5 Essex Court


23 Jun 21 Back to Listing

Alan Payne QC and Saara Idelbi succeed in judicial review against the decision of the First-tier Tribunal (Social Entitlement Chamber)

The Administrative Court handed down judgment this week in R(Secretary of State for the Home Department) v First-tier Tribunal (Social Entitlement Chamber) and AM and others.

The judicial review concerned the Tribunal’s decision’s conclusion that a failure to provide accommodation to failed asylum seekers would breach the human rights of the failed asylum seeker and the wider public due to the risks posed by the COVID-19 pandemic. The impact of the Tribunal’s judgment was, if the Tribunal’s reasoning was correct, the Secretary of State for the Home Department (“SSHD”) should provide accommodation to all failed asylum seekers until step 4 of the Government’s roadmap out of lockdown.  

The Court considered the case law on the positive obligations under Articles 2, 3 and 8 and concluded that, in the absence of any explanation as to why the failed asylum seeker was not in a position to return home, the SSHD was entitled to regard any offer of accommodation conditional on taking steps to leave the UK as a reasonable discharge of any positive obligation arising under Articles 2, 3 and 8 to protect the failed asylum seeker from risks to their life and health and, were they not to accept that offer their exposure must be assume to be as a result of their own decision.

In respect of the public at large, the Court concluded that the Tribunal was wrong to conclude that the rights of the general public provided a basis to impose a duty to accommodate failed asylum seekers until Step 4, against the backdrop of other measures designed to protect public health and the margin of appreciation afforded to states in addressing the COVID-19 pandemic.