14 Mar High Court finds the Home Secretary acted unlawfully in accommodating three asylum seekers at RAF Wethersfield

Summary

In a significant ruling today, the High Court of Justice has found that the Home Secretary acted unlawfully and in breach of her duties under the Immigration and Asylum Act 1999 by accommodating three vulnerable asylum seekers – TG, MN, and HAA – at RAF Wethersfield. These individuals are victims of trafficking, torture and/or serious physical violence who each suffered a serious decline in their mental health as a result of living at Wethersfield. In relation to TG, Mr Justice Mould held that the Defendant also discriminated against him by accommodating him at Wethersfield in breach of its duty to make reasonable adjustments for his disabilities under the Equality Act 2010.

Further, and importantly, the High Court held that the Home Secretary had made “a most serious and inexplicable omission” in failing to assess the equalities impact when amending its asylum accommodation policy, the effect of which was that vulnerable asylum seekers with special needs or disabilities may be judged suitable to be accommodated at Wethersfield. In particular, on the evidence before the Court, the Judge found that “this amounted to the clearest failure on the part of the defendant to fulfil the PSED” (the public sector equality duty under the Equality Act 2010) and that no other conclusion than a breach could be found. The Court went on to find that this serious breach of the public sector equality duty has “carried forward” into the next version of the policy and remains a continuing breach.

In rejecting a systemic argument by the Claimants, the High Court found that the Home Secretary’s updated policies and procedures for identifying asylum seekers unsuitable for Wethersfield, which were only introduced after the Claimants and hundreds of others had been moved to Wethersfield and these proceedings had begun, was now a system capable of operating lawfully. However, no ruling was made on the system’s lawfulness when the Claimants were in Wethersfield between August 2023 and February 2024. Moreover, the breaches found by the Judge in the cases of TG, MN and HAA illustrate that the Home Secretary is not only required to have a system capable of operating lawfully, she must act lawfully in each individual case, and the failure to do so in an individual case will still be unlawful and a breach of her duty to provide adequate accommodation to destitute asylum seekers.

Background

During the lifetime of this claim, the Home Office had published four different versions of the Allocation of Asylum Accommodation Policy – versions 9, 10, 11 and 12.

On 12 July 2023, the Home Office published version 9 of the policy and began accommodating asylum seekers at RAF Wethersfield, initially planning to accommodate up to 1,700 asylum seekers at the site. Clearsprings Ready Homes were contracted by the Home Office to manage the site.

Between November 2023 and January 2024, MN and HAA, represented by DPG, TG, represented by Gold Jennings, and MJ, represented by Duncan Lewis, issued claims for judicial review after being accommodated at the controversial military site. They challenged the failure of the Home Secretary to provide them with adequate accommodation in breach of her duty to do so under section 95 of the Immigration and Asylum Act 1999. They were selected as “Lead Claimants” by the High Court after hundreds of asylum seekers sent pre-action letters and more than a dozen claims were issued by asylum seekers at the site complaining of unlawful treatment.

TG, MN and HAA in joint grounds challenged the use of the site on a number of grounds, including the lawfulness of accommodating them in Wethersfield and the Home Secretary’s systems for identifying those unsuitable for Wethersfield as victims of trafficking, torture, serious physical violence or mental health or disabilities. Their cases were heard by Mr Justice Mould during a four-day trial between 23 and 26 July 2024, together with MJ. The Court heard evidence that:

• The health of asylum seekers on the site was being seriously harmed by being accommodated at Wethersfield;
• The Independent Chief Inspector of Borders and Immigration raised alarm bells to the Home Office in December 2023 and January 2024 about a wide pattern of disorder at the site;
• Reports commissioned by the Home Office from the British Red Cross and the Management & Training Corporation (MTC), and provided to the Home Office in February and May 2024, revealed serious concerns about the arrangements and operations at the barracks, including recurring violence, high levels of suicidal ideation and overwhelmed staff, untrained in safeguarding of vulnerable asylum seekers, struggling to provide a very basic service; and
• Violent incidents, harassment and victimisation motivated by racial tensions and discrimination took place under the Home Office’s watch.

Judgment

In upholding the claims of TG, MN and HAA, Mr Justice Mould found that they were unlawfully accommodated by the Home Secretary at RAF Wethersfield. Mr Justice Mould found:

In respect of TG, a victim of trafficking and serious physical violence:

• Despite TG informing the Home Office before and post-transfer that he was a victim of trafficking who had been “beaten badly by the traffickers”, and his trafficking support worker requesting his urgent transfer due the serious harm being caused to his mental health, this information was overlooked.
• The Home Secretary “acted unreasonably and unlawfully in failing both to have regard to credible evidence that he was the victim of human trafficking and properly to apply her Allocation Policy. In consequence, TG was unlawfully accommodated at Wethersfield…”
• TG was disabled and suffering from PTSD and depression and that Wethersfield had a “harmful and disabling impact on his mental health”.
• Mr Justice Mould said there “is a clear element of culpability on the part of the defendant. The information provided by TG which should have alerted the defendant to the fact that he was unsuitable for Wethersfield was overlooked. He was accommodated in breach of the defendant’s own policy designed to address his vulnerabilities. It was clearly foreseeable that, as a result, TG would suffer deterioration in his mental health as a result of being accommodated at Wethersfield”.
• That had the Home Secretary not overlooked serious indicators of trafficking and modern slavery she would have been able to anticipate that Wethersfield would present a “substantial risk of damaging his mental health” and taken steps to avoid that risk.
• The Home Secretary “failed to make the reasonable adjustment in favour of TG for which she had provided in her Allocation Policy” and accordingly breached the Equality Act 2010.

In respect of MN, a victim of trafficking and torture:

• The Home Office failed to apply her own policy in failing to review MN’s suitability to remain on the site after he provided medical evidence that his health was deteriorating. In doing so, MN was unlawfully accommodated at RAF Wethersfield.
• That it was “entirely understandable” that his mood and mental health deteriorated following his continued accommodation at RAF Wethersfield.
• The Home Secretary provided no convincing evidence that she had properly reviewed MN’s suitability to remain on the site after he provided psychological evidence.

In respect of HAA, another victim of torture and trafficking:

• That the Home Office did not properly consider matters that were “central” to the assessment of HAA’s suitability to remain at Wethersfield. This included information given before his accommodation at the site which should have put the Home Secretary on notice that “this was a potentially vulnerable individual whose accommodation in room sharing at a large occupancy site such as Wethersfield may become unsuitable over time.”
• Mr Justice Mould criticised the Home Secretary’s reliance on medical advisor Dr Wilson stating: “It is striking that Dr Wilson saw HAA’s evident vulnerabilities as justification enough to advise a low threshold for moving him, irrespective of any formal diagnosis. The adjustment difficulties and isolation in HAA’s current setting to which Dr Wilson referred should have been just as evident to the defendant when she made her determination on 15 January 2024. There was a body of evidence available to her far in excess of what had been said in the pre-action letter of 21 December 2024.”
• In failing to act lawfully and in line with her policy, HAA established that the Home Secretary’s decision that asylum accommodation at Wethersfield was adequate to meet his needs was unlawful.

In respect of MJ, represented by Duncan Lewis, the claim was dismissed on all grounds.

Allocation of accommodation policy – Public Sector Equality Duties

Significantly, Mr Justice Mould found that the Home Secretary acted unlawfully, and in breach of the Equality Act, by failing to take into consideration equality impacts when promulgating version 11 of the Home Office’s Allocation of Asylum Accommodation Policy. The judge said:

 “The Policy EIA makes no attempt to assess the equalities implications of the change in policy which was then proposed, the effect of which was that asylum seekers who were disabled or had serious mental health issues may henceforth be judged to be suitable for accommodation at Wethersfield provided that their special needs were able to be met at the site. That is a most serious and inexplicable omission…It amounts to the clearest failure on the part of the defendant to fulfil the PSED…the only conclusion I am able to reach on the evidence is that the defendant did not attempt to assess the equalities impact of the proposed policy change” (para 319)

Mr Justice Mould went on to state that he could not be satisfied that ministers were “aware of the equality implications of the proposed change, let alone appreciate them sufficiently to be able to evaluate the equalities impacts of the change in policy when deciding to proceed with it” (para 320) and that:

1. “The defendant did not fulfil the PSED before and at the time when the proposed change was later promulgated in version 11 of the Allocation Policy was being considered”.
2. “The defendant did not assess the risk and the extent of any adverse impacts and the ways in which such risk might be eliminated before the adoption of that change of policy into version 11 of the Allocation Policy.
3. “The Policy EIA does not disclose any, let alone proper appreciation of the potential impact of the proposed change on equality objective and the desirability of promoting them”.

Mr Justice Mould found that the breach is a continuing one, “carried forward” into the current version (version 12) of the policy as the Home Secretary’s evidence to the Court was that no further equalities impact assessment was conducted before version 12 was implemented in March 2024. This remains the version of the policy currently in operation and the PSED breach therefore persists.

System for identifying asylum seekers unsuitable for Wethersfield

Considerable evidence was filed during the claims by the Claimants and NGOs working on the ground directly with vulnerable destitute asylum seekers accommodated at the barracks. The evidence was described by Mould J as “candid and carefully given” and showed that vulnerable individuals had been accommodated at Wethersfield in breach of the suitability criteria. The Defendant’s own evidence showed that approximately 236 individuals were moved in response to pre-action letters. The Defendant’s own commissioned independent reports from the British Red Cross and MTC also revealed that staff were untrained in safeguarding, and that the British Red Cross found a prevailing culture of degradation and disbelief in the barracks, when it conducted the investigation for the Home Office in February and March 2024.

Despite this, the judge decided that his “approach must be to accept” the “defendant’s witnesses’ account of conditions and the actual operation of asylum accommodation in Wethersfield” as correct, unless he was persuaded this evidence was “internally contradictory or inherently implausible” or there existed “incontrovertible” evidence to the contrary. Consequently, Mr Justice Mould proceeded on the basis of the facts as stated in the Defendant’s written evidence, all of which was only filed in May 2024 about the system as operated then (and not in respect of the system as operated between August 2023 – February 2024 when the Claimants were in the barracks).

Whilst Mr Justice Mould ultimately did not find that the Defendant’s systems, implemented after these proceedings had begun and in operation at the time of the hearing, was incapable of operating lawfully, he did note:

“In the light of the evidence, it would be idle to deny that there is force in the criticisms made by and on behalf of the claimants of the adequacy of the current arrangements for monitoring the suitability of asylum seekers to continue to be accommodated at Wethersfield. The fact that the defendant’s witnesses acknowledge the need for improvements in staff training is of particular concern, as are the observations made by the MTC Report about the pressure on welfare staff at the site.”

Future use of RAF Wethersfield

Despite Prime Minister Keir Starmer vowing to shut down RAF Wethersfield if his party won power, RAF Wethersfield is continuing to be used by the government to accommodate asylum seekers including those who may be vulnerable or have in the past experienced torture, human trafficking and/or modern slavery. The Home Office this year decided to increase the number of asylum seekers accommodated at the site. This was despite significant local opposition including by Braintree District Council.

Freedom of Information Act requests have recently also exposed that there were more than one safeguarding incidents reported per day last year, affecting vulnerable destitute asylum seekers some of which involved serious injuries, violent behaviour and incidents of self-harm and attempted suicide.

Emily Soothill of DPG commented:

“Based on government evidence, the High Court has found that the Home Secretary acted unlawfully in accommodating our clients at Wethersfield. People seeking asylum, especially victims of torture and trafficking, are more vulnerable to physical and mental illness. They have the right to be treated with dignity and should not be accommodated en masse in military barracks. Despite this, DPG has represented over 75 vulnerable asylum seekers who were unsuitable to be accommodated at Wethersfield and were only transferred out after we intervened and approximately 800 people remain accommodated at Wethersfield. We urge Yvette Cooper to reflect on this judgment, end the use of large sites and close Wethersfield once and for all”.

Clare Jennings of Gold Jennings commented:

“We are delighted that the High Court has acknowledged the significant failings in the treatment of our client, TG, by the Home Secretary, and the detrimental impact that being in Wethersfield had on his already fragile mental health. Based on our work with the residents of Wethersfield, TG’s experience was not uncommon, and we encountered dozens of asylum seekers who we considered were unsuitable for Wethersfield. We are concerned that the continued use of large, ex-military sites, to house asylum seekers remains highly problematic and puts vulnerable people at risk. With this and the findings in this judgment in mind, it is hoped the Home Secretary will stop the use of large sites such as Wethersfield and provide adequate and suitable accommodation to vulnerable asylum seekers who have gone through unimaginable trauma and come to our country seeking protection and safety”.   

Maddie Harris of Humans For Rights Network commented:

“Placing people in camp accommodation on ex-military sites is an inhumane way to treat those seeking protection. It causes additional pain and trauma to people who have already experienced conflict, oppression, abuse, torture and trafficking. The Home Office is taking a real and unnecessary risk in continuing to accommodate men in Wethersfield in this way, given the clear and ongoing level of suicidal ideation expressed by these and many other men currently held there. Wethersfield must immediately be closed, and those housed there provided with safe, secure accommodation in communities.” 

Legal teams

Emily Soothill, Sue Willman, Unkha Banda, Ahmed Ali, Tabatha Pinto, Evie Oldfield, Sophie Broke and Yashna Patel from Deighton Pierce Glynn are instructed by MN and HAA.

Clare Jennings, Olivia Halse, Alex Hogg, Rachel Etheridge, Elinor Kirchwey and Lea Lehouck of Gold Jennings Solicitors are instructed by TG.

Counsel instructed to act for TG, MN and HAA are Angus McCullough KC of 1 Crown Office Row, Shu Shin Luh and Sarah Dobbie of Doughty Street Chambers, and Ben Amunwa of 3PB Barristers.

Duncan Lewis acted for MJ, instructing Alex Goodman KC and Miranda Butler of Landmark Chambers.

Invaluable evidence in support of the claims was provided by Human for Rights Network, Care4Calais, Doctors of the World, Helen Bamber Foundation and RAMA.

Notes to editors

1. Judgment can be found here
2. For press enquiries contact
   1. Gold Jennings on +44 (0) 20 8445 9268 or by email to clare@goldjennings.co.uk and olivia@goldjennings.co.uk
   2. DPG on 02074070007 or by email to esoothill@dpglaw.co.uk, aali@dpglaw.co.uk and ubandha@dpglaw.co.uk