By Xijia Xie
In today’s article, we look at a recent case, R (on the application of MG) v Secretary of State for the Home Department. In this case, the claimant is an asylum seeker who was provided with private accommodation by the Secretary of State. He was attacked by a fellow asylum seeker (A) during the stay and was seriously injured. He initiated Judicial Review proceedings against the Secretary of State on the grounds that she did not perform her obligation to sufficiently investigate after the incident.
Judicial review is, in a nutshell, a process by which an individual may bring a claim against the government for not acting lawfully.
In this case, the Claimant believes that the Secretary of State’s omission to investigate gave rise to a claim that the Claimant’s Article 3 rights under the European Convention on Human Rights had been breached. Article 3 states:
No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
Was the Secretary of State obliged to carry out a separate investigation?
The submitted claim was not accusing Secretary of State of the harm but rather that adequate action was not taken after the claimant was already injured. This is possible because section 6(1) of the Human Rights Act 1998 provides that the government must act compatibly with the Convention. The Secretary of State did not carry out a separate investigation. Accordingly, the question of whether she is obliged to do so, is the key issue of the case.
The Claimant submitted that a duty is owed in this case but did not provide any case law in which asylum seekers accommodated in private housing (a hotel) triggered the duty. The Court thus had to decide on this point by assessing it as a new precedent. It mainly considered:
- Were hotels accommodating asylum seekers inherently dangerous?
- Were the claimant and A under exclusive control of Secretary of State?
- Was the Secretary of State otherwise responsible for the health and welfare of the claimant and A?
Court not convinced that the Secretary of State breached her systematic duty
On the first point, the Court was not satisfied that accommodating asylum seekers in hotels is inherently dangerous. However, it reserves the possibility of a different outcome if one or more individuals were known to be a risk. On the second, the claimant and his fellow asylum seekers were not under detention. They were given a room, but they are not obliged to stay there. On the third, the Court held that the Secretary of State was only under a general legal obligation to look after the accommodated asylum seekers, who have the capacity and autonomy to be responsible for their own well-being.
As a result, the claimant failed to convince the Court that the Secretary of State had breached her systematic duty.
Home Secretary did not breach her operational duty
The claimant also submitted to the Court that the Secretary of State breached her operational duty during the incident on 25th June 2020. This was also refused by the Court because the hotel staff that were authorised by the Government did not have protective equipment (or were legally required to) and could not confront the attacker physically. They called the police immediately and it would not be reasonable to expect unprotected hotel staff members to do more than they already did.
As can be seen from the result, it is possible for Secretary of State to be liable for failing to carry out a positive action, but the claimant must prove that the obligation is owed. Unfortunately, in this case, neither was successful.
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