. This may not have been unreasonable for part of that overall period, given the nature – and, in particular, the brevity and lack of detail – in the Claimant’s representations, made by way of an email on 22 February 2024, as to why she had declined the offer of a DA placement in Wales. Although the email was accompanied by medical records, BWO did not provide explanations, or set out a case, as to why her needs could not be met by accommodation away from London.

[105]On 10 January 2025, BWO underwent knee surgery and then required a significant period of recovery. It appears that BWO informed the Defendant’s advice line contractor that the surgery was scheduled to take place on that date on 11 December 2024. In my view, once it was known that BWO had been given a date for having her long-awaited knee surgery at a London hospital at that time, it would not have been reasonable for the Defendant to propose DA outside London. Instead, the Defendant should have confined her search for an appropriate DA placement to the London area, at least until after a reasonable recovery period for the surgery.

[106]On 30 May 2025, the Defendant accepted that BWO required London accommodation. This was in light of a specific development in her circumstances, namely that she had been accepted by the London-based Helen Bamber Foundation to receive the specialist therapy they provide. DA in London was provided for BWO on 3 July 2025, when she was finally able to move out of the Croydon Hotel.

[107]In my judgment, the Defendant was in breach of her duty by failing to provide BWO with DA in London over the period from 8 January 2025 (being the date 4 weeks after the Defendant’s contractor was informed of the date of the knee surgery) to 3 July 2025.

CONCLUSION AND DISPOSAL

[108]For the reasons I have given, the judicial review claims succeed but only to the limited extent of the findings of breach of duty to the Claimants which I have made within paragraphs 65-107 above.