On June 3, 2021, the High Court of England and Wales found that housing provided to asylum seekers in Napier Barracks in southeast England by the Home Office was unlawful due to poor living conditions and the adverse impact of those conditions on the physical and mental health of the asylum seekers. (R, on the Application of NB & Ors v. Secretary of State for the Home Department  EWHC 1489 Admin (Decision).)
Section 95 of the Immigration and Asylum Act 1999 (1999 Act) requires the Home Office to provide support for asylum seekers who are, or may become, destitute. Such support includes providing adequate accommodations. Since September 2020, the Home Office has housed asylum seekers in need of accommodation in Napier Barracks—a former British Army barracks—due to the increased demand for accommodations. The barracks were “basic and slightly run down” (Decision ¶ 3) and required asylum seekers to sleep in dormitories with shared toilet facilities. The barracks were determined by Public Health England to be unsuitable during the COVID-19 pandemic due to overcrowding that led to an outbreak of infections, and the asylum seekers were told not to leave the barracks “under any circumstance.” As a result of “tensions” among the inhabitants over those instructions, a fire was started later that month in the barracks. (¶ 6.)
Six asylum seekers filed a judicial review in the High Court against the Home Office, claiming that being housed at the barracks had an impact on their physical and mental health. The plaintiffs advanced four arguments:
1. The barracks did not comply with the “minimum standards” required by section 96 of the 1999 Act.
2. The process for selecting people to be transferred to and accommodated at the barracks was flawed and unlawful, in violation of the Tameside duty, which obligates a decision maker to ensure reasonable decision making, and the Public Sector Equality Duty under Section 149 of the Equality Act 2010, which requires decision makers to consider how their decisions will affect those protected under the Equality Act 2010.
3. The manner of accommodating the plaintiffs at the barracks breached their article 2 right to life, article 3 right to be free from inhuman and degrading treatment, and/or their article 8 right to private life under the European Convention on Human Rights.
4. There were periods in which the restrictions on their movement amounted to false imprisonment and/or a breach of their article 5 right to liberty and security under the European Convention on Human Rights.
The court found that the barracks did not ensure a standard of living that was adequate for the health of the plaintiffs and did not meet the minimum standards of the Reception Directive, which ensures that asylum seekers have access to, inter alia, food, housing, healthcare, and other fundamental rights. Further, the court held that the view of the Home Office that it had met the minimum standards of the Reception Directive and that the barracks were adequate for the needs of the plaintiffs was irrational.
Turning to the second argument, the court found the system that the Home Office operated when the plaintiffs were transferred to the barracks and while they were there “fell below the fairly low standard required by the application of the Tameside principle.” (¶ 233.) The court went on to say that having suitability criteria in place was not sufficient. There also “had to be a reasonable system for gathering the information to which those criteria would be applied,” and the Home Office’s screening interview failed to ask questions relevant to determining suitability. (¶ 234.)
In assessing the third argument regarding the alleged breach of the plaintiff’s article 2, 3, and/or 8 rights, the court dismissed the article 2 claim because there was no real and immediate risk to the plaintiff’s lives while at the barracks. Additionally, the court dismissed the article 3 claim because, while the conditions at the barracks were “problematic,” the court was not satisfied there was “treatment which humiliated or debased” the plaintiffs or broke their “moral and physical resistance.” (¶ 267.) Finally, the court likewise dismissed the article 8 claim because the privacy the plaintiffs had at the barracks was sufficient to comply with article 8.
As for the final argument, the court found that only the restriction on the plaintiffs to not leave the barracks “under any circumstances” amounted to false imprisonment and a breach of article 5. However, the curfew placed on the plaintiffs and the specific treatment of one plaintiff who was moved to a separate area after a positive COVID-19 test did not amount to false imprisonment or a breach of article 5. (¶ 308.)
Despite upholding the plaintiff’s first and second arguments, and their fourth argument in part, the court did not require the Home Office to stop using Napier Barracks, although there have been calls for the Home Office to close the barracks. The court did say that if the barracks are to continue to be used, “there clearly need to be substantial improvements in the conditions there.” (¶ 239.) The Home Office has said that they have since made improvements and will continue to do so. The Home Office and plaintiffs are yet to agree on damages and what declarations are to be made.
Prepared by Chris Brain, Law Library intern, under the supervision of Clare Feikert-Ahalt, Senior Foreign Law Specialist