14 Dec Home Office / Private Contract Delay Shambles
DPG acting for five clients in an important case about systemic issues with section 4 support.
IN A JUDGMENT HANDED DOWN IN THE HIGH COURT TODAY, 14 DECEMBER 2020, ROBIN KNOWLES J CBE HELD THAT THE HOME OFFICE IS IN BREACH OF ITS DUTIES UNDER ARTICLE 3 OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS AND SECTION 4 OF THE IMMIGRATION AND ASYLUM ACT 1999 TO PROTECT DESTITUTE PEOPLE AGAINST INHUMAN AND DEGRADING TREATMENT CAUSED BY HOMELESSNESS. ADDITIONALLY, THAT THE HOME OFFICE’S FAILURES TO MONITOR THE NUMBER OF DISABLED PEOPLE IT ACCOMMODATES ARE FOUND TO HAVE LED TO LENGTHY AND UNLAWFUL SYSTEMIC DELAYS.
WHOLESALE FAILURES TO MONITOR THE IMPLEMENTATION AND OPERATION OF CONTRACTS AWARDED TO PRIVATE COMPANIES ARE FOUND TO HAVE LED TO LENGTHY AND UNLAWFUL DELAYS IN THE PROVISION OF ACCOMMODATION AND SUPPORT TO DESTITUTE PEOPLE.
Parliament has passed a law (section 4 of the Immigration and Asylum Act 1999) stating that adequate accommodation and financial support must be provided to people who are imminently destitute or imminently facing a risk of inhuman or degrading treatment contrary to article 3 ECHR. The Home Office has chosen to fulfil its duties to provide this support by entering into contracts with private companies. Despite the importance and value of these contracts (worth £4bn over 10 years), the Home Office has systemically failed to monitor the implementation and operation of the contracts. The judge explained (§229) that “monitoring” here included identifying the characteristics of each individual involved; following the progress of the case; being alert to risks of inhuman treatment from a failure to accommodate; regularly reviewed their situation and recorded; reviewing and learning lessons when things went wrong. The Judge agreed that the evidence of the Home Office’s system for enforcing performance standards against its private sector contractors was “chaotic” (para 160).
The Court held additionally that the Home Office’s failure to monitor the provision of accommodation to disabled migrants is in breach of the Public Sector Equality Duty (s149 of the Equality Act 2010), by failing to have due regard to the need to eliminate discrimination and to the need to advance equality of opportunity between disabled people and non-disabled people in receipt of asylum support. The Judge rejected the submission by the Secretary of State that disability discrimination was justified on the grounds of immigration control (paras 260-261).
Further, the Home Office had discriminated unlawfully against AA by subjecting him to unfavourable treatment because of something arising from his disability, namely, his particular accommodation needs. The Home Office had also breached the duty to make reasonable adjustments for disabled people by failing to implement an effective system of prioritisation and by failing to monitor disabled people who it owed a duty to accommodate under section 4(2). The judge highlights that the Home Office’s economic incentives within the contract it has with its private accommodation contractors risks there being a negative impact on disabled people as their accommodation needs are “less profitable (or even unprofitable)” (para 277).
The lengthy judgment handed down this morning is highly critical of the government’s ongoing failure to monitor, and their lack of engagement with this failure: “It is not possible to reconcile the state of knowledge of the Secretary of State and her officials with the monitoring that is said to be present and is described above. There cannot have been proper monitoring.” (para 65 of the judgment) and again at paragraph 200 the judge finds “The claimants’ cases, and the figures provided to the court, show that the monitoring arrangements either did not happen or do not work”.
The judgment stresses that particularly where the failure of a private contractual arrangement can lead to a breach of Article 3, the government’s failure to know how the contract is being performed is unlawful. Finally, the Judge called for a more constructive approach from the Secretary of State to ensure that the asylum support system wins confidence and respect (para 317).
Solicitors representing DMA, AHK, BK and ELN : Deighton Pierce Glynn – Polly Glynn and Lola Afolabi
Press release for DMA, AHK, BK and ELN here
Press release for AA here