By Lily Dai
Refugees who come to the UK are not always eligible for asylum seeker accommodation. Section 4(2) of the Immigration and Asylum Act 1999 allows for support to be provided to refused asylum-seekers if they meet the following eligibility criteria:
- They must be destitute. A person is destitute if: “… he does not have adequate accommodation or any means of obtaining it (whether or not his other essential living needs are met) or (b) he has adequate accommodation or the means of obtaining it, but cannot meet other essential needs”.
- They must fall into one of the criteria in Regulation 3(2): they are taking all reasonable steps to leave the UK or facilitate their departure – reg 3(2)(a);
1. they are unable to leave the UK due to a physical impediment to travel or for some other medical reason – reg 3(2)(b).
2. that in the opinion of the Secretary of State there is no viable route of return to their country of origin – reg 3(2)(c).
3. they have been granted permission to proceed2with an application for judicial review of the decision on their asylum claim – reg 3(2)(d).
4. the provision of support is necessary to avoid breaching their human rights – reg 3(2)(e).
Keep reading to learn more about the case.
Background of the case
The full title of the case is as follows: R (on the application of Parul) v Secretary of State for the Home Department  EWHC 2143 (Admin).
Shajmin Akter Parul is a Bangladeshi who arrived in the UK in 2009. She made several claims including asylum and leave to remain in 2010 and 2017, but these claims have not been successful. Subsequently, she also made further submissions in respect of her status in the UK. However, these are still being considered by the Secretary of State for the Home Department (‘SSHD’).
Unfortunately, Parul suffers from multiple chronic medical conditions. She has been receiving treatment for these medical conditions from a GP in Tower Hamlets. On 26 March 2021, Parul was moved by the SSHD to Seth Court Accommodation Hostel, which is about 75-minutes from Tower Hamlets. On 13 January 2022, a charity helped Parul make a dispersal request to the SSHD for her to be relocated to be closer to her GP and her family in Tower Hamlets.
On 27 January 2022, she sent the SSHD a PAP letter regarding the request. The SSHD confirmed that Parul’s relocation request was granted on 3 March 2022. Following on from that, Parul emailed the SSHD 3 times in March to ask if a suitable accommodation had been found. However, the SSHD replied to her on 21 April 2022 saying that there is no suitable accommodation that can be sourced. In her reply to the SSHD on 12 July 2022, Parul emphasized again on the necessity and urgency of securing a suitable accommodation.
Given the above, Parul applied for a judicial review of the failure of SSHD to provide her with suitable accommodation pursuant to section 4, Immigration and Asylum Act 1999 (Section 4). The failure by the SSHD is unlawful on 4 bases:
- it breaches the Defendant’s duty to source accommodation within a reasonable period of time
- it breaches the Defendant’s own guidance
- it breaches the Defendant’s statutory duty to make reasonable adjustments under sections 20 and 29(7), Equality Act 2010 (“the Equality Act”); and / or
- it is unreasonable
In addition, Parul submitted that on the date SSHD had accepted that Parul appeared to be destitute, the provision of accommodation was necessary to avoid an imminent prospect of a breach of Article 3.
The SSHD’s position is that, while they agree that Parul should be rehoused in suitable accommodation in Tower Hamlets, the delay in finding the accommodation has not been unreasonable because none is available. SSHD also submitted that there is no imminent prospect of a breach of Article 3 as Parul was originally accommodated in March 2021 and they have therefore fulfilled their section 4(2) duty. They claim that the subsequent failure to relocate was because of the significant shortage of properties of the nature which Parul sought in Tower Hamlets.
Notably, SSHD had filed no evidence in support of their defence. For example, whether Parul’s case had been prioritized by SSHD, records of accommodation stock, and/or the provider’s void properties.
Steps had been taken to look beyond the contract with the provider or the dates to search for accommodation for Parul. Even if there was no breach of any section 4(2) duty because the SSHD originally arranged the accommodation for Parul, the failure to relocate her within a reasonable period would still be unlawful and unreasonable given Parul’s serious medical conditions and her specific needs.
Given the above reasons, a mandatory order was deemed appropriate. Consequently, suitable accommodation should be secured within 8 weeks of that order.
SSHD is under a duty to provide a suitable accommodation within a reasonable period of time, pursuant to Section 4 of Immigration and Asylum Act 1999. What would be considered reasonable is for the Court to determine on the facts of the case. In this case, apparently, there is an imminent need for the asylum seeker to be relocated to a more suitable accommodation. Once SSHD has accepted that the asylum seeker is destitute, the duty to actively seek a more suitable accommodation arises to avoid a breach of Article 3.
Finally, as immigration advisers, it is important to always consider the merits of each individual case instead of blindly following the immigration rules. The court tends to be more compassionate to individuals who have serious medical conditions or any other specific difficulties.
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