Hi, everyone. Um So today I'm providing you with a session on asylum accommodation challenges. This is a session brought to you by data law. My name's Priya Solanki and I'm a barrister at Wampum court chambers in London and I specialize in immigration, asylum and human rights law. I have done so now for over a decade and um I have um recently in the past few years um had quite a busy practice with asylum accommodation challenges. Uh Now I'm um I'm hoping in this session to be able to cover with you. Um the relevant statute which is the Immigration and Asylum Act 1999 the asylum support regulations, the relevant directive, I'll be spending some time going through um relevant home office policy guidance with you and I'll be highlighting useful aspects of those documents. Then I'll run you through some of the authorities. Uh We throughout the session be looking at vulnerable applicants and their particular help or other needs that need to be considered in on the accommodation requests and challenges. We'll look at the use of um hotels for long term accommodation and challenges that have been brought there and we'll look at the BB Stockholm Vessel as well and the policy guidance that um has been bo seen in that regard now throughout I will be giving you tips um and um practical examples as well uh for you to make use of. Um So hopefully, uh there's something in here for practitioners at all levels and you'll find this a useful session. Um So let's make a start. So um your starting point really in these cases is to be familiar with the Immigration and Asylum Act 1999 and the relevant provisions within that. So just to begin with section four of the Immigration and Asylum Act 1999 what that does is it um says that the Secretary of State may provide or arrange for the provision of facilities for the accommodation of persons who are temporarily admitted to the UK under the 1971 act released from detention under that paragraph or released on bail under any provision of the Immigration Act. Um The Secretary of State may provide or arrange for the provision of of facilities for the accommodation of a person if he was but is no longer an asylum seeker. And um uh his claim was rejected or declared inadmissible under the nationality, Immigration and Asylum Act 2002. And um e equally what the provisions um under section four say is that they may provide or arrange for the provision of facilities for the accommodation of a dependent of um a p of such a person. So section 42 is uh really important because it assists um failed asylum seekers who are uh effectively um making the fresh claim or unable to be removed from the UK. Um And I will return to that provision in a little while when we're going through the policy guidance. Now, section 94 sets out the definition um it's the interpretation part and it's worth considering in full. Now, a dependent is described as a spouse or a child um of the applicant or of the spouse. Um an asylum seeker is somebody who is uh not under the age of 18 and has made a claim for asylum which has been recorded by the Secretary of State, but which has not yet been determined. And a claim for asylum means a claim that it would be contrary to the U K's obligations under the refugee Convention or under article three of the Human Rights Convention for the individual to be removed from or required to leave the UK. Um Obviously, there is much more within that interpretation section that you'll need to look at in individual cases. Now, section 95 is um one of the two most important provisions that we look at in making requests and um in challenges. And what that says is that the Secretary of State may provide or arrange for the provision of support for asylum seekers or dependents of asylum seekers who appear to the Secretary of State to be destitute or likely to become destitute within such period as may be prescribed. Um So basically, if the individual is destitute or likely to become destitute, then um they are supposed to arrange for support and accommodation. Now, I'm not dealing with um support in this session. I'm just dealing with asylum accommodation. Um Now, um they define destitution at 95 3. And what is said is that a person is destitute if he does not have adequate accommodation or means of obtaining it, whether or not his essential living needs are met or he's got adequate accommodation or the means of obtaining it but cannot meet his other essential living needs. And if a person's got dependence, then those provisions are to be read with those dependents in mind. Ok. Now, um there are other provisions within section 95 that look at whether or not a person's accommodation is adequate. Um I'm not going to spend too much time though on those for the purposes of um today, section 96 sets out the ways in which a person may be supported. So support can be provided. It said by providing accommodation um by providing what appears to the Secretary of State to be essential living needs to enable the sole supported person to meet what appeared to be the Secretary of State to be expenses incurred in connection with their claim for asylum um to enable the person and any dependents to attend any bail proceedings in connection with their detention. And if the Secretary of State considers that the circumstances of a particular case are exceptional, he may provide support under section 95 in such other ways as is considered necessary. So you can see there that support extends um beyond um uh um accommodation and it it includes things like travel expenses. Uh But as I said, this is an a session that addresses support. Now, section 97 is a um supplemental section. But what it addresses is um when the Secretary of State is exercising their powers under section 95 in respect of um ensuring that individuals have adequate accommodation. Uh What it says is that the Secretary of State must have regard to the fact that accommodation is to be temporary pending the determination of the individual's asylum claim. Um She must consider the desirability of providing accommodation in areas where there's a ready supply of accommodation and such are the matters as might be prescribed by my regulations, but they can't have regard to any preferences by the individuals or their dependents or any other matters that are prescribed and that's important. We'll return to that in a moment. Um ok. Um Now, um section 98 is the other provision which um comes up um a lot in requests and indeed in challenges. And section 98 is the section that deals with temporary support. So section 95 is long term support and accommodation. Section 98 is temporary support and accommodation. And what it says is that the Secretary of State may provide or arrange for the provision of support for asylum seekers and dependents who it appears to the Secretary of State may be destitute. So you can see that's a different test to the one under section 95 where it says they are destitute or likely to become destitute. This is where it appears they may be destitute. Now, support may be provided under the section only until the Secretary of State is able to determine whether the support may be provided under section 95. So it is supposed to be temporary um support and accommodation. But actually these days um support under section 98 accommodation that is provided temporarily tends to last for quite some time because of um the availability of accommodation or certainly, that's what the Secretary of State asserts. Section 99 can be a useful provision for practitioners to make use of where somebody's been in temporary support for quite some time. So um provision of support by local authorities. So local authorities may provide support um for pers for persons in accordance with arrangements made by the Secretary of State. So basically, they can turn to a local authority to assist them um with accommodation and support needs. And section 100 also needs to be considered alongside that. What it says is that local authorities and other um assistance for the Secretary of State can be provided where the Secretary of State asks a local authority or a private registered provider of social housing or a registered social landlord or a registered housing association to assist him to exercise his powers under section 95 to provide accommodation. And the person to whom the request is made must co-operate in giving the Secretary of State such assistance in the exercise of that power. Ok. Um So where you're making a challenge that somebody's been in temporary section 98 accommodation for quite some time. And um it's you're saying that they need to be moved to more long term accommodation. And the Secretary of State is saying that there isn't accommodation available in the area that the individual needs. You might want to ask whether they have exercised their powers under section 100 whether they've given consideration to section 99 and section 100 to assist in that um move coming along more quickly. Ok. Just some other provisions that you need to be aware of when dealing with these cases. So um at directive 2003 9 ec uh just two provisions that I'm going to highlight um from that article 13. Um what it says is that member states shall ensure that there are material reception conditions available to applicants when they make their applications for asylum. Um And they shall make provisions um that ensure a standard of living that's adequate for the health of applicants and capable of ensuring their subsistence. They um shall at um ensure that there's a standard of living. Um That is um having specific regard to those who have special needs in accordance with article 17 and we'll turn to article 17 in a moment. Um So um article um 17, what that says is that member states shall take into account the specific situation of vulnerable persons such as minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minor Children, persons who've been subjected to torture, rape and other serious forms of psychological, physical or sexual violence. Um And that's really important in um looking at whether the accommodation that is being provided for your client is adequate and whether it meets their specific situation, having regard to their vulnerabilities and all of those categories that arise. Um And the regulations that we will turn to and look at in a moment also um discuss um those specific situations and vulnerabilities. Um So it's clear that they are having regard to article 17 or at least they're supposed to. Ok. Now, I um want to move on to have a look at the um asylum support regulations 2000 and um in particular regulations 67 and 13. So uh when they're looking at um destitution as opposed to take into account the individual's income and assets. Um and regulation six says that um that includes um any cash, any savings, any investments, any land, cars or other vehicles, um goods sells for the purposes of trade or other business. So uh just important uh when you are looking at eligibility um for um accommodation that you have that in mind and go through these issues with clients. Now, um you saw that section 95 talks about um the period um a period within which the applicant is likely to become destitute. Now, um that is um discussed further in regulation seven of the 2000 regulations. And what it says is that the period that's prescribed for the purposes of section 95 is where the person is destitute or likely to become. So, um in relation to an initial application, that period is 14 days. So if they're likely to become destitute within the next 14 days, then they will meet the requirement. Um And then subsection B of regulations um seven where the um question falls to be determined in relation to somebody who's already being supported under section 95. Then um the period is 56 days beginning with the day on which that um period falls to be determined. So basically where somebody's had a change in situation, for example, their asylum claim has been reviewed, there might be a review at that stage and they'll be looking at whether or not somebody is going to become destitute and they'll be looking at whether or not they're going to become destitute within 56 days at that time. But at the initial application stage, it's just 14 days regulation 13. Um the matters mentioned in paragraph two that are prescribed um with reference to section 97 uh that, so this is um the supplemental provision which talks about matters that they're not supposed to have regard to when looking at allocating accommodation. So what it says is that they're not to have regard to personal preferences as to the nature of accommodation, as to the standard of fixtures and fitting. However, this doesn't prevent the person's individual circumstances being taken, taken into account as they relate to the individual's accommodation needs. Um So basically all of those um vulnerabilities and special needs and health circumstances, those are individual circumstances that need to be taken into account. Ok. So uh now we are moving on to look at regulations four and five of the asylum seekers, reception conditions, regulations 2005 and regulation four is the provision for per for persons with special needs. And what it says is that when the Secretary of State is providing support or considering whether to provide support under sections 95 or 98 of the 1999 Act to an asylum seeker or his family member. So that's important it applies to both temporary accommodation and to long term accommodation. Um He shall take into account the special needs of that asylum seeker or their family members. So it applies to both the applicant and any dependents. And um subsection three says um the a vulnerable person is a minor, a disabled person, an elderly person, a pregnant woman, a lone parent with a minor child, a person who has been subjected to torture, rape or other serious forms of psychological, physical or sexual violence, who's had an individual evaluation of his situation that confirms his special needs. And it's made clear in this regulation that the Secretary of State is not obliged to carry out an individual evaluation, but they have to have regard to one if it's providing. So basically, the duty is on the applicant to provide evidence of their vulnerabilities. Um And um of course, it's really important that uh medical evidence is gathered um properly and that it's detailed and at an early stage so that you're able to rely on regulation four and they need to have regard to um the special needs of um that asylum seeker or their family member. Now, regulation five. Um what this um um says is that if an asylum seeker or his family member applies for support under section 95 or indeed, section 98 the Secretary of State must offer the provision of support to the asylum seeker or their family member. So it becomes a duty um to provide accommodation as a result of regulation five. And then uh we're turning now to the immigration and asylum provision of accommodation to failed asylum seekers regulations. 2005, uh regulation three is to uh be read with section four of the 1999 Act. Um Now, um it talks about um uh eligibility for and provision of accommodation to a failed asylum seeker. And um first of all, the individual has to show that um they appear to be destitute and then they have to show one of the conditions that apply in three subsection two are satisfied. Now, those conditions are firstly that they're taking all reasonable steps to leave the UK and that includes complying with the travel documentation process, for example, or secondly, that they're unable to leave the UK because of the physical impediment or some other medical reason. Thirdly that they are unable to leave the UK because there's no viable route of return. Fourthly that they've made an application for JR in relation to a decision in, in their asylum claim. So basically, they've made a fresh claim and they've not been given a right of appeal or say that their claim has been certified. If they bought to JR, then uh they, they meet the condition. Um However, what is also said is that um the provision of accommodation is necessary for the purpose of avoiding a breach of convention rights within the meaning of the Human Rights Act. So if the individuals um human rights are going to be breached by them not being provided with accommodation, then they also meet the conditions. Now. Section 55 of the Nationality Immigration and Asylum Act 2002 is a provision to be aware of but not one that you often see used. It relates to restricting access to support for asylum seekers where the Secretary of State is not satisfied that a person has made their asylum claim as soon as reasonably practicable after their arrival in the UK. So basically they can um refuse to support if they think somebody didn't make an asylum claim. Um as soon as reasonably practicable. Uh just also be aware of article 38 and article four of the EC hr and the ability um to rely on those provisions. And we'll turn to that a little bit more as we look at the case law at section 55 of the Board of Citizenship and Immigration at the best interests of Children and section 11 of the Children Act 2004 as well. Ok. Um So we spent quite a long time there going through various um um statute regulations. Um And that's important because that's really your framework for making requests, bringing challenges, setting out a challenge in a preaction letter. Um But um now we're going to move on to have a look at home office policy guidance in respect of asylum accommodation. Ok. So on um this side here, what you have is a link to all of the relevant policy guidance that I'm going to be discussing in this um session. It is all hyperlink so you can click on it and it'll take you to that pool to the policy. Uh No replacement for reading the policy in full. But what I'm hoping to do for you um in this session is to bring out some useful parts of it so that you're aware of what's in there. Um So the first one is assessing destitution. Now I spoke to you uh just a moment ago when going through the relevant um uh statute and regulations, um that there is an assessment of whether somebody is going to is destitute or appears to be destitute or likely to become destitute or may be destitute. Um Now, uh there is a policy on assessing destitution and um for most asylum seekers, it's not difficult in my experience to make out destitution. And um it's however important to be aware that what um the home office can do is assess information provided on an asylum support form against other information that's held about the applicant. For example, if they have come here as a result of a visit, visa, they'll be looking at the visit visa application form or as a student, they'll be comparing it to what they had set out on their student application form. And if there's discrepancies that arise as to their income and their assets, they will of course, um ask uh ask questions about that and what this guidance says is that they should put the discrepancies to the individual so that they've got an opportunity to address that. Now, they say that they don't make requests to family members, friends, landlords who've previ previously accommodated and supported individuals um to uh assess differences, but they will ask the individual in terms of any earnings through employment. Again, that's a question that's put to the individual to ask where, where they're at with that and why that's come to an end. It may of course be obvious they might not have a link to work anymore. Um But they are able to liaise with other public bodies such as the Department of Work and pensions um and local authorities um about comparisons of information. Um If the individual had said on an application form previously that they had X number of funds in their overseas bank account, then they'll be looking at whether that can be transferred, how much that would now amount to, why it could not be accessed. So it's uh these are things that you need to really be aware of. Um ok. Um That's all really that I want to say about that particular policy. So I'm now going to move on and deal with the sun support. Um Section 42 policy. Um and that um is um the policy addressing support for failed asylum seekers. Now, um I spoke to you about um the um provisions and what um the regulations say about who is eligible under these provisions. And one of the matters that is considered is whether a person is taking all reasonable steps to leave the UK. Now, the policy expands upon this and what it says as a general rule, it's expected it's reasonable to expect a person who's taking reasonable steps to leave the UK to be able to do so within three months. And they talk about making use of the assisted voluntary return scheme. Eligibility for support under these sections is to be reviewed regularly and it should usually be discontinued. They say after three months unless the person provides a satisfactory reason as to why they've not left the UK. If they're physically unable to leave, then um that should be supported by evidence from their GP or an NHS consultant. The guidance says if someone's in the late stages of pregnancy, then what they need to provide is a map b one form or other medical evidence confirming the pregnancy and the expected date of delivery. They don't expect people to travel in the late stages of pregnancy nor do they expect people to travel where they have got a newborn child that's less than six weeks old. Um Now, um what they say is that the first step in determining whether accommodation or support needs to be provided for human rights reasons, which was another condition we spoke about um is looking at whether in ordinary circumstances, a decision would result in that person sleeping rough or being without food, shelter or funds, uh that's likely to be considered in human or degrading treatment. Contrary to article three, and they refer to a case called Bula, which is the third bullet point on your handout in their guidance in referring to that point. However, what's made clear with reference to the case, Karni also on your handout is that there's no duty under the ec hr to support foreign nationals who are freely able to return home. Uh Equally, there are no um if there are no legal or practical obstacles to return home, the denial of support does not constitute a breach of human rights. And in saying that they refer to a case called um W versus Croydon, London Borough Council 2007. EWC A si 266. Now dependence of asylum seekers and they are to be supported too. And that includes dependence of failed asylum seekers. It, they make clear that it doesn't just include spouses and civil partners. It's also people who've lived together as husband and wife for the last um for two of the last three years. So basically unmarried partners and there's no requirement for a dependent to have been a dependent on an asylum claim. The fact that they're a spouse or a child or a civil partner or meet the definition of an unmarried partner is simply enough. Now, if the home office makes a decision that somebody is to be refused to support under these provisions or they are to be um discontinued support. Um Then they should be informed of that. Um that that decision will take effect um And they'll be given no less than seven days to vacate accommodation. They will have a right of appeal under section 103 of the 1999 up to the first tier tribunal, asylum support um tribunal. Um and they'll have to submit an appeal within three days. Now, also important to note the statute makes clear as well. Um Individuals who've had their claims declared inadmissible can also be supported under section 42 as failed asylum seekers. Ok. So now we're moving on to a specific policy that deals with dependence on an asylum support application. We spent quite some time already looking at dependence within the other provisions. Um And I've already explained to you that they don't necessarily need to be a dependent on their asylum claim. Um The guidance also makes clear that it doesn't include British citizens or persons who has valid leave to remain. So basically, there could be a partner who's got leave, there could be a child who's a British national, but they will look at what sources of income and support those individuals have available to them in assessing the question of destitution. Now, they address also adult siblings here who would want to be accommodated together. And they say when there's such a request for individuals to be accommodated. They obviously don't meet the definition of dependence but case where case workers should take into account the wishes of all the parties, the availability of suitable accommodation, article eight considerations. Um So basically, it's not impossible, you can make those requests, but you'll need to really work at explaining why it is that it needs to be um that they should be accommodated together. Ok. Um So moving on to the allocation of asylum accommodation policy and um I spoke to you about section 97 of the immigration and asylum at 1999 which talks about um um how um they're supposed to provide area uh accommodation in areas where there is a ready supply and they're not to have regard to preferences, but that doesn't prevent them having regard to individual circumstances. And this guidance basically tells caseworkers how to consider requests from asylum seekers um who want to be accommodated in a particular location. Now, it makes clear that their overriding principle is that accommodation is offered on a no choice basis as a general rule it's provided outside London and the Southeast and in areas where the home office has a ready supply. Um Kate's workers however, can re um consider requests for accommodation in particular locations such as London and Southeast. Um And there to consider it under these um policies. Um Now, um they make reference in the guidance to a case called her Tosia um which is the 2002 high court case referred to in the handout that you've got, which talks about uh how there is a obligation to consider individual circumstances and needs not only for the individual but for family as well in terms of um um the actual guidance and the sort of things that it takes into account um disability, family ties, education, ethnic group, religion, legal advice, medical treatment. So, um they say that in some circumstances, they might not be able to meet the individual circumstances need, but they might be able to mitigate um the impact of that by agreeing to pay travel expenses so that they can attend appointments. Um But let's go through those reasons that I went through that list of reasons and what is said about those particular circumstances. So if we have got individuals with disabilities or serious health problems, they should have regard to uh that and whether there's a local authority that's providing support and assistance. Um and whether there's going to be a disruption to that basically family ties. So what the guidance says about this is that it's not uncommon to have um requests to live near family or friends. They should have regard to article eight, they will be looking at the nature of the relationship. Um If somebody wants to maintain contact with a child, then they will be looking at um whether or not they need to be in a particular location for that to occur. Um So if you're basically making a request on the basis of relationship, you, you would need to at the very minimum have evidence on from both of the individuals or all of the individuals involved in this relationship. To explain the nature of it, what the dependent is like, why they need to be close to each other? What would happen if they weren't the impact of that separation, why they wouldn't be able to travel to see each other or maintain their support by modern means of communication. It might be very practical support that's being provided, for example, education. So um Children who are in attendance at school, uh what's said about that is they can be transferred to another school in another area. However, if they're in their final year at school or college doing their G CS ES or A S or A levels and they've been enrolled at that school for a significant part of the previous school year, then they um will look at that with more sympathy. If a child's got special educational needs, um then accommodation should normally provided, be provided near to the school that's dealing with those needs unless it's clear that accommodation can be arranged to another location where there's another appropriate school. Um So basically in certain circumstances, you will be able to make requests about educational needs, ethnic groups. So um somebody might um make a request and say that they want to be near people who are of the same ethnic group to them. But what the guidance says about this is that the home office provides accommodation in areas which generally have established ethnic minority communities and where there are voluntary and community infrastructures in place, religion. Um a request um for accommodation within reasonable traveling distance of a particular place of worship used by a religious group such as a church, Moscow or temple has to be considered carefully and agreed wherever possible. So that's uh a request that should be considered um with real care. Um Now, they might say that there are other places of worship by the same religious group in a different area that they could go to. So you'll need to justify why that wouldn't be suitable, for example, legal advice. So somebody might say, well, their lawyer is in a particular location and they won't have access to them. What the guidance says is that they could transfer to another legal advisor. Now, we know there are real problems with legal aid provision and so that may not be a possibility. So there might be arguments about that. But what the guidance also says is that they can provide travel expenses um through legal aid to um attend appointments, medical grounds, um medical treatment they say is available in all areas. Uh transfer uh between NHS practitioners is an everyday occurrence. So you'll really need to explain why it is that they shouldn't be relocated. There's a particular section that deals with uh individuals who are being supported uh or assessed by freedom from torture or Helen Bamba. What they say is they would want a letter from the organization date or dates when the individual is due to be assessed or where treatment is being provided. Um And uh they're supposed to take that into account in looking at whether or not they need to keep the individual in a particular area to meet those appointments. Um Generally speaking, what they say is accommodation should be provided within one hour traveling distance of the center if they're going there um regularly and these requests. Um So where the these organizations are saying that current accommodation is unsafe or unsuitable, these should be handled on an urgent case by case basis. Um Further usefully, what is said is that um where an organization helm Bamba or freedom from torture is saying that an individual needs self contained accommodation or other special arrangements, they shouldn't be referring the case to the home office, medical advisor. They should just be accepting that opinion. Um The guidance also deals with suitability criteria for being accommodated at Napier accommodation, Ex Ministry of Defence accommodation side and uh vessels. So that includes the BB Stockholm vessel, which we're going to spend some time on later. Also addresses room sharing at all accommodation sites too. So where you've got an individual who's saying that they don't want to room share or can't do so. Um you should be turning to this guidance. Ok. So now we're moving on to deal with the healthcare needs and pregnancy um policy. This is a really important document, no replacement for reading this document in full. I'm just going to highlight some important parts of this to you as I have with the other policies. Um And uh usually most requests for specific types of accommodation, specific needs are made with reference to this policy. Now, um um at the outset, what it says is that um uh they'll look at information in the screening interview, they'll look at somebody who has said they've got medical conditions um whether they are having any sort of treatment, if they're a woman, whether they're pregnant and that will be taken into account in looking at where they should be accommodated. Um If they've got a severe or complex healthcare need, then wherever possible they should be um routing the applicant closest to where they are currently being treated. It says um if they've got insufficient medication, um then it might not be appropriate to move them until they have got access to more accommodation. They might have to be temporarily accommodated. Um where um they are currently near their doctor so they can gain access to more medication if their healthcare needs require urgent provision of dispersal accommodation. So basically, if um what is being say, what is being said is they shouldn't be in temporary accommodation for too long. Then that should be application for support under section 95 needs to be prioritized wherever possible. Now, this document spends quite some time going through the role of an asylum support medical advisor. So for those of you that are not familiar with um these cases where an individual is generally making requests based on their health needs. It is not uncommon for the home office to refer that case to their own home office. Asylum support, medical advisor to ask for their opinion. And this guidance sets out what the role of the asylum support medical advisor is and what it is that they're supposed to be doing. Now, you have to bear in mind with asylum support, medical advisor that they are not actually getting to assess and see the client. So they're basing it entirely off the documents and evidence that and information that the home office are providing. So it's important where you get a recommendation from a thm support medical advisor which you're unhappy with that. You say uh you want disclosure of the information that was given to that advisor um and um uh their full opinion to be given to you as well. Ok. So what the guidance says is that the asylum support medical advisor advises home office case workers about general availability and capacity of medical treatment in particular regions, advice on fitness to travel to dispersal accommodation, recommendations on the nature of accommodation to be provided advising on a requirement to stay in a particular area for medical reasons, advising on a medical need to relocate, supported persons or applicants from one area to another. Um where failed asylum seekers are unable to leave the UK by reason of a physical impediment to travel or some other medical reason. So, uh their roles are quite um vast. You can see from that in terms of what they're assisting the home office with. They will base the information on the information provided in the referral. It's essential. All relevant medical information is included in the referral and that relevant medical documents are attached. The asylum support, medical advisor does not have access to the asylum support system. So that's why it's so important that they are given proper evidence and information. And um if known, then the case workers should let the medical adviser know the proposed address that the individual is going to be going to uh I in exceptional cases, the ass and support medical advisor can make contact with a clinician or a midwife that's treating the individual. If the assy and support medical adviser and needs more information, then the case worker should be writing to the applicant for a up to date evidence letter. Um And um where um they um case worker is saying they're not going to be able to comply with advice received by the applicant's medical practitioner. They should fully substantiate and record their reasons for doing So if an NHS clinician or health professional has made a recommendation or emailed on behalf of an applicant, then the home office must acknowledge that correspondence that say um mandatory requirement under the guidance which you rarely ever see comply with. Um And um they in terms of determining the nature of accommodation required, what 4.9 of this guidance says is that um for pregnant women, any dispersal property must be suitable, not just for their them in pregnancy, but also for a mother and a baby postbirth. If somebody's got mobility problems, then they might need ground floor level access accommodation. If they're a wheelchair user, they um they must ensure they've got access to the kitchen bathroom, sleeping areas. Um All key areas basically of the accommodation, those with infectious diseases um shouldn't be sharing rooms, those with HIV should be provided with um single occupancy accommodation um of their own room. It can be within um multiple occupancy dwelling, but they should have their own room and um any special needs that information has to be pressed to the dispersal accommodation team. Ok. So we're sticking with this um policy for a little while longer. I'm just giving you um a few more bits of this that might assist you. Um If an individual has got HIV, then they should be dispersed to an area where they can reasonably be expected to access their current treating facility. So that's important. It becomes difficult for them to be dispersed outside of the area they're already in. Um and um there needs to be um communication with their treating clinician. There needs to be consideration of whether any dispersal would cause harm to the individual or pose any risk to the wider public. And um if we've got a HIV, um positive um applicant who's pregnant, additional care is required extra care where there are um Children that are infected with HIV. Um Special guidance in respect of those who've got TB as well. Um They shouldn't be sharing a bedroom. It also has guidance in respect of those on psychiatric medication. If there's abrupt cessation, what's accepted is that would might cause a serious deterioration in their mental health. Um It's not uncommon with those with mental health issues to only be given medication for a few days to prevent overdose so that what needs to be ensured is they've got access to um their current GP and sufficient medication before their dispersal um disruption of therapy with a trusted clinician might also be detrimental to mental health and um that needs to be taken into account. Um And the asylum support medical advisor should be liaising with the treating clinician if dispersal is the only option where there's a risk of suicide, serious self harm or risk to others. Um It's accepted in pregnancy cases. Um that pregnancy, birth and new motherhood can have a significant impact on a woman's physical and psychological health no single solution is um is going to be possible. It needs to be considered on a case by case basis, what's appropriate and suitable for that individual in terms of accommodation, but they should be seeking to minimize stress for a woman during their pregnancy. Um What needs to be considered in looking at safeguarding the health of mothers and babies is their ability to book into early maternity services, continuity of care, family and social support, planning, labor, postnatal care for 6 to 8 weeks. Uh The specific section at 7.4 0.4 on the late stages of pregnancy and how that needs to be considered with real care in looking at a mother's needs. Also the section on miscarriage stillbirth as well and how um it an individual shouldn't be moved until the termination has take place and initial recovery until um an individual's made a clear decision to continue with the pregnancy um until there's been an initial booking, information sharing and screening. Um So, um lots of useful um material there to make use of. Also what's said is um uh there needs to be special care um of circumstances where individuals um have um got severe mental health problems, other serious um diseases, a lot of which we've already covered already. Ok. Um Effective handover of healthcare, that's at 4.15 of the guidance and talks about how the Home Office aims to assist in ensuring that applicants who at point of claim present with health issues are able to access appropriate medical care and special facilities that they might need. Um So they're supposed to be basically working with the NHS doctors midwives to ensure that there is handover of care when somebody is dispersed. Now, you rarely see that happen in practice. So where somebody hasn't been able to register with a GP for quite some time, you will be able to make use of this to say that they're not being assisted with that and then maybe that their accommodation isn't adequate because um if they're not having regard to their special needs, etcetera and assisting them and complying with policy. Um It, what said is that at 5.1 it's absolutely essential that sufficient information is communicated to the accommodation provider to enable them to ensure that any necessary arrangements are put in place. The provider should be informed on dispersal that the applicant needs to register with a GP. The provider is contractually obligated to take a supported person to a GP within five working days of arrival if they've got a pre-existing condition or are in urgent need of an appointment, um or they've got long term conditions such as diabetes, heart problems, asthma, epilepsy, um hemophilia, non active TB HIV. If they're in urgent need of an appointment, then they're contractually obliged to take the individual within one working day. So you might wish to highlight that in relevant cases. Ok. Um And um It also talks about um dealing with matters urgently um where there's incidents that show an urgent help need. They give examples for example of severe chest pain, difficulty breathing, acute mental health issues, acute toothache, facial swelling, there's more in there. Um but important just to be aware that they really should be acting quickly in these situations and you often don't see them do that. Ok. So um moving on now to speak about a different policy, we're talking now about the asylum support policy bulletin. Um and uh what this says is that a supportive person under section 95 in an initial um dispersal or private accommodation may only be admitted to initial accommodation with authorization from the designated home office official and an individual can be moved to initial accommodation in exceptional circumstances where their accommodation is no longer adequate. So basically where somebody is in long term accommodation um under section 95 and they need to be moved and there's no other section 95 accommodation available for them in those circumstances, you might be saying can they be moved to section 98 accommodation because of the urgency of the situation and this policy will help you to address that. Um Now it talks about exceptional circumstances and the other accommodation no longer being adequate. And the examples that it gives though in those scenarios are uh might not be appropriate for them to stay there because of domestic violence because there's been a racist incident or racial harassment, they faced a serious incident or there's a significant property defect. Um So it is possible to make these requests and, and sometimes it is the only option indeed to try to get somebody moved urgently moving on from that one and asylum seekers with care needs if somebody has a particular care need. Um then there is a policy that addresses that as well. And um basically, since April 2015, we've had the Care Act 2014. And what that does is it outlines the ways in which local authorities should carry out needs and carers assessments. Um how local authorities should determine who's eligible for their care and um how they should charge for residential care and community care and plan for care um provision holistically. Now, basically, what's really important to remember is local authorities in England are obliged under the Care Act to assess any person who appears to need care and support and provide appropriate care in accordance with their assessment. And um what the guidance says is that under section 18, 1 of the Care Act, what's required is that a local authority meets eligible needs for care and support if the adult is ordinarily resident in the authority's area or is present in its area, but of no settled residents. So that basically means if the asylum seeker is in their area and they've got care needs, then they need to be assessed by the local authority whose area they are in. Um, and, and whose area they're in presently at that time. Um, and, um, that's really all that I want to draw to your attention from this guidance. But, um, it's just really so that you're mindful that in some cases, um, it might be appropriate to get, um, a care assessment by a local authority. And indeed, that might be quicker, um, in trying to meet the individual's needs than waiting for the home office to do so. And there indeed are duties for local authorities to do this. Ok. And then finally, the section 55 guide as well. This is section 55 of the 2002 Act which basically allows the Secretary of State to prevent support where somebody hasn't claimed asylum as soon as reasonably practicable. Now, um this guidance basically sets out what's a reasonably practicable period whether they um should provide support where somebody hasn't claimed asylum as soon as reasonably practicable. It talks about how uh if somebody claims after three days of arrival, that is reasonably practicable. Uh But that's only a guideline and talks about how someone's state of mind, their individual circumstances need to be taken into account. Any instructions that they've been given by third parties such as agents who facilitated their entry need to be taken into account. Um Also, it makes clear section 55 subsection five A provides that the Secretary of state is not prevented from exercising their power to provide support to the extent that necessary to avoid a breach of the person's rights under the ec hr So basically they can provide support anyway. Um Even if somebody is delayed in claiming asylum, ok, that's all that I really want to say about that um document and now I want to move on to discuss authorities. There are quite a few authorities that are on your list now. Um obviously, because this is a um short session, um I am just going to highlight some relevant parts of that uh of the authorities that are on the list, but it's worth you looking at these cases in form. Now, um The first one that I want to discuss is Adam Limbu and Taima, which is the first bullet point on this side. And what that basically held is that um there can be a breach of article three in failing to provide accommodation um inhuman or degrading treatment or punishment. Assessment of this was relative. It all depends on the circumstances of the case, the nature and context of the treatment or punishment. That is an issue. Now, what was said was that um in looking at the treatment to which the asylum seeker is being um subjected, the entire package of restrictions and deprivations that surround the individual might be so severe that it might meet the threshold. Um Lots of different factors come into play in the assessment, whether the individual is male, female elderly in poor health, whether they've explored all avenues of assistance and the length of time that they've um spent or is likely to be spent without support, the exposure to elements that uh result from rough sleeping risk to health and safety, lack of access to toilet and washing facilities, humiliation and sense of despair that arises as a result of that. Um whether or not they would only be able to survive by resorting to begging. Um So it's a useful case for you to um uh have in mind. Um Now, the next case that I um want to refer to is the fourth bullet point on this handout. It's unama unam mayo. Um And it, what it really highlighted at paragraph 30 of the decision was that there is a difference in assessing destitution under section 98 and section 95 with section 98 saying um what needs to be looked at is whether a person may be destitute. But with section 95 we're looking at whether they appear to be destitute or likely to become destitute. And it said there is a real difference there. Uh Blackwood is the next case that I want to address with you. Blackwood is a useful case where um you want um to um look at somebody who has got particular ties to an area and you're relying on article a. Now it was a very unusual case. It was somebody who was brought here as a child by an auntie. And um, she had ties in her area. She'd attended, um, school, sought work there. Uh, she'd made friendships and she'd had quite a difficult life. Um, and um, it was only as an adult when she went to apply for a job that she discovered that she was here unlawfully. And um, the home office wanted to disperse her. And what was considered was article eight in that case, and it was considered wasn't limited to family life, but it also extended to private life and physical and psychological integrity for the individual. And what had to be considered was the effect on the individual uh and her child in looking at dispersal in this case. And what the court said um was that this was somebody who um had an unusual case. She had roots in a particular part of the country. She'd made friends. She was reliant on those friends for support. Her relationship with her mom had broken down, but she was trying to re-establish that as far as possible. She'd got a young child, she wanted to work. Um And um she was only in this situation for reasons out of her control. Um And those circumstances had to be taken into account properly. There was also a psychology report produced and what that said was dispersal would have a damaging effect on mental health. She would likely to be su likely to suffer significantly, she'd have worsened levels of depression. Um And um that would lead to an increase in dependency on social and mental health support services further. What was said was that the attitude towards that appeared not to um take into account those matters properly. And uh in this case, it was, it was not considered that she could properly be um dispersed or that her circumstances had been taken into account properly. Um So when Django is a case that highlights the importance of medical evidence being detailed, that it properly addresses the question that the um home office and the court need to consider. Um I'll move on from that and I'll discuss the next case which is Shallah Shallah really highlights that um asylum support, medical advisors do not have access to seeing the client and assessing them face to face. Whereas um the applicant phone doctors are likely to have done that. And in looking at the asylum support medical advisors opinions that needs to be taken into account and compare when comparing it with the other evidence that is um available in a case. So it's a useful case to refer to where you've got asylum support, medical advisors opinions and the next case that's on your hand out um guest. Um Also highlights that too IO is a very useful case for you to refer to when you are arguing about the rationality of a home office decision. What it says is that a rational decision requires consideration of the claimant's circumstances. All relevant matters including medical evidence and the defendant's own policy. And um uh the a decision maker needs to explain reasons for dispersal when they um are making a decision when somebody has requested, made a specific request, a failure to offer reasons for a decision can justify an inference that the actual reasons are inadequate or contrary to policy. And um the purpose of the policy is to prevent arbitrary decision making and to provide structured consideration in order to avoid damage to the health of those being subject to dispersal. So it's a really useful case where you're relying on policy and you've not got good reason, decisions from the home office. Um ok. Now, um other guidance and um case or I want to just bring to your attention, the home office guide to living in asylum accommodation. Um That's dated 2019, July 2019 and that said that the normal amount of time spent in initial accommodation was 3 to 4 weeks. Now, obviously, this is now about four years old. Um But in a case called JM, what was said that the average delay prior to the pandemic for people moving from section 98 to section 95 accommodation was 35 days. So it was in line with that. Now, um JM um what was considered there was the delays that had resulted as a result of the pandemic and people um it was said that ministers has ministers had expected people to be remaining in hotel accommodation for 3 to 4 months as expect as, as opposed to 35 days. But what we now know is actually it can be at nine months, even a year, uh even longer than that. Now, um what the court said was that the pandemic did not change the nature of the duty under section 95. The the Secretary of State continued to be under a legal duty to provide section 95 support to individuals um And, and to help them to meet the e essential living needs. Um But the exceptional circumstances of the pandemic may justify a departure from normal gold plated standards. So they had sympathy for the Secretary of State and that sympathy has continued in other cases too. Uh Sally, um uh Sliih is an, is another case that dealt with delay in the provision of section four accommodation. Um And so, um it's a case worth you considering where you are um arguing delay. Um But what the court said at paragraph 66 was that they couldn't specify what resources must be devoted to administering the section four scheme or what delay in general was lawful and what delay in general was not, everything had to be based on the facts of an individual case. Um mknah um also dealt with um how there was a large number of fresh claims. A number of those were often unm meritorious. Um so that has to be taken into account in looking at provision of accommodation um matam Bearer. Um not what was said there in paragraph 11, nothing prevents the provision of temporary accommodation before the determination on the substantial right to accommodation ba on the basis of destitution. So basically they can provide section 98 accommodation for quite some time. Uh But paragraph 17, it's incumbent on the Secretary of State to put in place a system which deals specifically with the problem. So, um they must be um uh dealing with the, with the situation of accommodation uh to meet their duties under section 95 but they did weren't willing and under section four, of course, but this state case be dealt specifically with section four, but they didn't go um much further than that in this case in as saying, uh what was uh lawful unlawful? Um D ma um is the next case that is on the handout. Um Now the Secretary of State accepted at paragraph 100 and 78 of that decision that there was a legal requirement for the provision of accommodation to be within a reasonable period of time. Um And that she was under a duty to provide accommodation once she accepted that somebody was entitled to support. Um Now, um in terms of reasonable period of time, um it look what we're looking at is the context in which that duty falls to be performed and any prejudice that might be caused by delay. So again, it's all individual fact circumstances, um no specific time frame. Um A H and another that was a case in which there was a request um um for uh interim relief and um urgency and what was said um was that there needed to be a consideration of the current influx of refugees, which was presenting the government with very difficult challenges as regards accommodation and support. And the law required refugees to be accommodated and supported at a level of adequacy which staved off destitution. And that would vary depending on the de demands being made on the government from time to time. So there that you can see that they're quite sympathetic to um the home office and um the shortages of accommodation and the pandemic and the impact on the number of refugees as well that are coming in. However, a nice case for us to end on on this section is a um it's a recent high court decision where there was a mother and um initially four Children but then became five sorry, initially three Children then became four Children who were in temporary section 98 hotel accommodation for the best part of a year and it was supposed to be temporary. But um what the court said is the evidence showed it was the hotel accommodation was too small for a family of five. It was severely cramped. Um and there were photographs provided which showed that there wasn't even enough floor space to sit down. They had two single wide um with boat beds um that uh in one room that had slightly more space, but in the other room, a double width bunk bed, um which didn't have enough space. Um The um m mum had a baby, she didn't have many baby clothes, so she had to wash and dry them. The hotel provided a laundry service once a week but it didn't deal with the her baby's needs um because she didn't have enough clothes for the baby. She tried to wash the clothes herself, but the hotel asked her to stop that because it was causing damp. Um And what was said was that the home office was legally obliged to provide adequate accommodation to asylum seekers and their dependents. Now it might have been adequate this accommodation if it was for a short period of time, but here the length of time they were there made it inadequate. Um And uh the Children didn't have anywhere to play, there wasn't separate eating facilities. They were, didn't have a space to do their homework. Now, home office suggested all of that was wrong but they didn't provide any evidence in support of that submission. And what the court commented on was the complete absence of record keeping or decision making or a value of assessment from the home office. Um So um it is possible to succeed in challenges where people are in hotel accommodation for a very lengthy period of time. Now, in some cases, you will need to um make applications for uh on an urgent basis to seek interim relief, to ask for Acknowledgments of services to be provided within a shorter timescale because of the urgency of the situation for your client and their family members. Um Just some practical tips for you to think about when your client is thinking about applying for asylum support. Um You need to be referring them to uh migrant help, they need to complete an asylum support form um to be submitted to the home office. You, you need to be looking at the adequacy of accommodation based on their circumstances and everything we've gone through will assist you with that it might be the home office has not taken into account their individual circumstances. If there is a delay in look in providing section 95 or section four support, then uh there might be a challenge. There have a think about the case of S A where it's getting too long um or the accommodation is inadequate even under section 98. Then do you need to think about bringing the judicial review? Do you need to do a preaction letter? How urgently do you need to deal with all of this? Have you sent enough correspondent to the home office um to ask them to move the client, to explain the circumstances. Have you evidenced their situation? Have you provided photographs of how inadequate their accommodation is? Are there witness statements if it's based on religious needs? Are you explaining how far they are from being able to access a church or a temple or a mosque if you are um making applications? Um asking for interim relief. Your test is the test in a American Cyanamid which I've set out on the handout be mindful of Hamid. Um and cases such as but an example of a successful interim relief challenges. A case of Qh though there are several others. Um And then finally, Bibi Stockholm, no doubt all of you have heard about the vessel on which asylum seekers are to be accommodated. Initially, guidance was bought out at the start of October but it was updated on the 25th of October. What the home office says is that uh it provides non detained accommodation for single adult male asylum seekers aged 18 to 65 who would otherwise be destitute. Um It's not for women, it's not for Children, it's not for the elderly. Um where an individual is um going to is identified for a move to the vessel, they'll be sent a notice of relocation letter and um a notice to quit. Um An individual is supposed to make representations to the home office within five working days to explain why they shouldn't be moved and those representations will be considered alongside the allocation of accommodation guidance, um which we've already been through. Now. Um It talks about how they might not be suitable if um they're not suitable for room sharing uh for napier accommodation X mod sites if they've got a positive and reasonable grounds decision as a victim of trafficking um or they've been referred into the NRM or they're vulnerable. Now, we've been through vulnerability, they've got serious mobility or physical disability issues or they've got complex health needs in accordance with the healthcare needs and pregnancy dispersal policy. Um So go through um this policy and the allocation of accommodation guidance in detail where you have got a client that where there's a proposal that they be moved here. It said that their representations will be considered within no more than five working days. Um They can refer cases to the home office, asylum, support, medical advisor and home office psychiatrist for their opinion. Um If somebody doesn't comply with a request to relocate, um then basically the individual will be evicted from their current accommodation. Um And um that uh they would have to restart and be make a request for support and accommodation. Uh but read the guidance in full where you have got one of these cases. It's not a very long document. Um And certainly there may well be um serious challenges to bring where people are not suitable to be moved. And um the home office maintains that they are going to be moved under this guidance. So this is a quite long session that I've provided. There was lots of materials that uh we have been through. I really do hope you found it um useful. Um I apologize for my lighting in this session. The sun is quite bright. Um But hopefully you've been able to hear me and follow it all and thank you so much for joining me on this session and the other data law sessions too.
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