NB & Ors, R (On the Application Of) v Secretary of State for the Home Department

Section 95 IAA 1999 provides, so far as material, as follows:

“95.

— Persons for whom support may be provided.

(1)

The Secretary of State may provide, or arrange for the provision of, support for—

(a)

asylum-seekers, or

(b)

dependants of asylum-seekers, who appear to the Secretary of State to be destitute or to be likely to become destitute within such period as may be prescribed.”

(2)

…

(3)

For the purposes of this section, a person is destitute if—

(a)

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 his other essential living needs…. (emphasis added)

Pursuant to section 95(5)(a), Regulation 8 Asylum Support Regulations (SI 2000/704) prescribes matters to which the Secretary of State must have regard when considering whether the existing accommodation of a person applying for accommodation under section 95 is adequate. Under Regulation 8(3) these matters include:

“(a)

whether it would be reasonable for the person to continue to occupy the accommodation;

…. (c) whether the accommodation is provided under section 98 of the Act, or otherwise on an emergency basis, only while the claim for asylum support is being determined…”

Section 96(1) IAA 1999 provides, so far as material:

“96.

— Ways in which support may be provided.

(1)

Support may be provided under section 95—

(a)

by providing accommodation appearing to the Secretary of State to be adequate for the needs of the supported person and his dependants (if any);

(b)

by providing what appear to the Secretary of State to be essential living needs of the supported person and his dependants (if any); ….

(2)

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 he considers necessary to enable the supported person and his dependants (if any) to be supported.”

Section 98 provides for the provision of temporary support to asylum seekers pending a decision under section 95 where it appears to the Secretary of State that they may be destitute.

The RCD of 27 January 2003 laid down certain minimum standards for the reception of asylum seekers. This Directive remains relevant notwithstanding the United Kingdom’s withdrawal from the European Union for reasons I will come to.

Recital (5) to the RCD states:

“This Directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union. In particular, this Directive seeks to ensure full respect for human dignity and to promote the application of Articles 1 and 18 of the said Charter.” (emphasis added)

Recital (7) notes:

“Minimum standards for the reception of asylum seekers that will normally suffice to ensure them a dignified standard of living and comparable living conditions in all Member States should be laid down.” (emphasis added) 134. Under the heading “Purpose” Article 1 RCD states:

“The purpose of this Directive is to lay down minimum standards for the reception of asylum seekers in Member States”

Under Article 2(f) “material reception conditions” are defined as follows:

“’material reception conditions’ shall mean the reception conditions that include housing, food and clothing, provided in kind, or as financial allowances or in vouchers, and a daily expenses allowance;” (emphasis added)

Article 13 sets out “General rules on material reception conditions and health care”. Articles 13.1 and 13.2 provide as follows:

“1.

Member States shall ensure that material reception conditions are available to applicants when they make their application for asylum.

2.

Member States shall make provisions on material reception conditions to ensure a standard of living adequate for the health of applicants and capable of ensuring their subsistence. Member States shall ensure that that standard of living is met in the specific situation of persons who have special needs, in accordance with Article 17, as well as in relation to the situation of persons who are in detention.” (emphasis added)

Article 17 provides, as a “General principle” as follows:

“1.

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 and persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence, in the national legislation implementing the provisions of Chapter II relating to material reception conditions and health care.

2.

Paragraph 1 shall apply only to persons found to have special needs after an individual evaluation of their situation.” (emphasis added)

In the particular case of the provision of material reception conditions in the form of housing, Article 14 provides, under the heading “Modalities for material reception conditions”:

“1.

Where housing is provided in kind, it should take one or a combination of the following forms:

(a)

premises used for the purpose of housing applicants during the examination of an application for asylum lodged at the border;

(b)

accommodation centres which guarantee an adequate standard of living;

(c)

private houses, flats, hotels or other premises adapted for housing applicants……

5.

Persons working in accommodation centres shall be adequately trained and shall be bound by the confidentiality principle as defined in the national law in relation to any information they obtain in the course”. (emphasis added)

It is on the basis of Article 14.1 (b) that the Claimants concede that in principle it was open to the Defendant to provide accommodation in the form of an accommodation centre rather than individualised accommodation.

Article 15 of the RCD provides, under the heading “Health care”:

“1.

Member States shall ensure that applicants receive the necessary health care which shall include, at least, emergency care and essential treatment of illness.

2.

Member States shall provide necessary medical or other assistance to applicants who have special needs.” 141. I also note Article 14.8:

“8.

Member States may exceptionally set modalities for material reception conditions different from those provided for in this Article, for a reasonable period which shall be as short as possible, when:

— an initial assessment of the specific needs of the applicant is required,

— material reception conditions, as provided for in this Article, are not available in a certain geographical area,

— housing capacities normally available are temporarily exhausted,

— the asylum seeker is in detention or confined to border posts.

These different conditions shall cover in any case basic needs.” (emphasis added)

Mr Hickman relied on this provision to submit that the standard of adequacy contemplated by the RCD is therefore higher than merely covering basic needs. For her part, Ms Giovannetti confirmed that she did not rely on Article 14.8.

In the United Kingdom the RCD was implemented in part through existing health, education and community care provisions, with amendments to policy, and in part through the Asylum Seekers (Reception Conditions) Regulations 2005 SI 2005/7 (“the 2005 Regulations”). By Regulation 5, the powers to provide support under sections 95 and 98 became duties if the asylum seeker is considered to be eligible and, in the case of section 95 applies, for support. Reflecting Article 17 RCD, Regulation 4 provides:

Regulations 4(3) and (4) were intended to reflect Article 17.2 RCD and they are relevant to Ground 2.

There is an issue as to the standard of review in relation to section 96 IAA 1999, which is essentially as follows. The parties agree that, until 31 December 2020, under section 96(1)(b) provision for the essential living needs of the supported person other than accommodation could not fall below the minimum required by the RCD. If it did, this would be unlawful and irrational notwithstanding that the section specifically entitles the supported person only to such support as appears to the Secretary of State to be essential. This was the effect of the decision of Popplewell J (as he then was) in R (Refugee Action) v Secretary of State for the Home Department [2014] EWHC 1033 (Admin) (“the Refugee Action case”). Ms Giovannetti submits, however, that this principle has been recognised in relation to section 96(1)(b) only and/or that there is no basis for holding that the approach in the Refugee Action case is applicable to section 96(1)(a) given the withdrawal of the United Kingdom from the European Union, and given the terms of the European Union (Withdrawal) Act 2018 (“the EUWA”).

In the Refugee Action case, the complaint was that the Secretary of State had decided that the level of support provided in cash to meet the essential living needs of asylum seekers for the financial year 2013/2014 should remain frozen at the rates which had applied since 2011. The relevant ground of challenge for present purposes was that this decision was incompatible with the RCD and irrational. The Secretary of State was said not to have conducted a sufficient investigation into the level of support necessary to meet essential living needs, and to have failed to take into account relevant essential needs.

At [85] Popplewell J said:

“…. The Marleasing principle requires national legislation to be interpreted in a manner which is consistent with and gives effect to EU Directives. The content of the duty imposed upon the Secretary of State, by a combination of section 95 of the 1999 Act and Regulation 5 of the AS Regulations 2005, is informed by the European law obligations imposed by the Reception Directive. Provision for essential living needs must therefore be interpreted as including, as a minimum, provision of the minimum reception conditions required by the Directive. The minimum standard of living for which provision is required by the Directive is not a matter for the Secretary of State’s subjective judgment but an objective standard. To this extent it is not open to her to treat essential living needs as having a lesser content than the objective minimum required by the Directive. Section 95 and 96 must be interpreted in such a way as to place such a view outside the range of reasonable judgments in order to be compatible with and give effect to the Reception Directive. If the Secretary of State were to make a judgment which treated essential living needs as something less than the minimum standard of living required by the Directive, it would be both irrational and unlawful.” (emphasis added) 148. At [87] he held that:

“…the Reception Directive requires that:

(1)

asylum support be set at a level which promotes, protects and ensures full respect for human dignity, so as to ensure a dignified standard of living: Recitals (5) and (7) and Article 1 of the Charter;

(2)

….;

(3)

asylum support be provided which is adequate to ensure asylum seekers can maintain an adequate standard of health and meet their subsistence needs: Article

13.1

of the Directive; and

the special needs of vulnerable people are provided for so as to meet this minimum standard of living: Article 13.2 and Article 17 of the Directive.” 149. At [88] he said:

These requirements of the Directive contain the minimum content of the essential living needs criterion under the 1999 Act. The Secretary of State must make provision under s.95 and 96 which is sufficient to meet this minimum standard of living, if and to the extent that such provision is not otherwise being made by another organ of the State. In assessing whether the levels of asylum support allow asylum seekers to maintain this standard of living, the length of time which they spend on asylum support, and the uncertainty of that period, is potentially relevant. It is one thing to spend a short period coping with severe poverty, another to have to cope with it for an uncertain period of years….” 150. At [91] he said:

“91 An assessment of what is essential and the extent to which something is a need involves a value judgement. The function of making that value judgement is conferred by Parliament on the elected government, in the person of the Secretary of State. Subject to compliance with the minimum content required by the Directive, her judgment on whether goods or facilities constitute a need which is essential is only open to review on the high threshold of Wednesbury unreasonableness or other established public law grounds.” (emphasis added)

It was therefore permissible for the court itself to adjudicate, against the standards set in the RCD, whether a given category of need was necessarily an essential need. Indeed, at [117] Popplewell J held that in setting allowances for asylum seekers the Secretary of State had failed to take into account certain categories of essential need including essential household goods such as washing powder, cleaning materials and disinfectant; nappies, formula milk and other special requirements of new mothers, babies and very young children and non-prescription medication. She had also failed to consider whether other categories, such as travel by public transport to meet legal advisers were essential living needs.

However, Popplewell J did not then set the amount which should have been paid to asylum seekers, as this was a matter for the Secretary of State. As he said at paragraph 3:

“It is worth emphasising at the outset that the question is not what the Court considers to be the appropriate amount to meet the essential living needs of asylum seekers. That judgment does not lie with the unelected judges, but is vested by Parliament in the elected government of the day. The latter’s decision can only be challenged on well recognised public law principles.”

The approach of Popplewell J was endorsed and adopted by the Court of Appeal in R (JK (Burundi)) v SSHD [2017] 1 WLR 4567, a case which concerned the quantification of cash payments to meet the essential needs of the children of asylum seekers: see [86]-[88] in particular. The Court of Appeal also held that the standard to be applied was one of subsistence rather than the welfare of the child or what is desirable. For example, at [59] Gross LJ said this:

“59 Thus, the aim of section 95 of the IAA 1999 is averting destitution. So too, all of sections 95, 96 and 122 speak of the provision of “essential living needs”. The language of the RCD is likewise plain: it is to ensure “minimum standards” for the reception of asylum seekers that will “normally suffice to ensure them a dignified standard of living” and “adequate for the health of claimants and capable of ensuring their subsistence”: see recital (7) of the Preamble, article 1 and article 13(2). ……. Accordingly, at least as a matter of language, the standard set is one of subsistence rather than anything more.”

Turning to Ms Giovannetti’s argument, it is true that the present case concerns accommodation under section 96(1)(a) IAA 1999, but this seems to me to be a distinction without a difference and, indeed, the point was not one which she developed orally. The principle in the Refugee Action case is equally applicable to section 96(1)(a) given that housing is expressly included in the definition of “material reception conditions” under Article 2(f) of the RCD, given that section 96(1) as a whole is concerned with “support” – accommodation and provision for essential needs are examples of such support - and given that section 96(1) represents the United Kingdom’s implementation of the RCD. Indeed, as will have been noted from the passages from the Refugee Action case which I have cited at paragraphs [147]-[152] above, the principle was said by Popplewell J to apply to sections 95 and 96, and to “support”, rather than to support under section 96(1)(b) specifically. There is also no sensible reason why the principle would apply to one type of support only given that the RCD is concerned with material reception conditions generally, that Articles 13 and 17 expressly purport to lay down general rules applicable to material reception conditions and that these are expressly stated, by Article 2(f), to include housing.

It is also true, as Ms Giovannetti submits, that there may be an analogy to be drawn between the amount of an allowance in respect of essential needs and the quality of accommodation, having accepted that accommodation is an essential need. However, at the hearing it appeared to be common ground that insofar as the RCD applied to section 96(1)(b) the scope of the Defendant’s discretion was circumscribed in that she could not take the view that accommodation which fell below the minimum standard required by the RCD, in terms of its quality, was nevertheless adequate. That minimum standard was as stated in Article 13 i.e. it had to “ensure a standard of living adequate for the health of the applicant and be capable of ensuring their subsistence”.

Ms Giovannetti appeared to accept that the “health of the applicant” referred to their mental as well as their physical health. She also accepted that the physical safety of the applicant would be an aspect of “health” when I asked her about the issue of fire risk, to which I will return.

It was also common ground that, by reason of section 1A of the EUWA the RCD continued to apply until 31 December 2020, and therefore so did the analysis in

Section 4(2) therefore makes clear that section 4(1) does not apply to rights and obligations which arise under EU directives and are not “of a kind” which had previously been recognised by any court or tribunal in the United Kingdom. Ms Giovannetti submits that there is no authority which recognises any specific right derived from the RCD in respect of the adequacy of accommodation provided under section 96(1)(a) IAA 1999. The right contended for in the present case is not “of a kind” which was recognised in the Refugee Action case. I reject this argument for the reasons which I have given at paragraph [154] above. The right which was recognised in the Refugee Action case was to “support” under section 95 which met the minimum requirements of the RCD whether that support be in the form of accommodation or other provision for other essential needs, and whether in cash or in kind.

Ms Giovannetti also submitted that the fact that the accommodation is temporary is relevant to the question whether it is adequate in the sense that what may not be adequate on a long-term basis may be adequate on a temporary or short term basis. In this regard she relied on section 97 IAA 1999, R (A) v National Asylum Support Service [2004] 1 WLR 752 CA [54] and [59] and, more generally, Ali & Others v Birmingham City Council [2009] 1 WLR 1506 UKSC. This principle was not disputed by Mr Hickman.

Nor, however, did it appear to be in dispute that accommodation, which was once adequate, may cease to be adequate, whether because of changes in the circumstances of the accommodation or changes in the needs of the occupant.

I accept that the hurdle for the Claimants is a high one. They must show that the accommodation at the Barracks failed to meet the minimum standard required by the RCD i.e. it failed “to ensure a standard of living adequate for the health of [the Claimants] and capable of ensuring their subsistence” and/or that insofar as the accommodation appeared to the Defendant to be adequate for their needs, her view was irrational. On either argument the standard of “adequacy” is a low one.

Having said that, a certain amount is conceded by the Defendant. In particular, she has accepted that the accommodation at the Barracks is not suitable for asylum seekers who fail the tests in her suitability criteria discussed in relation to Ground 2 below, i.e. who have vulnerabilities related to their history and/or their physical or mental health. She has also accepted that, even for those who do not have such vulnerabilities, the Barracks are not suitable for “long term” accommodation although she does not say, specifically, what that means. Moreover, as Mr Hickman has pointed out, none of the Defendant’s witnesses has actually given evidence in their statements that the Defendant or they, or anyone else, consider or considered the accommodation at the Barracks to have been adequate for the needs of any of the Claimants. On the contrary, all six were moved out of the Barracks after legal challenges which were made on the basis that the Barracks were unsuitable for them, albeit an order of the court was required in three of these cases.

It seems to me that an important starting point in assessing the arguments is that the Claimants are not supposed to be detained. What is at issue here is accommodation in which they were supposed to live voluntarily pending a determination of their applications for asylum. When this is considered, a decision that accommodation in a detention-like setting - a site enclosed by a perimeter fence topped with barbed wire, access to which is through padlocked gates guarded by uniformed security personnel - will be adequate for their needs, begins to look questionable.

The concern increases when one adds the living conditions in the Barracks into the picture. The fact that they are basic and run down is less than ideal, but I accept that, because the standard is one of adequacy, this of itself would not be sufficient for the accommodation necessarily to fall below the required standard. The same is true of the complaint that the bathroom facilities were either shared and lacking in privacy or cold in cold weather. It would also be true about the standard of cleanliness given that this was capable of being improved. But it is of particular concern that there were fairly large numbers living in the dormitories. They were overcrowded when the question of risk of Covid-19 infection is taken into account, and the partitioning arrangements meant that they were overcrowded in terms of the levels of noise and the lack of privacy. The descriptions of the dormitories in the evidence, which also refer to the lack of ventilation and centralised strip lighting, show that it is hardly surprising that sleep was disturbed and that the mental health of some of the residents was undermined. This has a direct bearing on the question of the adequacy of the accommodation for the health and the needs of the Claimants given their vulnerabilities.

Subject to the circumstances of the particular individual, and subject to the questions of Covid and fire risk being satisfactorily addressed, these concerns might not be sufficient, in themselves, for an asylum seeker to succeed if their stay was only to be a short one and they were reliably informed that this was the case, so that they had the comfort of knowing that their stay was finite. But, here, Ms Giovannetti accepted that

The Defendant’s case is that, as a matter of fact, the intention was that the residents would be moved to other section 95 accommodation whilst they awaited the outcome of their applications for asylum. But I was not provided with evidence that it was part of the Defendant’s decision in September 2020 that there was any particular limit to how long a resident could be accommodated at the Barracks, nor of any system for moving residents out after they had been there for a particular period of time, nor of any time limit being placed on the stay of any of the Claimants in the light of their particular circumstances. And, of course, although they were told that they would be there for shorter periods, all bar one of the Claimants were accommodated there for at least 4 months. The findings of HMCIP suggest that this was typical, and that the residents which they spoke to had been there for longer. There is also no evidence of any specific decision or intention to transfer the Claimants out until lawyers intervened and argued that the Barracks were unsuitable for them. Realistically, given the “very clear steer” from Ministers not to make use of hotel accommodation, and given the levels of demand for accommodation to which Ms Chittenden refers, once a person was transferred into the Barracks they were likely to be there for a matter of months rather than days or even weeks, all other things being equal.

As to other matters which are relevant considerations in relation to the issue of adequacy, obviously the circumstances of the individual Claimants matter given that the standard is measured against their needs. Here, the likely effect of the arrangements at the Barracks on the mental health of the Claimants was highly material. Given the experiences of many asylum seekers, and particularly those who had travelled here over land and in small boats, as many of the asylum seekers who were transferred to the Barracks had, the likelihood was that they would be more vulnerable in terms of their mental health, and therefore more likely to be undermined by the conditions there. I deal with this topic in greater detail in relation to Ground 2 but, even those who were transferred there after a careful and accurate application of the Defendant’s suitability assessment criteria were potentially at greater risk in this regard. In the case of the Claimants, as I have noted, there is evidence that they had been tortured and/or trafficked, that they had mental health issues and that they were therefore more susceptible to their mental health being undermined by conditions in the Barracks, as indeed happened on the evidence. Whilst no formal concession has been made that the Claimants were moved out of the Barracks because it was accepted that they were unsuitable for them and whilst, of course, they may merely have become unsuitable during their stay there, it is striking that all six were moved out after interventions by lawyers and/or by the court.

In addition to the likely effect of the accommodation at the Barracks on the mental health of the residents, its likely effect on their physical health is relevant. Here, in my view the fact that the decision to make use of the Barracks entailed failing to apply fundamental aspects of the advice of PHE – not to use dormitory style accommodation but, if they did, to keep numbers down to six per dormitory which would then form a bubble – meant that the Defendant failed to ensure “a standard of living adequate for the health of [the Claimants]” whether the point is taken in isolation or cumulatively with the other features of the accommodation at the Barracks which I have summarised above. It was also irrational, in itself, to depart from the advice of the government body charged with providing advice to the public on Covid safety in such a fundamental way without good reason, and to send the Claimants to the Barracks when the measures which the Defendant herself regarded as appropriate – e.g. transferring asylum seekers from quarantine and in bubbles - were not in place. As I have said, the Defendant has not established that a comparable approach was taken for MOD personnel but, if it was, I would also find that unacceptable.

Ms Giovannetti points out that there were no deaths from Covid-19 in the Barracks, and that there is no evidence of hospitalisations, but this is self-evidently an argument based on hindsight. The effect of the Defendant’s decision was that it was virtually inevitable that large numbers of residents would contract Covid-19, a disease which was capable of causing hospitalisation and long-term harm and/or death. There is no evidence of her calculating the degree of risk to residents in relation to this issue and then deciding that it was low enough to be acceptable. Moreover, the issue is not merely one of physical health. As noted above, there is evidence that fear of contracting Covid-19, given the cramped conditions, was causing anxiety amongst residents.

The position is a fortiori when one adds the evidence about the fire risk in relation to the arrangements at the Barracks. Again, this is of central relevance to the question of adequacy for the health of the residents. Again, it does not appear that the question of fire safety was considered in relation to the proposed numbers of residents and the way in which they would be accommodated: e.g., in spaces divided by wooden partitioning. Again, this point in itself seems to me to mean that the accommodation did not comply with the minimum standards required by the RCD and/or that it would be irrational to decide that the accommodation was adequate for the Claimants’ needs.

Whether on the basis of the issues of Covid or fire safety taken in isolation, or looking at the cumulative effect of the decision making about, and the conditions in, the Barracks, I do not accept that the accommodation there ensured a standard of living which was adequate for the health of the Claimants. Insofar as the Defendant considered that the accommodation was adequate for their needs, that view was irrational. The Defendant’s proposition has to be that she met the minimum standards of the RCD and reached a rational view that the Barracks were adequate despite the Claimants’ heightened vulnerability as asylum seekers which subsequently led to them being transferred out, despite the fact that the Barracks were reminiscent of a detention centre, despite the living conditions, which were basic at best, and the number of others who were to be resident there, despite the fact that they were likely to stay there for months, and despite the fact that they would be running risks of Covid-19 infection and death or injury from fire which the PHE and CPFSI respectively regarded as unacceptable. That is not a proposition which I can accept.

I emphasise that my view is based on the conditions whilst the Claimants were resident at the Barracks, albeit I have considered a wider evidential timeframe for the purposes of reaching conclusions about this. Mr Hickman invited me to rule on the then current position at the time of hearing in mid-April and/or to rule that the Barracks could never be used to accommodate asylum seekers. I decline to do so. Even if it were appropriate to adopt a more wide ranging approach, which I do not accept, the circumstances of the particular asylum seeker are relevant, as I have pointed out, and much depends on the conditions at the time when they are or were there, and for how long they were there. I have not been given a sufficiently reliable evidential basis to form firm views about the present position or to address hypothetical cases in which, say, small numbers were accommodated for short periods, having been carefully screened, and in which Covid and other risks were managed to the satisfaction of the relevant bodies.

I also note that my conclusions have been reached without relying on Mr Hickman’s arguments that the arrangements in the Barracks fell below the standards required of Clearsprings by the AASSC. The flaws in his argument that these standards represent the Defendant’s view of what is “adequate”, and that any decision to apply lower standards therefore necessarily rendered any decision that the accommodation was adequate irrational, are, firstly, that there does not appear to have been a decision to apply lower standards at the Barracks: the fact that the contract imposed the relevant requirements on Clearsprings indicates that the decision was that those standards were required to be met. Secondly, the contractual standards do not necessarily represent what the Defendant regards as the minimum required by law to achieve the standard of adequacy. Thirdly, the arguments do not add anything given my conclusions above and in relation to the legitimate expectation argument below.

This argument was added, with the permission of Chamberlain J, by way of an amendment to the Statement of Facts and Grounds. Here Mr Hickman argues that:

The statements relied on by Mr Hickman include, for example:

These were not promises to the Claimants or any other asylum seekers, nor statements as to how the Defendant would act in the future. They were statements of the

Ms Giovannetti and Mr Manknell, at my request, put in helpful additional written submissions on this issue, and particularly the question whether the party which relies on a given promise or statement must have been aware of it. These submissions are dated 19 April 2021 and Mr Hickman has not sought to reply to them. They submit, and I accept, that following the decision of the Supreme Court in Re Finucane [2019] HRLR 7 the law is not settled as to whether, for there to be a substantive legitimate expectation based on a promise or statement, the claimant must have relied on it to their detriment, but that the balance of views is that this is not a necessary element. They submit, and I agree, that I should decide the issue on the basis of the rationale for holding a public body to a legitimate expectation, namely that there would otherwise be unfairness amounting to an abuse of power: e.g. R (Bhatt Murphy, a firm) v Independent Assessor [2008] EWCA Civ 755 [50]. On the facts, they submit, that standard is not met here.

I agree. The points which I have made above, including that there was no promise of future action, that the Claimants were unaware of the statements on which they now rely and that the Defendant does not seek to resile from her statements, all indicate that there is no unfairness or abuse of power in the relevant sense. Whilst the conditions in the Barracks may have been unfair in a broad sense, no additional unfairness to the Claimants was occasioned by the fact that the Defendant had said that they complied with the AASSC and/or were safe, habitable, fit for purpose etc when, on the Claimants’ case, they are not.

In addition to this, I am doubtful about a number of the breaches of the AASSC relied on by Mr Hickman. He complains about the ratio of service users to bathrooms (Annex B 13.1) but my understanding is that it is common ground that the contractual standard was met when the portacabin facilities are taken into account. He submits that the AASSC prohibits the sharing of sleeping quarters in the present circumstances, but in my view it does not. Annex C states in terms that the provider may make such arrangements with the authority or consent of the Defendant. There are other obligations, such as to keep the common parts clean (B12.1.7) and proactively to monitor the needs of service users (Schedule 2 clause 1.2.5.2) which are, in my view, not sufficiently clear or unambiguous and devoid of relevant qualification to found a legitimate expectation: see R v Inland Revenue Commissioners ex parte MFK Underwriting Agents Ltd [1990] 1 WLR 1545. There may well have been a breach of the obligation to comply with fire safety standards (B3.1.7 and B9) but, even if there were a legitimate expectation in this regard, I am not clear how this would add anything given my overall conclusion.

The essential point under this heading is that the Defendant has accepted that the Barracks are not suitable to accommodate asylum seekers who are, in broad terms, vulnerable. For this reason, she has, from the outset, had suitability assessment criteria which are intended to screen out those for whom the Barracks are unsuitable. That being so, the Claimants argue, it was incumbent on her to have an effective system for ensuring that those who were unsuitable were not accommodated there. This entailed identifying such persons, both at the point of allocation and after an asylum seeker has been transferred. The former required a screening process which specifically assesses the candidate’s suitability for the accommodation in the Barracks. The latter entailed having a system in place to spot those who may have been missed at the initial screening stage or who, whilst they may initially have been suitable, had become unsuitable through a deterioration in their physical or mental health, whether or not caused by the conditions at the Barracks. The Claimants say that the system at both stages was inadequate and, as a result, there were many cases which were missed at the point of transfer and whilst at the Barracks.

As noted above, the basis for the Claimants’ alleged duty was chiefly the Tameside principle and the PSED under section 149 Equality Act 2010 with particular reference to the question of disability, although the free-standing claim under this provision was abandoned. Other bases were contended for in the Claimants’ skeleton argument but, in the oral submissions on behalf of the Claimants, Ms Hirst limited the additional considerations to the duty under Article 4 ECHR, the Council of Europe Convention on Action against Trafficking (“ECAT”) and the Anti-Trafficking Directive (2011/36/EU) to ensure early identification of potential victims of people trafficking and to provide appropriate accommodation and support pending determination of their claims. She also emphasised the need for the Defendant to have a system which ensured that the accommodation did not breach Article 3 or 8 ECHR. All of these duties, she said, combined to inform the question whether the system for the application of the suitability assessment criteria was reasonable. Ms Hirst submitted that, whilst there was no complaint about the Defendant’s suitability assessment criteria themselves, the evidence demonstrated that they were not applied effectively, either in deciding who should be transferred to the Barracks or once an asylum seeker was resident there.

For her part, Ms Giovannetti pointed out that, regulation 4(4) of the 2005 Regulations, which is set out at paragraph [143] above, expressly provides that there is no obligation on the Defendant to carry out an assessment of whether a given asylum seeker has special needs. She correctly submitted that, therefore, Regulation 4(4) itself could not provide a basis for the duty contended for by the Claimants as they had argued in their skeleton argument. She did not dispute that the Tameside duty applied but she submitted that the Defendant had complied with this duty. She submitted that the Defendant had had “due regard” to the relevant considerations pursuant to section 149 Equality Act 2010 in that it had carried out an Equality Impact Assessment and had introduced suitability criteria. Similarly, the other legal bases for the duty contended for by the Claimants did not add anything: the measures in the present case were not the full extent of the Defendant’s measures to address the issue of people trafficking and to discharge her duties in this regard. The accommodation at the Barracks did not breach Articles 3 and 8 ECHR but, in any event, adequate steps had been taken to ensure that those for whom the Barracks were unsuitable were not sent there and/or were transferred out in the event that they were unsuitable.

Ms Giovannetti accepted that there may have been mistakes in some cases but submitted that this did not establish breach of the Tameside duty. She relied on R (BF (Eritrea)) v SSHD [2020] 4 WLR 38 [63] where Underhill LJ said that a published policy which said that the Defendant may treat a person claiming to be a child as an adult if immigration officials thought that he or she very strongly looked significantly over 18 would be unlawful if, but only if, the way that it was framed created a real risk of a more than minimal number of children being detained: “the policy should not be held to be unlawful only because there are liable, as in any system which necessarily depends on the exercise of subjective judgment, to be particular “aberrant” decisions— that is, individual mistakes or misjudgements made in the pursuit of a proper policy”.

Ms Giovannetti also pointed out that the Defendant had made improvements to the way in which she applied the suitability assessment criteria since the Barracks first came into use in September 2020.

R (Balajigari) v Secretary of State for the Home Department [2019] 1 WLR 4647 CA [70] contains a useful summary of the Tameside duty drawing on the summary provided by Haddon-Cave J in R (Plantagenet Alliance Ltd) v Secretary of State for Justice [2015] 3 All ER 261, [99] –[100]:

“…. First, the obligation on the decision-maker is only to take such steps to inform himself as are reasonable. Secondly, subject to a Wednesbury challenge (Associated Provincial Picture Houses Ltd v Wednesbury Corpn [1948] 1 KB 223), it is for the public body and not the court to decide upon the manner and intensity of inquiry to be undertaken: see R (Khatun) v Newham London Borough Council [2005] QB 37, para 35 (Laws LJ). Thirdly, the court should not intervene merely because it considers that further inquiries would have been sensible or desirable. It should intervene only if no reasonable authority could have been satisfied on the basis of the inquiries made that it possessed the information necessary for its decision. Fourthly, the court should establish what material was before the authority and should only strike down a decision not to make further inquiries if no reasonable authority possessed of that material could suppose that the inquiries, they had made were sufficient. Fifthly, the principle that the decision-maker must call his own attention to considerations relevant to his decision, a duty which in practice may require him to consult outside bodies with a particular knowledge or involvement in the case, does not spring from a duty of procedural fairness to the applicant but rather from the Secretary of States duty so to inform himself as to arrive at a rational conclusion. Sixthly, the wider the discretion conferred on the Secretary of State, the more important it must be that he has all the relevant material to enable him properly to exercise it.”

It is not necessary for me to set out the other provisions relied on by the Claimants. I accept that the court should have the overall legal context, including section 149 Equality Act 2010 and the particular position of victims of people trafficking, in mind when considering whether the Tameside duty has been complied with. The particular characteristics of the relevant group of people, and the legal duties owed to them, will have a bearing on what is reasonable in terms of steps to ensure that an informed decision is made. But, as I have noted, no free-standing allegation of breach of particular duties within the applicable legal framework was made by the Claimants.

As far as the overall context for this issue is concerned I did not understand it to be in dispute that, as a group, asylum seekers are likely to be more vulnerable as a result of their experiences and their situation, and to have more complex physical and mental health care needs. This was the evidence of Ms Jennifer Blair (Co-Head of Legal Protection at the Helen Bamber foundation) and it was pointed out by various other people with expertise in the field in witness statements and in letters which were written to the Defendant.

It is also obvious that, as Ms Giovannetti accepts, accommodation in a setting which resembles detention will potentially undermine the mental health of asylum seekers. As it was put in a joint letter to the Defendant, dated 26 November 2020, from the Chair of the Medical Ethics Committee of the BMA, the President of the Royal College of Psychiatrists, the President of the Faculty of Public Health and representatives of Doctors of the World UK, Freedom from Torture and the Helen Bamber Foundation:

“From a clinical perspective, this type of accommodation is highly inappropriate for survivors of captivity, human trafficking, or torture, who are very unlikely to regard a military camp as a safe place and for whom this environment is more likely to trigger a trauma response and further deterioration in mental health and welfare”

I also accept Ms Blair’s evidence that other features of the Barracks increased the risk of deterioration in the mental health of asylum seekers who were accommodated there for any significant period of time. These include the shared living spaces with limited privacy which are described above, the substantial numbers of residents, the noise, the disruption of sleep and the (well-founded) perception of a high risk of Covid-19 infection. And in this case the risk was heightened by the way in which the asylum seekers were transferred – at short notice and without being told where they were going – and the uncertainty as to how long they would be there. I also accept that a substantial number of those who were transferred to the Barracks had come to the United Kingdom via Libya, where there is a high incidence of people trafficking.

In relation to allocation decisions, Mr Arnold, Head of Refugee Support at the British Red Cross states in his report of January 2021 – “Reducing vulnerability risks and improving residents’ experiences”, and I did not understand this to be disputed, that:

“The nature of trauma and traumatic experiences is such that these can lay dormant for some considerable time, sometimes articulated through behaviour rather than disclosure at interview. Hence any information within assessments may be scant, incomplete, or misleading for people have not been able to articulate traumatic experiences.

There are also lots of reasons why people seeking asylum may choose not to disclose information, especially to authorities in a timely way early on in the asylum process. This is particularly the case if people are not given effective support to disclose information, are not engaged in specialist health services, and are not aware of the implications around any disclosure. As a result, there are significant challenges with effectively trying to reduce vulnerability risk factors to identify any “suitable” people to live in such accommodation forms.”

All of these matters tend to underscore the importance, not only of having suitability assessment criteria but also of ensuring that they were applied effectively both at the point of the initial decision whether to transfer a given individual to the Barracks, and whilst they were resident there.

The process for making the initial allocation decisions is addressed by Mr Williams in his first witness statement. He says, at [35] that:

“Asylum seekers accommodated at Napier would typically have been screened and accommodated for a period of time before being routed to Napier. There would have been several opportunities to disclose relevant issues and indicators to the Home Office and/or CRH, who also manage other asylum accommodation. The Secretary of State took the view that the consideration of the asylum registration questionnaire, together with the subsequent application for s.95 support, and the information recorded on the Home Office’s Case Information Database (“CID”) and CRH system would, therefore, provide a reasonable mechanism for the identification of any significant health and vulnerability issues.” (emphasis added)

The development of the suitability criteria applied by the Defendant is addressed by Mr Palmer. He states that, in recognition of the fact that the Barracks were not suitable for all individuals, a screening process was established in September 2020. He points to a process map which was developed in conjunction with version 1 of the suitability criteria document entitled “Suitability Assessment for MOD Camp Site

From the suitability assessment criteria document, it is apparent that the candidate had to have undergone a screening interview and to have been in the country for more than 14 days, so as to have completed post-arrival quarantining. Those who satisfied these requirements would then potentially be deemed unsuitable on a number of grounds, including if they were potential victims of trafficking, or had other vulnerabilities or were safeguarding cases or there were any medical concerns “even if it sounds very minor or low level-risk”. There were other circumstances which would render them unsuitable, such as being aged under 18 or over 65. Mr Palmer points out that the categories were quite broad, and he says that caseworkers were advised to take a cautious approach. It is clear from a “Suitability Assessment Desk Guide” at the end of the document that the key documents which the caseworker was required to consult were the ASL 3211, which I deduce is the “Initial Contact and Asylum Registration Questionnaire”, and the ASF 1, which is the application form for section 95 support.

Mr Palmer then points to version 6 of the suitability assessment criteria, which was apparently applicable from 21 December 2020, and is entitled “Suitability Assessment for Contingency Accommodation”. This is a fuller document which states that it is required to be read in conjunction with the Defendant’s Allocation of Accommodation Policy and the Healthcare Needs and Pregnancy Dispersal Policy. Version 6 states that

The Suitability Assessment Desk Guide at the end of the document reflected this guidance in that it made clear that the minimum documentary evidence required to make an assessment was the ASL 3211 and the ASF 1. The criteria for unsuitability were, by now, significantly narrower than the September version, so that more asylum seekers were potential candidates for transfer to the Barracks. The unsuitable cases included unscreened cases, potential victims of trafficking, those falling within the definition of “a vulnerable person” under Regulation 4(3) of the 2005 Regulations (see paragraph [143], above), safeguarding cases, those aged over the age of 65, those with physical disabilities and those with severe or complex health needs including: “ii Active tuberculosis and Infectious / active communicable diseases; iii. Serious mental health issues where there is a high risk of suicide, serious self-harm or risk to others; iv. Chronic disease, e.g. kidney disease – the patient requires regular dialysis, etc; v. HIV.”.

The evidence about precisely which forms are filled in, and at what stage of the process of the reception of an asylum seeker, was vague. However, as far as the screening interviews are concerned, the decision of Fordham J in R (DA & Others) v Secretary of State for the Home Department [2020] EWHC 3080 (Admin) on 13 November 2020 shows that, from 30 March 2020, an abridged screening interview process was introduced, as a result of the pandemic, whereby the Defendant conducted most screening interviews by telephone and they were truncated. The interviews lasted 15 to 18 minutes and they did not include certain standard questions which are relevant to the identification of potential victims of people trafficking. Fordham J made an interim order that the asking of these questions should be resumed.

I was shown the “Initial contact and asylum registration questionnaire” (“the registration questionnaire”) to which Mr Williams refers in the passage from his witness statement which I have quoted at paragraph [192] above and which, I understand to be form ASL 3211 and the basis of the screening interview. This sets out an introductory text which is apparently read to the applicant via an interpreter where appropriate, and

The form then requires the applicant to be told that they may be sent a Preliminary Information Questionnaire (“PIQ”), in which case it will be important for them to complete it so that their claim can be considered. The applicant is told “If appropriate, at a later date you will be sent a letter inviting you to attend an asylum interview which you will be able to give full details of your experiences and fears.”. (emphasis added)

Part 2 of the registration questionnaire contains a series of questions about “Health/special needs” and the interviewer is required to read out the following:

“It is important that you tell us, as early as possible, of any information relating to your health including any possibility of contagious diseases. It will not negatively affect your claim. Any medical information you disclose may help you with accessing health services.”

The applicant is then asked questions including “Is there anything else you would like to tell me about your physical or mental health?” and “Have you ever been exploited or reason to believe you are going to be exploited?”. The form requires the questioner to explain: “By exploitation we mean things like being forced into prostitution or other forms of sexual exploitation, being forced to carry out work, or forced to commit a crime”.

Part 3 of the registration questionnaire is headed “Travel and Third country”. Questions

and 3.3 were omitted in the truncated version of the screening interview and

Part 4 of the registration questionnaire asks the applicant “BRIEFLY explain ALL of the reasons why you cannot return to your home country?”. There is then a series of questions about what the applicant fears. The applicant is also asked whether they have a preference for being interviewed by a man or a woman at their asylum interview. The applicant is not required specifically to be asked about torture, rape or other serious forms of psychological, physical or sexual violence.

All of the Claimants arrived during the period when the truncated version of the screening interview was in operation. In the case of NB, the Defendant’s Part 18 Information states that he did not undergo any screening interview at all.

I was also shown the “Asylum Support Application Form (“ASF 1”)”. Section 14 of this form asks the applicant to “Provide details of your individual circumstances” including by ticking or crossing the following boxes: “Victim of trafficking… Mental health problems…. Physical health problems… Victim of domestic violence… Other”. This section then asks for a “brief description”, for any supporting documents and whether the individual is currently registered with a doctor in the United Kingdom.

Apart from OMA, who filled it in on 1 November 2020, the Claimants filled in the ASF1 August/September 2020 and before the decision to make use of the Barracks had been taken by the Defendant. All of the Claimants were assisted by Migrant Help but, apparently, they dealt with each other over the phone. None of them raised any issue under Sections 14 and 15, save for YZM who said he had a stomach-ache.

Mr Palmer says that in the light of the fact that there had been truncated screening interviews for arriving on small boats, it was recognised that the screening process should be revised in order to elicit information about whether a candidate was a “person who has been subjected to torture, rape or other serious forms of psychological, physical or sexual violence.”. Migrant Help were therefore directed to ask an additional question as part of the process of applying for asylum support namely:

“In making decisions about the allocation of asylum support accommodation, the Home Office has regard to the specific situation of vulnerable persons such as minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minor children and persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence. Do any of these apply to you?” If so, what?”

The Part 18 Information served by the Defendant and dated 12 April 2021 states that this question began to be asked from 9 December 2020 i.e. after the Claimants had been transferred to the Barracks.

Finally, I was also shown the PIQ which, the registration questionnaire indicates, is filled in at a later stage of the application process, although no evidence was given about this. The PIQ asks a number of questions which would potentially elicit information which is relevant to the question of the suitability of the Barracks as accommodation for the asylum seeker. However, it is not referred to by Mr Williams as one of the documents to which the Defendant decided that the caseworkers must have regard in applying the suitability assessment criteria. Nor is it identified in the suitability assessment criteria documents which I have referred to above. As I have noted, the key reference documents for the case workers appear to have been the ASF1 and the ASL 3211. As Fordham J noted in R (DA & Others) v Secretary of State for the Home Department, the PIQ is expressly required to be filled out in English. This was one of the reasons why he rejected a submission that that the PIQ provided a sufficient safeguard against the risk that potential people trafficking cases would not be identified in the course of the truncated screening interview.

It also it appears that only 2 of the 6 of Claimants submitted a PIQ. Their forms were prepared by legal representatives. In the case of NB he appears to have submitted a PIQ on or before 10 September 2020 but it does not appear to have been considered until

For all of these reasons, I do not propose to take the PIQ into account as an integral part of the system for deciding who should, and who should not, be transferred to the Barracks. Indeed, as I understood it, the reason why Ms Hirst showed me the PIQ was to demonstrate that although it was filled out by two of the Claimants, and although they submitted information which strongly indicated that the Barracks were not suitable for them, they were nevertheless transferred and remained there.

Mr Palmer acknowledges that the system “has not always been effective at identifying those who should not be accommodated at Napier” and he gives the example of the claimant OMA which, he says, is a case in which OMA was identified as unsuitable but was then sent to the Barracks as a result of mistaken identity. He could have added NB as an example of a mistaken transfer given that he did not have a screening interview and, therefore, the “Suitability Assessment Desk Guide” provided that he was not suitable for transfer.

I also note that, in the case of OMA, he had provided information which was consistent with trafficking and torture in his screening interview in October 2020 but that this was not reflected in his ASF1. Similarly, the PIQs submitted for NB and M contain evidence which is consistent with torture but this is not reflected in their ASF1s, possibly because this form did not specifically ask about torture but quite possibly because it was not appreciated that the applicant might be provided with the sort of accommodation which was available at the Barracks.

In her second witness statement, Ms Creffield says at [3] that it would be wrong to suggest that the suitability criteria were not generally applied with care. And she says that this is illustrated by the fact that she is told that since the Barracks became operational only 20-35% of all single males over the age of 18 who have been in the United Kingdom for 14 days have been deemed as suitable for accommodation there. The data on which the statistic is based are not identified and the reason for the range is not explained, but it appears that this must be an estimate. She also says that she has been informed by “colleagues” that a review of 416 files in March resulted in 80 cases meeting the suitability criteria. She explains that a process of Clearsprings sending lists to the Home Office has been undertaken and that these have then been checked against the criteria but, again, it is not easy to know what to make of this evidence given, with respect, its vagueness. Ms Giovannetti said that it showed that the criteria were being applied, albeit mistakes were occasionally made.

Mr Bolt’s covering letter of 21 March 2021 states:

“Secondly, from my discussions with medical professionals and those providing health services, as well as with residents and former residents of both camps, it was evident that whatever assessments had been made of the physical and mental health of the men selected as suitable to be moved to Penally and Napier, they were wholly inadequate…... At both camps, a number of men were identified as suffering from serious underlying physical and mental health conditions, including one case of active TB at Napier.” (emphasis added)

As far as the position after the transfer of an asylum seeker to the Barracks is concerned, Mr Palmer acknowledges that there may be circumstances in which it becomes apparent that a resident no longer meets the suitability criteria. He says that “systems are in place to ensure that there is an ongoing assessment of individuals’ suitability”. He says that there are a number of ways in which an individual or third party may raise a concern and, where appropriate, be assessed as a result. He points to the Induction Briefing, which he exhibits, and which explains how to book medical appointments, how to report issues and complaints and how to deal with personal safety issues. There is also information in the Briefing about how to phone Migrant Help and how to seek legal assistance. The Claimants say that they were not provided with this document and I note that Mr Palmer does not say when the Briefing came into existence or give evidence that it was provided to any of the Claimants. However, HMCIP found that:

“Induction took place on arrival, but residents were given no private interview for staff to identify vulnerability. Useful written induction information was given to residents which included NHS information on COVID-19 safety translated into five commonly spoken languages. The advice was useful, but not specific to the Barracks environment. Apart from the occupancy agreement, all other information was also translated into the five most common languages.”

It may therefore be that these materials were not available to those who arrived in September 2020, but I accept that they were provided by the time of the HMCIP inspection. I note that HMCIP also found that residents were not screened on arrival to assess their physical or mental health and nor was there a private interview in which issues of vulnerability might have been raised.

Mr Palmer also refers to onsite staff including: “CRH contracted welfare officers, security personnel, cleaners and other facilities staff, onsite medical professionals and a Community Support Worker employed by Migrant Help offering advice and support services.” He says that the Community Support worker had received safeguarding training from Migrant Help before he started on site in late November 2020, albeit this service was suspended between the Covid-19 outbreak which took place in mid-January and March 2021. He says that these members of staff could be approached by residents at any time.

Mr Palmer says that the asylum seekers are registered at a local GP surgery and points out that there is a nurse on site as well as there being a 24/7 Migrant Help telephone helpline, albeit there is evidence that waiting times for calls to be answered were long. He notes that in September 2020 Kent County Council Adult Social Care had set up a system to deal with referrals from the Barracks, albeit there were no referrals as, he says, asylum seekers were transferred out of the Barracks if their case reached a level of safeguarding concern which warranted local authority intervention. He also refers to the availability of a process of referral to the Home Office Safeguarding Team albeit he acknowledges that staff on site were not aware of this, nor of the suitability assessment criteria, until the week commencing 22 February 2021.

With respect to him, Mr Palmer’s evidence is not particularly clear on these issues. As I have noted, the Barracks have only been within his remit since 30 November 2020. He says that since then he has attended various multi agency forums and that he led the response to the critical incident on 29 January 2021. But it also appears from what he says that he did not actually visit the Barracks until 5 March 2021. His witness statement is dated 18 March 2021 and there are aspects of his account which appear to be reporting the position as at that date. Where his evidence is different to, or in conflict with, other evidence in the case, this may be why. But other evidence in the case tends to paint a picture which is less positive than he portrays.

It is true that there was a nurse on site, but he worked 9am-5pm on weekdays. Although the findings of HMCIP were that he was doing a good job in meeting the general health needs of the residents, the witnesses for the Defendant do not mention that, according to the Human Applications audit of 2 November 2020, the intention had been to appoint a full time GP. Nor do they mention that in the 17 December 2020 “lessons learned” meeting it was said that “Whilst the presence of an onsite nurse has been invaluable, experience has shown that a team rather than a single person is needed”. There is no evidence that any steps were taken to address this point. And there is also evidence that on 11 January 2021 the nurse told the SESPM meeting that he had seen a deterioration in the mental health of the residents in the preceding weeks and that he was struggling to deal with their mental health needs despite doing his best. There was no specialist mental health support on site.

It may well be true that the asylum seekers were registered with a GP, but they all say, and I accept, that they were not aware of this. Access to the GP was via the onsite nurse who triaged cases.

As to safeguarding processes, the Countrywide Safeguarding Adults Service Manager’s report of 12 February 2021 found in relation to residents “displaying signs of mental ill-being” or of being a suicide risk that:

“A positive reflection was that staff and leadership appeared to be responding intuitively to needs reportedly presented by [residents]. However, these safeguards did not appear to be informed or underwritten by any prescribed procedure or framework”.

HMCIP also found that the on-site staff were mostly security guards:

“We observed pleasant, respectful interactions with residents, but staff were illequipped to deal with the complex issues they faced”.

Extraordinarily, there was very little awareness amongst staff of the suitability assessment criteria or of the process for making referrals to the Home Office safeguarding team. The HMCIP report says that:

“Systems intended to safeguard residents did not ensure that vulnerability was always identified and acted on promptly. Safeguarding expertise was provided by the national safeguarding team of Clearsprings Ready Homes, who were based off site. We saw evidence that they engaged actively with residents’ safeguarding needs when identified. However, they relied on information provided by on-site staff, who had little awareness of trafficking and other safeguarding needs…... With the exception of the one Migrant Help worker, none of the staff we spoke to had any knowledge of the eligibility requirements for Napier Barracks and could not reliably identify residents who were not suitable.” (emphasis added)

Ms Creffield says in her first witness statement:

“It was also clear that those I spoke with did not have knowledge of our Suitability Criteria, however they understood safeguarding. On 22nd February I shared the suitability criteria with the onsite nurse and the provider, and requested it be shared with Migrant Help. This was to ensure that staff could identify people who they consider no longer met the criteria and raise such cases with the Home Office.” (emphasis added)

This was after Ms Creffield had recommended in her “Review of Service User Welfare” dated 27 January 2021 that “With immediate effect, the Home Office should share the suitability criteria with providers, so they understand the selection process for MOD sites”, albeit the final report was not agreed until 15 March 2021. Ms Creffield also says that she identified a need to ensure that all staff on site had safeguarding training.

As far as numbers of residents who were living in the Barracks despite this being unsuitable accommodation for them are concerned, Mr Palmer also says that at a “SESPM lessons learned meeting on 17 December 2020 it was said that there were a few cases where individuals with a long term health challenge were accommodated at the site, including those in need of specialist mental health needs (sic) such as PTSD or survivors of torture”. In fact, the minutes of that meeting say:

“There had also been assurance that no one with a long-term health challenge would be brought to the site but there have been a few cases where this has proved not to be the case. In particular, several service users are in need of specialist mental health needs need such as PTSD or survivors of torture.” (emphasis added) 229. HMCIP found that:

“31 residents had been transferred from the Barracks to more suitable accommodation after health and safeguarding concerns were identified. More had been transferred following legal intervention, although managers were unable to tell us how many.”

In her third witness statement, dated 30 March 2021, Ms Willman, a solicitor at

The HMCIP report also makes a number of findings which indicate the inadequacy of the safeguarding arrangements at the Barracks. For example:

“A third of the residents responding to our survey said they had experienced mental health problems. All residents who responded said they had felt depressed during their stay at the Barracks….

….In one case, the Home Office decided that a resident was a potential victim of trafficking, but he remained at the Barracks for a further 10 weeks before being transferred out in February 2021….The Home Office did not inform the resident’s legal representative or Migrant Help of the decision despite their repeated subsequent requests for an NRM referral……

…. Data suggested that seven residents had self-harmed and seven others had threatened suicide since the barracks had opened. Some self-harm incidents had been serious. A third of the residents who responded to our survey said they had felt suicidal at the Barracks….

More vulnerable residents were moved to a single room in the decrepit and wholly unsuitable conditions of the ‘isolation block’…. This included residents who said they were children and one at imminent risk of harm who was subject to constant watch by staff. Residents on the block did not have a radio or television and had little means of distracting themselves. They were watched by security guards with no training in managing safeguarding and self-harm risk. A nail protruding from the door frame afforded an obvious ligature point and staff did not carry antiligature knives.

An actively suicidal resident had remained on the site for more than a month……. He was taken off constant supervision following a conversation between the site manager and a security guard who had been watching him. The following day he was found hanging and required overnight hospital treatment. He was transferred out of the Barracks three weeks later, following a further incident in which staff intervened to prevent him from self-harming. There had been no review in this case to learn lessons….

Two residents had been transferred to the care of social services for an age assessment. In the first of these cases, the resident was accommodated in the Barracks for 17 days before being transferred, following legal intervention.

In the second case, the resident remained at the Barracks for more than two months, before being placed in the care of social services… (I note that the Defendant says this was 5 weeks)

In the absence of any formal care planning managers at the Barracks could supply little documentary evidence of the support provided to these residents…”

As I have noted, the evidence in all six of the Claimant’s cases suggests that they were not suitable to be transferred there under the September 2020 suitability assessment criteria, and ought not to have been living there according to the December 2020 suitability assessment criteria. The findings in the Annex at the end of this judgment also show that the Defendant was slow to move them out when the evidence of their unsuitability was drawn to her attention, albeit the pandemic may have contributed to this.

I accept the Claimants’ contention that the system which the Defendant operated when they were transferred to the Barracks, and whilst they were there, fell below the fairly low standard required by the application of the Tameside principle. As I have pointed out, the particular context was one which the Defendant herself recognised that there was a relatively high risk of physical and mental vulnerability amongst asylum seekers and that the Barracks therefore were not suitable, even, for all adult male asylum seekers.

It was not sufficient simply to put suitability criteria in place; there also had to be a reasonable system for gathering the information to which those criteria would be applied. As I have pointed out, the screening interviews were truncated at the time when the Claimants were transferred to the Barracks and, indeed, until the second part of November 2020. They therefore left out questions which were highly relevant to the assessment of whether the case was potentially one which had involved trafficking. Even if the full interview had been carried out, it was not designed to elicit information for the purposes of decisions about what accommodation might or might not be suitable for the applicant. It did not ask specific questions which were directed at the suitability criteria and the applicant was given the impression that they only needed to give initial information and would be able to provide a more detailed account at a later stage. I also accept that, at this point in the process, there was a real risk that sensitive issues might not be disclosed by the applicant.

The Defendant herself effectively acknowledged that the ASF 1 form was flawed as a basis for gathering information about suitability for accommodation at the Barracks when, as I have noted, a more specific question – directed to aspects of the suitability criteria - was introduced with effect from 9 December 2020. As I have also pointed out, this was after the Claimants had transferred to the Barracks. When the Claimants filled in the ASF 1, there was the additional problem that it could not have been appreciated by them or Migrant Help that the questions in sections 14 and 15 of the form would have a bearing on whether they would or would not be sent to accommodation in the form of military barracks which had the features which I have outlined above, and was therefore more likely to have an adverse impact on their mental health. Had they known of this fact they might have raised issues with any such proposal when the form was filled in.

I accept that the cumulative effect of the registration form and the ASF1 should be taken into account, as well as the possibility that there may have been information available to caseworkers from other sources. But, in my view, even on this approach the initial assessment process was inadequate until, at the earliest, the ASF 1 was supplemented on 9 December 2020. This conclusion tends to be confirmed by the views of HMCIP cited above and by the other evidence, in the HMCIP report and elsewhere, that there were significant numbers of people living at the Barracks for whom such accommodation was unsuitable as defined in the suitability assessment criteria. On the evidence, the levels went beyond a few aberrant cases which resulted from human misjudgement or error, as Ms Giovannetti argued.

I appreciate, of course, that the number of “unsuitable” people who were living in the Barracks is not necessarily an indication that the initial assessment of suitability was wrong. They may have been suitable at the point of transfer into the Barracks, but their mental health may then have deteriorated for one reason or another. But this tends to underline the point that the system for ensuring that only those who were suitable were living in the Barracks had to be considered as a whole. Thus, it might well be that the combination of the approach from 9 December 2020 with well trained and wellinformed Migrant Help or other workers to assist, and effective access to equally well trained and well-informed staff whilst in the Barracks, would be sufficiently effective. But, as I have pointed out, throughout the time that the Claimants were living at the Barracks there appears to have been barely anyone on site, not even the nurse, who was aware of the suitability assessment criteria and the possibility of referrals to the Home Office Safeguarding Team, let alone trained in the application of the criteria or to identify cases where the person was not suitable. In addition to this, as I have pointed out, the evidence indicates that the staff were pleasant, and no doubt doing their best, but untrained and inexperienced where the relevant issues are concerned, and that excessive demands were being placed on the nurse.

These are not the hallmarks of a Tameside compliant, rational, system to ensure that the Defendant was reasonably well informed as to the suitability or otherwise of the Barracks to accommodate a given asylum seeker, whether at the point of allocation or on a continuing basis. Again, my conclusions relate to the period during which the Claimants were at the Barracks and are based on the evidence which was before me. It may be that since the intervention of Ms Creffield, and in the context of greater awareness of the issues in these Claims and reduced numbers of residents, the system for assessment and monitoring has materially improved. I do not know.

It will have been noted that the subject matter of Grounds 1 and 2 is complementary: if the Barracks are to continue to be used there clearly need to be substantial improvements in the conditions there, and lower numbers of asylum seekers living there for significantly shorter periods, with measures to reduce the risk of Covid infection which are consistent with PHE advice. But there also needs to be a better system for identifying those for whom such accommodation is not suitable and for detecting cases where, although suitable when initially transferred, it ceases to be during the course of their stay. The better the system of assessment and monitoring, the more likely it is that improvements in conditions at the Barracks will mean that it will be adequate accommodation in a given case.

I therefore uphold Ground 2.

The Claimants allege breach of Articles 2, 3 and/or 8 of the European Convention on Human Rights (“ECHR”). However, greatest emphasis was placed on Article 3.

Article 2 provides that: “Everyone’s right to life shall be protected by law”. It was common ground that this may place a positive duty on the state to take appropriate steps to prevent a person’s life from being avoidably put at risk: Savage v South Essex Partnership NHS Trust [2009] 1 AC 681 [50] and [65]. In Osman v United Kingdom 29 EHRR 245, 305 the European Court of Human Rights (“the Court”) said:

“116.

In the opinion of the Court where there is an allegation that the authorities have violated their positive obligation to protect the right to life… it must be established to its satisfaction that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals…and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk….”

The threshold of “real and immediate risk to life” is a high one. These words were explained by Weatherup J in Re W’s Application [2004] NIQB 67 as follows: “… a real risk is one that is objectively verified, and an immediate risk is one that is present and continuing”. In Re Officer L [2007] 1 WLR 2135, Lord Carswell said that this is a criterion which will not readily be satisfied and that, for a risk to be “real”, it must be objectively well-founded (at [20]).

As the Court said in Slimani v France (2004) 43 EHRR 1068, however at [24]:

“The obligations on Contracting States take on a particular dimension where detainees are concerned since detainees are entirely under the control of the authorities. In view of their vulnerability, the authorities are under a duty to protect them.”

Breach of Article 2 was not argued in detail or with great conviction by the Claimants. The basis for such an argument is essentially the risk posed by the lack of sufficient safeguards in relation to Covid-19 infection and the risk of fire. I agree that both considerations, at least in principle, gave rise to a risk to life. But I am not persuaded that that risk was sufficiently real and immediate to give rise to a breach of Article 2.

I therefore dismiss this claim.

Article 3 provides that “No one shall be subjected to torture or to inhuman or degrading treatment or punishment”. There was no dispute that Article 3 may give rise to positive obligations on the state. It was also common ground that, as the 1998 Act requires a claimant to be a “victim” of the breach alleged, the success or otherwise of this claim would depend on the experience of each of the Claimants during the time that they were accommodated at the Barracks.

Paragraph 52 of the decision of the Court in Pretty v United Kingdom (2002) 35 EHRR 1 usefully explains the key concepts in Article 3 for present purposes. The overarching principle is that there must be “ill-treatment that attains a minimum level of severity and involves actual bodily injury or intense physical or mental suffering”.

The word “degrading” was explained in Pretty [52] as follows: “Where treatment humiliates or debases an individual showing a lack of respect for, or diminishing, his or her human dignity or arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance, it may be characterised as degrading”. It may be sufficient that the victim is humiliated in his own eyes, even if not in the eyes of others: eg Tyrer v United Kingdom (1979–80) 2 E.H.R.R. 1 at [32]. In considering whether treatment is “degrading” the court should “have regard to whether its object is to humiliate and debase the person concerned and whether, as far as the consequences are concerned, it adversely affected his or her personality in a manner incompatible with Article 3. However, the absence of such a purpose cannot conclusively rule out a finding of a violation of Article 3”: e.g. Elmi and Abubakar v Malta Application Nos 25794 & 28151/13 [99].

Unsurprisingly, the assessment of whether the minimum level of severity has been reached “is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim”: Ireland v United Kingdom (1979–80) 2 E.H.R.R. 25 at [162]. The court also has to look at the cumulative effect of the circumstances.

In MSS the Court acknowledged the difficulties, burden and pressure which the reception of large numbers of asylum seekers may cause to the authorities. However, it emphasised that the absolute nature of Article 3 means that this cannot absolve a state of its obligations under this provision: [223]. On the contrary, the fact that the test is “relative”, rather than the standard being a uniform one, means that the particular vulnerabilities of an asylum seeker may be relevant to the assessment. In MSS and Elmi the Court expressly took into account that “the applicant, being an asylum seeker, was particularly vulnerable because of everything he had been through during his migration and the traumatic experiences he was likely to have endured previously.” Elmi [232].

I was referred to a number of cases about the application of Article 3 to people who are in prison or detention. These are illuminating, in terms of the sorts of considerations which the Court has regarded as relevant or compelling in this context, but the fact that the individuals were on any view detained has to be born in mind in considering attempts to make factual comparisons with the present case. This is because, as the Court has recognised there is an “inevitable element of suffering and humiliation connected with a legitimate deprivation of liberty” (Testa v Croatia (2008) 47 EHRR 29 [44]). That is therefore a key factual feature which is built into these cases. Those who are detained are inevitably more vulnerable in that they have very little agency and are entirely subject to the control of the state and dependent on it for their well-being. There is therefore a duty to protect them: Rooman v Belgium Application 18052/11 [143]. In the present case, for the bulk of their time at the Barracks the Claimants were, at least in principle, free to come and go, at least during the day. They were largely dependent on the state for their well-being, but they had a greater degree of agency than if they were prisoners. On the other hand, the fact that prisoners have committed crimes may mean that a certain degree of ill treatment is justified when it might not otherwise be. As the Court said in Feilazoo v Malta (Application no 6865/19), which concerned conditions in a detention centre: “In that light, the Court found it difficult to consider such conditions as appropriate for persons who have not committed criminal offences but who, often fearing for their lives, have fled from their own country”. [84]

With this caveat, Ananyev v Russia App Nos 42525/07 and 60800/08 contains a useful review of what is and is not relevant in Article 3 cases, albeit in the context of imprisonment. In that case, the Court emphasised that “extreme lack of space in a prison cell weighs heavily as an aspect to be taken into account” in relation to the question whether conditions are “degrading”. Having considered whether there was overcrowding, the Court considered “access to outdoor exercise, natural light or air, availability of ventilation, adequacy of heating arrangements, the possibility of using the toilet in private, and compliance with basic sanitary and hygienic requirements” [149] et seq. I note that in Ananyev the position was that prisoners were spending 23 hours out of 24 in a cramped cell for a period of 3 years. They ate their meals there and they could only go to the toilet in the cell in front of the other prisoners, with whom they shared the cell, and warders. Prisoners were only able to shower once a week, which was considered insufficient, and they had to shower as a group.

As far as health is concerned, the Court in Pretty added:

“The suffering which flows from naturally occurring illness, physical or mental, may be covered by Article 3, where it is, or risks being, exacerbated by treatment, whether flowing from conditions of detention, expulsion or other measures, for which the authorities can be held responsible.” [52]

The decision in Rooman emphasises, albeit in the context of detention, and an applicant with severe mental illness, the particular vulnerabilities of detainees with mental disorders. A court should consider the effect of the manner of the detention, as well as the conditions in which such a person is detained, and should be alive to the possibility of exacerbation of existing conditions and the potential inability of the prisoner to raise issues about their mental health. In this connection, the court is also entitled to take account of the adequacy of the medical assistance and treatment available to the prisoner, which must be comparable to that which the state authorities have committed to provide to the population as a whole, although it need not be of the standard of the best care available to that population: [144]-[148].

In Feilazoo the Court touched on the specific issue of coronavirus at [92], albeit in a very different factual context. It said:

“92.

Furthermore, the Court is concerned about the assertion, not rebutted by the Government, that following this period the applicant was moved to other living quarters where new arrivals (of asylum seekers) were being kept in Covid-19 quarantine. The Court notes that there is no indication that the applicant was in need of such quarantine – particularly after an isolation period – which moreover lasted for nearly seven weeks. Thus, the measure of placing him, for several weeks, with other persons who could have posed a risk to his health in the absence of any relevant consideration to this effect, cannot be considered as a measure complying with basic sanitary requirements.” (emphasis added)

But, in any event, it is clear that exposing a detainee to the risk of illness is a relevant consideration. Thus, in Staykov v Bulgaria App No 49438/99 [80] the Court took into account the fact that tuberculosis was endemic in the Bulgarian prison system, the inadequacy of the prevention efforts of the authorities and the inadequacy of their attendance to the needs of prisoners who contracted the disease.

In Kalashnikov v Russia (2003) 36 EHRR 34, in finding that the applicant’s living conditions amounted to a breach of his Article 3 rights, the Court took into account a number of factors including the fact that his sleep was disrupted by overcrowding, constant light and noise. Albeit in a more extreme factual context, the Court said, at

The Claimants placed particular emphasis on the decision of the Court in Elmi and Abubakar v Malta App Nos 25794 & 28151/13. This was one of a series of cases about conditions in which asylum seekers were being held by the Maltese authorities at Safi Barracks. These conditions had been criticised by a number of international bodies as being inhuman and degrading and/or “appalling”. The applicants in Elmi were being held in a warehouse which was not intended to accommodate people. They were sharing with around 290-320 other people, i.e. around 50% more than the capacity of the warehouse. The Court emphasised, as it had in various cases, that extreme lack of space is a particularly weighty consideration where the issue is whether conditions can be described as “degrading”. The applicants were also there in the heat of the summer months. There was limited light and ventilation and the sanitary facilities were described as being in a “deplorable state”. They said that there was a tense and violent atmosphere, that they had been bullied and victimised by fellow detainees, that they had not been able to access medical care for illnesses which they had suffered and that they were not able to communicate because they only spoke Somali.

Ultimately, I did not find that Elmi gave as much support to the Claimants’ case as was suggested on their behalf. The living conditions appear, in that case, to have been considerably worse than in the present case. It is also clear that the Court based its conclusion that there had been a breach of Article 3 on the fact that the applicants were minors and had been detained for a period of 8 months so that the cumulative effect of these and the other features of the case amounted to a breach: see [111]-[114]. Obviously, the present case concerns adults who were not detained and who were resident in the Barracks for a considerably shorter time than the applicants in Elmi.

Similarly, it is striking that, having considered the conditions at Safi Barracks in general in the Feilazoo case, the Court ultimately decided that there had been a breach of Article

It is superficially attractive to move from my conclusion that during the relevant period the Barracks did not “ensure a standard of living adequate for the health of the applicants”, and/or could not rationally be viewed as adequate for their needs, to the conclusion that therefore accommodating the Claimants at the Barracks amounted to inhuman and degrading treatment of them. But Mr Hickman rightly accepted that the latter does not follow from the former: the threshold which the Claimants have to cross under Article 3 is a higher one.

I accept that, as the Claimants submit, the decision of the Divisional Court in R ((1) Detention Action and (2) Ravin) v Secretary of State for the Home Department [2020] EWHC 732 (Admin) is distinguishable from the present case. There, the Court found that the increased risk of Covid-19 infection in the context of immigration detention did not give rise to seriously arguable claims under Article 2 or 3 ECHR given the steps which the Defendant was taking to ensure that the arrangements in detention centres were safe. The Court considered that these measures were likely to work effectively. By contrast, the present setting is not supposed to be one of detention, the accommodation is in dormitories and the measures which the Defendant took, I have found, were inadequate and ineffective. The residents of the Barracks were therefore at an unnecessarily heightened risk of contracting the disease.

However, I note that in the Detention Action case the court took into account the fact that the risk of serious harm to the detainees in the event of their contracting Covid-19 infections had not been shown to be higher than that of the population in general. In the present case, Professor Coker makes the point that there was evidence that men, and those who are from ethnic minority backgrounds, tend to have worse outcomes from Covid-19 infection than others, but he also points out that there are numerous other variables including age and other comorbidities. “Predicting who, on an individual basis, will develop infection after exposure, who will develop disease after infection, how serious that disease will be…is a challenge”. As I have noted in relation to Article 2, basing himself on a study in June 2020 he says that less than 1% of the under 50s will die from the condition. On the basis of another June 2020 study, he says that around 10% of patients who test positive are ill for more than 3 weeks and a smaller proportion are ill for months. In the present case, the Claimants are young and there is no evidence that they had any relevant medical conditions; four of the six Claimants tested positive and one had symptoms which were consistent with being infected. None was hospitalised.

Looking at matters in the round, whilst I have been critical of the conditions at the Barracks, and of the Defendant’s willingness to put the health and safety of the residents at risk, I do not consider that the treatment of the Claimants was “inhuman” or “degrading”. The conditions at the Barracks were not as poor as in the cases summarised above, as I have noted. And up until 15 January 2021 the Claimants were able, if they wished, to leave the Barracks, at least during the day. Their position therefore was not truly comparable to that of the successful applicants in those cases. I accept that at least four of the Claimants suffered actual bodily injury in the sense that

The high point of the Claimant’s case on Article 3 was in relation to the period after the Covid-19 outbreak, when they were not permitted to leave the Barracks, they were obliged to share dormitories with several infected people and conditions and the atmosphere in the Barracks appear to have deteriorated significantly. Paragraph 92 of Feilazoo, cited above at paragraph [256], therefore requires particular consideration. But in that case the Court rolled the Covid issue into its overall finding rather than holding that moving the applicant into quarantine with others was itself a breach of Article 3. It did say that this “could not be considered a measure complying with basic sanitary requirements”, which was a relevant factor (see Ananyev), but the Court’s jurisprudence emphasises that the relevant considerations should be assessed by reference to their cumulative effect. The Court also emphasised that the step of quarantining the applicant in that case was unnecessary given that he had effectively been in solitary confinement, whereas that is not clear in the present case – some of the Claimants may already have been infected - and it emphasised that the quarantining lasted nearly seven weeks, whereas it lasted for around two weeks in the case of the Claimants, as they were transferred out of the Barracks at the end of January/beginning of February 2021.

Similarly, nor do I accept that there was “treatment which humiliated or debased [the Claimants] showing a lack of respect for, or diminishing, their human dignity or arousing feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance.” I accept that the conditions in the Barracks were highly problematic from their points of view in the ways that I have identified, and that their mental health deteriorated, but in my view accommodating them there did not involve humiliating or debasing them or breaking their moral and physical resistance.

I therefore reject the claim under Article 3.

Article 8 provides:

“Right to respect for private and family life

1.

Everyone has the right to respect for his private and family life, his home and his correspondence.

2.

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The Claimants point out that the concept of “private life” is a broad one and is not susceptible to exhaustive definition. It may, depending on the circumstances, cover the moral and physical integrity of the person, and Article 8 may therefore afford protection in relation to conditions during detention which do not attain the level of severity required for a breach of Article 3: Rannien v Finland (1997) 26 EHRR 563 at [63]. I note, however, that in Rannien the applicant failed under both Articles 3 and 8 in a case where he had been handcuffed in public. At [64] the Court said that:

“it had not been shown that the handcuffing had affected the applicant physically or mentally or had been aimed at humiliating him. In these circumstances, the Court does not consider that there are sufficient elements enabling it to find that the treatment complained of entailed such adverse effects on is physical or moral integrity as to constitute an interference with the applicant's right to respect for private life as guaranteed by Article 8.”

Wainwright v United Kingdom (2007) 44 EHRR 40 was a case in which the Court held that a strip search did not breach Article 3. The treatment undoubtedly caused the applicants distress, but this did not reach the minimum level of severity required. It did, however, breach Article 8. At [43] the Court said:

“Where a measure falls short of Art.3 treatment, it may, however, fall foul of Art.8 of the Convention, which, inter alia, provides protection of physical and moral integrity under the head of respect for private life. There is no doubt that the requirement to submit to a strip-search will generally constitute an interference under the first paragraph of Art.8 and require to be justified in terms of the second paragraph…”.

Since the manner in which the search was carried out was unnecessarily invasive and humiliating it was held not to be “justified”.

Whilst I accept that the degree of distress which may found an Article 8 claim is lower than that which would be required for a breach of Article 3, it seems to me that a claimant has to point to aspects of the treatment which engage Article 8 in particular i.e. those which relate to privacy and interfere with the moral and physical integrity of the person. Wainwright is a classic Article 8 case in that, on any view, the privacy of the applicants was interfered with. In the course of her oral submissions, I asked Ms Luh which aspects of the conditions in the Barracks gave rise to issues under Article 8 in particular, anticipating that she might point to the showering and toilet facilities or, perhaps, the lack of privacy in the blocks. She said, however, that she relied on all of the conditions in the Barracks.

I note that in R (Soltany and others) v Secretary of State for the Home Department (referred to at paragraph [36] above) there was a complaint related to in-room toilets which had no door. Although there was no breach of Article 8 on the facts, Cavanagh J accepted, at [301] that “ECtHR case law…clearly establishes that a failure to provide bodily privacy can result in a violation of Article 3 and Article 8”. Whilst Cavanagh J found that the toilet arrangements were “sub-optimal”, the fact that “the configuration of the room was such that detainees did not need to be visible whilst they were on the

In my view the evidence does not establish breaches of the Claimants’ rights under Article 8, essentially for the reasons which I have given.

In relation to toilets and showers, all of the Claimants were able to go to the toilet in private in the relevant sense. In relation to showering, XD perfectly understandably raised concerns about the lack of privacy. Those concerns were based on his Muslim faith and the fact that he has scarring as a result of torture. As I have said, however, it was possible for him to shower in private, either by timing any shower which he took in the facilities in the block, or by using a towel or by using the facilities in the portacabin. I appreciate that this was less than ideal, but it meant that this aspect of life in the Barracks did not inevitably infringe his Article 8 rights.

XD also raised concerns about changing in his space in the dormitory given that there was no door, and the Claimants raised concerns about the lack of privacy in relation to conversations being overheard and noise more generally. Again, without being unsympathetic, it was open to the Claimants to take steps (e.g. putting up a notice about not entering their space without warning or going outside to hold a sensitive conversation) which meant that their privacy was sufficiently respected.

Beyond these particular points, I did not immediately see where it was that the Claimants could potentially fail under Article 3 and yet succeed under Article 8.

The Claimants’ arguments in relation to Ground 4 were also presented by Ms Luh. She helpfully made clear that the allegation of false imprisonment at common law and/or breach of Article 5 ECHR is based on two periods of time:

In the case of OMA there is also an allegation that he was detained in the recreation room between on or around 18 and 25 January 2021 when he tested positive for Covid19.

The Claimants’ skeleton argument refers, at paragraph 156, to three further incidents of detention about which XD and YZM, although not the other Claimants, give evidence.

However, the Claimants’ skeleton argument goes on to acknowledge that these instances are “perhaps relatively minor in the context of this claim as whole” and to suggest that “they are at least indicative of the reality” that the Claimants were under the effective authority and control of the guards “rather than being free”. These instances are disputed on the facts by Mr Palmer. They were not specifically pleaded in the Statements of Facts and Grounds of any of the Claimants, still less pleaded as specific instances of false imprisonment or deprivation of liberty, although there are broad allegations that the guards locked the gates “on several occasions” pleaded by XD and YZM. In the light of these considerations, and the way that the case was argued on both sides at the hearing, I therefore propose to treat these allegations as contextual evidence as opposed to free standing claims. In any event, had I treated these incidents as claims, I would have preferred the evidence of Mr Palmer, applying McVey principles, there being no clear reason to reject it.

There was no dispute between the parties as to the law. The issues were essentially ones of fact. On the two main points, Ms Giovannetti submitted that:

In relation to the specific instance of alleged detention in the case of OMA, Ms Giovannetti invited me to accept the Defendant’s evidence and, accordingly, to find that these events did not involve imprisonment or deprivation of liberty.

Ms Giovannetti made clear that if I held that the Defendant did imprison the Claimants or any of them or deprive them of their liberty for the purposes of Article 5, the Defendant was not advancing any argument that this was lawful or justified.

Although it appeared from Ms Giovannetti’s skeleton argument that there may be an issue as to whether the Defendant was vicariously liable for the actions of others, including the contractors and the police insofar as they amounted to detention, ultimately she did not dispute that the Defendant would be liable for the actions of Clearsprings. To my mind, this was consistent with her Detailed Grounds of Defence which did not appear to take issue in relation to this point and, indeed, specifically pleaded that, in writing the 15 January 2021 letter, Clearsprings were acting with the authority of the Defendant: see paragraph 128.

The relevant legal principles for present purposes are helpfully set out in two key decisions. As far as false imprisonment at common law is concerned, the Claimants rely on R (Jalloh) v Secretary of State for the Home Department [2020] 2 WLR 413 UKSC. In Jalloh the Secretary of State served the claimant with a notice of restriction under which a curfew was imposed on him pending his deportation. The notice, which contained an express warning of criminal liability in the event of breach, provided that the claimant was required to be present at a particular address between the hours of 11.00 pm and 7.00 am every day and was to be monitored by electronic tagging. The Supreme Court held that this amounted to imprisonment. Since there was no power to impose the curfew, the imprisonment was unlawful.

At [24] Baroness Hale, with whom Lords Kerr, Carnwath, Briggs and Sales JJSC agreed said this:

“24 As it is put in Street on Torts, 15th ed (2018), by Christian Witting, p 259, “False imprisonment involves an act of the defendant which directly and intentionally (or possibly negligently) causes the confinement of the claimant within an area delimited by the defendant.” The essence of imprisonment is being made to stay in a particular place by another person. The methods which might be used to keep a person there are many and various. They could be physical barriers, such as locks and bars. They could be physical people, such as guards who would physically prevent the person leaving if he tried to do so. They could also be threats, whether of force or of legal process.” (emphasis added)

She went on to say, at [25], that on the facts there was no doubt that between 11pm and 7am the claimant was imprisoned.

“There was no suggestion that he could go somewhere else during those hours without the defendant’s permission”.

At [26]-[27] she said:

“26 The fact that the claimant did from time to time ignore his curfew for reasons that seemed good to him makes no difference to his situation while he was obeying it. Like the prisoner who goes absent from his open prison, or the tunneller who gets out of the prison camp, he is not imprisoned while he is away. But he is imprisoned while he is where the defendant wants him to be.

27 There is, of course, a crucial difference between voluntary compliance with an instruction and enforced compliance with that instruction. The Court of Appeal held that this was a case of enforced not voluntary compliance and I agree. It is not to be compared with those cases in which the claimant went voluntarily with the sheriff’s officer. There can be no doubt that the claimant’s compliance was enforced. He was wearing an electronic tag which meant that leaving his address would be detected. The monitoring company would then telephone him to find out where he was. He was warned in the clearest possible terms that breaking the curfew could lead to a £5,000 fine or imprisonment for up to six months or both. He was well aware that it could also lead to his being detained again under the 1971 Act. All of this was backed up by the full authority of the state, which was claiming to have the power to do this. The idea that the claimant was a free agent, able to come and go as he pleased, is completely unreal.”

The Supreme Court also rejected an argument that the concept of imprisonment at common law should be aligned with the concept of deprivation of liberty under Article 5 ECHR. At [29] Baroness Hale noted the following definition of this concept in Guzzardi v Italy (1980) 3 EHRR 333, [92]:

“In order to determine whether someone has been deprived of his liberty within the meaning of article 5, the starting point must be his concrete situation and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question.” 292. She went on to say:

“The ECHR distinguishes between the deprivation and restriction of liberty and the court emphasised that this was a matter of degree rather than nature or substance (para 93). This multi-factorial approach is very different from the approach of the common law to imprisonment.”

In relation to Article 5, the Claimants also rely on AP v Secretary of State for the Home Department [2011] 2 AC 1 which considered whether subjection to a control order pursuant to section 2, Prevention of Terrorism Act 2005, amounted to deprivation of liberty and held that it did. The order subjected the controlee to a 16-hour curfew and electronic tagging, together with a number of other restrictions on association and communication. He was required to move to an address in a Midlands town some 150 miles away in order to make it more difficult for him to see his extremist associates. However, his mother was not able to visit him at all, and his brother only visited twice after he moved to the Midlands, owing to their personal circumstances. The judge held that the overall effect of the 16-hour curfew and the controlee’s social isolation, particularly through being separated from his family, constituted a deprivation of liberty in breach of Article 5. He therefore quashed the obligation to live in the Midlands.

The Supreme Court agreed. At [1] Lord Brown noted that in Secretary of State for the Home Department v JJ [2008] AC 385, by a majority of three to two, the House of Lords had held that:

“deprivation of liberty might take a variety of forms other than classic detention in prison or strict arrest . . . the court’s task was to consider the concrete situation of the particular individual and, taking account of a whole range of criteria including the type, duration, effects and manner of implementation of the measures in question, to assess their impact on him in the context of the life he might otherwise have been living . . .”

At [2] Lord Brown noted that in the context of control orders:

“the judge has to decide as a matter of judgment, whether the restrictions overall deprive the controlee of, rather than merely restrict, his liberty.” (emphasis added)

At [3] he said that the duration of a curfew was not the sole criterion of loss of liberty and at [4] he added:

“I nevertheless remain of the view that for a control order with a 16-hour curfew (a fortiori one with a 14-hour curfew) to be struck down as involving a deprivation of liberty, the other conditions imposed would have to be unusually destructive of the life the controlee might otherwise have been living.” Findings on Ground 4 The overall context.

Ms Giovannetti agreed that I should take into account the overall context when interpreting the evidence as to what was said to the Claimants, what happened and what impact it had. The context, in my view, includes the conditions in the Barracks as well as the fact that their being surrounded by a fence with barbed wire “does create a perception of an austere environment (detained)”, as the Defendant acknowledged when considering their proposed use. It is also relevant that the residents were asylum seekers and therefore in an inherently insecure position and less likely to be willing to challenge what they saw as the authorities. The fact that there were gates which were padlocked and that entry to, and exit from, the Barracks required the residents to ask a uniformed security guard to unlock, and to sign in and out using a log book, is bound to have added to the feeling that they were subject to control of their movements in and out of the Barracks.

I agree with Mr Hickman that it is also relevant that there were restrictions on visitors to the Barracks. Ms Sally Hough of Care4Calais Folkestone gives evidence that, from 9 November 2020, charities and other visitors were required to seek permission in advance. Mr Palmer accepts that there were times when access to the Barracks was, as he puts it, “blocked” albeit he says that this was a response to protest activity outside the gates. In a particularly striking piece of evidence, Ms Hough says that Clearsprings also attempted to introduce a requirement to sign a “Confidentiality Agreement for External Parties”. This deemed charity and NGO workers to be representatives of Clearsprings and bound them to secrecy in relation to any information provided directly or indirectly to them by Clearsprings which concerned, amongst other things, conditions in the Barracks and any resident. The person signing was required to acknowledge and accept that the “Official Secrets Acts 1911-1989” applied to these matters. The workers/volunteers refused to sign, and the requirement was withdrawn,

It is not necessary for me to explore the question whether Clearsprings had any lawful authority for these aspects of its approach. I make these points simply to highlight that the context for considering the particular allegations of false imprisonment/deprivation of liberty in this case is one in which the Barracks already felt to the residents “like a detention centre or prison camp”. Others have made a comparison to an open prison. On the evidence, it is understandable that they should do so even if the formal position was that they were free to come and go. HMCIP also found that:

“A number of residents described feeling trapped in poor conditions and feared that if they moved out they would jeopardise their only source of support, and potentially their asylum cases. Some told us they had been shouted at and intimidated by members of the public who did not want them there and that this made them reluctant to leave the camp before the COVID-19 outbreak.”

The Claimants’ case is that the residents were told that they had to be in the Barracks between 10pm and 6am on pain of being locked out and treated as an absconder. The claim that there was a curfew is also supported by some of the Defendant’s documents. In particular:

He accepts that “communication has not always been clear and consistent” and he refers to Alex Kane’s email of 1 October 2020 and the Napier Inspection Report dated 13 November 2020, apparently as examples of this. However, he acknowledges that he had not spoken to Alex Kane about his email although he had apparently spoken to the manager of the team which carried out the inspection who confirmed to Mr Palmer that ““curfew” is used as a loose term that refers to a general expectation that individuals would return to the site by a given time and akin to a “coming home time” rather than a requirement”.

Mr Palmer does not directly comment on the passage from the Induction Briefing referred to above, although this document is exhibited later in his statement for the purposes of supporting the Defendant’s case that arrivals at the Barracks are provided with information about services related to their health and well-being. However, it may be that the Induction Briefing is what Mr Palmer had in mind when he asserted, at paragraph 10 that “Some of the documentation provided to individuals is unclear on this matter and incorrectly states that being absent overnight may result in the individual being classed as an absconder, in practice those processes do not commence if an individual is away for a single night.”

With respect to Mr Palmer, his evidence is to some extent at odds with the documentary evidence referred to at paragraph [300] above. The furthest he goes in addressing that evidence is to offer a potential explanation of the use of the word “curfew” in Alex Kane’s email of 1 October 2020. This does not address the statement in that email that “They can otherwise come and go as they please” but, more importantly, it does not begin to address the statement in the 13 November 2020 Inspection Report, nor the passage in the Induction Briefing, neither of which uses the word “curfew” but both of which purport to state the factual position in terms of what is required of the residents, and the consequences if they do not comply.

However, HMCIP found:

“Residents had previously been allowed to leave the site unaccompanied and could stay away for 24 hours, though they were required to sign in and out. If they remained out after 10pm, site staff contacted them to check on their welfare. Staff and residents told us that there was a degree of flexibility in the agreed return time as long as they had contacted the site. Many residents told us they did not go out. Logs were not always legible, but some showed that residents regularly left the site.” (emphasis added)

The evidence of the Claimants themselves is also thin on this issue, although other witnesses report that they were told that there was a curfew or had the impression that there was one. Three of the Claimants make no reference at all to a requirement to be in the Barracks overnight. M mentions in passing that “we were allowed outside until 10pm” but says no more on the subject. XD and YZM do say there was a curfew between 10pm and 6am and that they were told that they would not be allowed back in if they returned after 10pm. YZM says that this actually happened to a friend but neither XD nor YZM appear to have put this to the test themselves. The effect of their evidence is that they had to be back by 10pm if they wanted to sleep at the Barracks, but that is not the same as a requirement to be at the Barracks overnight. Mr Hickman also made clear that the Claimants did not place reliance on the Induction Briefing because they were unaware of it.

On balance, I therefore prefer the Defendant’s case on this issue. There clearly was an expectation that those who wished to sleep overnight at the Barracks would be back by 10pm and, perhaps, that they would be there overnight in any event. But the actual Claimants’ evidence is not to the effect that they were told that they would automatically be treated as having absconded if they did not return, nor suffer any sanction other than being locked out for the night. The Defendant’s documentary evidence is not entirely consistent as to the position but, aside from the Induction Briefing, the furthest it goes is that they would be treated as absconders from the next morning if they did not answer the phone call from the Barracks. The HMCIP’s finding, set out above, is broadly consistent with this position and I note that it is based on conversations with residents. Overall, then, I do not consider that the curfew was a rule which was enforced by the sanction of being treated as an absconder; on the evidence, it was an expectation which might lead to sanctions if there was reason to believe that the resident had absconded.

I therefore reject this claim at common law and under Article 5.

Mr Palmer’s witness statement explains that the context for the 15 January 2021 letter was that there were very real concerns about the Covid-19 outbreak in the Barracks. These concerns included that residents would leave the site when they ought to be selfisolating and/or would spread infection in the local community and that this, in turn, would increase existing tensions in the local community. The advice from health agencies was that the whole site should be asked to self-isolate and all residents should be treated as having tested positive, or as having been in close contact with someone who had tested positive. The police also asked that the gates remain padlocked and that they be notified of anyone leaving site whilst they were in the process of establishing a presence outside the gates to the Barracks.

It appears that before the letter of 15 January 2021, groups of 20 and then 16 residents left the site that day, although they were told not to. The police were about to ring their patrols about this. Tensions were running high. However, the plan was “to lockdown the site and now communicate the message about this and compliance.” 312. The letter of 15 January 2021 stated, so far as material:

“Dear Service Users,

We have been advised that someone you live with may have symptoms that could be linked to COVID-19 therefore we have had no choice but to put the camp into isolation.

Before and after this outbreak we have reiterated the importance of complying with the Public Health Guidance. It is a legal requirement that everybody follow the law.

There are now restrictions in place at the site. You are not to leave the site under any circumstance. The Police are aware of the situation and if you have been found to disregard this advice, the Police may issue you with a Fixed Penalty Notice or you may be arrested.

It is therefore essential that for your own safety and to prevent further transmission of the virus, you comply with the law by not leaving the site.

Please help us to help you.

To help you keep safe we intend to begin mass testing on site imminently and we will keep you fully informed of this. …..

The following links will also assist you.

…. [links to Doctors of the World and to government guidance on the stay at home policy, on social distancing and for vulnerable people and on the national lockdown were then provided] …

If you require further advice please contact NHS Direct on 111, and if you need any assistance with this please ring Migrant Help and ask for your Housing Officer to call / visit you - 0808 8010 503 …”

On 18 January 2021, a local vicar wrote to Mr Millard of SESPM to say that he had heard that there had been an outbreak at the Barracks and that no attempts were being made to segregate the residents. Mr Millard assured him that steps were being taken to address the situation and that “The site is now required to isolate and residents are therefore required to stay on site……Asylum seekers have been advised of the legal obligation not to leave the site – this is set out in writing (to be translated) and explained through interpreters” (emphasis added). Mr Millard repeated this message in an email to all relevant NGOs on the same day.

Mr Palmer exhibits the logbook for 16 January 2021 which appears to show a small number of residents leaving site that day. Ms Giovannetti also relied on the notes of the SESPM meeting on 18 January 2021 which record that a Jess Harman, of the FHDC Community Safety Unit, had been to the site and had been told that 45 residents had been off site (although it is not clear whether this was on one day or since the outbreak) and that 15 were still absent when she was there. The notes of 19 January 2021 record that someone had said that residents were continuing to leave site to go to shops for minor items and that this was not a sufficient reason to do so. A negative test did not mean that they could leave site, but 19 residents had done so. The police had been called

A further letter to residents dated 28 January 2021 stated, so far as material:

“If you are asked to move, please cooperate, and follow the instructions of the site managers. –

Because there are still some people with Covid-19 infections on the site and in line with government COVID regulations it is extremely important that you continue to self-isolate and do not leave the site….

Once the moves have taken place you will be in a new 'bubble' with those that you are living with, in a block. It is important that you do not mix with people outside of that 'bubble'. …. If there are no new cases within your 'bubble' we will be able to end the period of self-isolation after 10 days. If there are further cases, you will be kept informed of any change to the date that self-isolation ends….

…We will notify you when your period of self-isolation has ended. When you receive this notification from us, you will be allowed to leave the site for a limited number of reasons in line with national law that applies to everyone…. (underlining added)

It appears to be this letter which led to the disturbances on 29 January 2021.

HMCIP found that:

“…Residents at both sites were usually able to come and go. The exception was during the major COVID-19 outbreak at Napier, when over a hundred people were confined to their billets for approximately four weeks and unable to go outside except to use the mobile toilets or showers. They were warned that they might be arrested if they left the camp. In at least one case, a resident was forcibly returned to the camp by the police.”

On 26 February 2021 Ms Creffield visited the Barracks, as noted above. She instructed that the padlocks be removed from the gates. Pursuant to an undertaking which Chamberlain J had required to be given to the court at the permission hearing, as a condition for delaying the full hearing to the Easter Term, on 28 February 2021 a letter was sent to residents which made clear that they were not detained, and were free to come and go, but asked them to sign in and sign out for their own safety. The letter also explained to them the true position in terms of the then Covid regulations i.e. that it was permissible to leave home for certain reasons which were set out in the letter. Ms Creffield also sent an email to Clearsprings which emphasised that the residents were not detained and were not subject to a curfew. Ms Creffield also raised concerns about what was said in the induction materials about there being a curfew and put in train a process which she intended to result in the offending passages being amended.

Mr Hickman developed arguments that the Defendant was not entitled to require the residents to self-isolate because the letter of 15 January 2021 did not constitute valid notification of the duty to self-isolate under penalty of law for the purposes of Regulation 2(1), Health Protection (Coronavirus, Restrictions) (Self Isolation) (England) Regulations 2020/1045. He said that this was because it did not notify them that they or a particular person of whom they were a close contact had tested positive, and because it was not a notification by the Secretary of State for Health and Social Care as, he argued, was required. Ms Giovannetti disputed these arguments but she also pointed out that the key issue was whether the 15 January 2021 letter had the effect of imprisoning the Claimants or depriving them of their liberty given that, if it did, she was not seeking to argue that this was lawful.

Assuming for the sake of argument that the letter of 15 January 2021 did constitute a valid notification under Regulation 2(1), the duty to self-isolate permitted a person to leave the place where they would otherwise be required to remain, where necessary, for various purposes which are potentially relevant in this case. These included to seek medical assistance including dental services and services relating to mental health, to avoid a risk of harm, to obtain basic necessities for a member of their household and to access critical public services: see Regulation 2(3)(b). However, the letter did not point any of this out. Rather, it clearly instructed the residents not to leave the Barracks under any circumstances. This was said to be the residents’ legal obligation when in fact it was not. They were also threatened with arrest or a fixed penalty notice if they disobeyed. The impression which this gave was reinforced by a police presence outside the gate, and by residents seeing people arrested as they tried to leave. The Claimants also report seeing residents being prevented by security guards from leaving and YZM says that he himself was prevented from doing so. The instruction of 15 January 2021 and the impression which it gave were further reinforced by the letter of 28 January 2021.

The terms and the effect of the 15 January 2021 letter therefore went beyond merely advising the residents of their legal duty to self-isolate as Ms Giovannetti argues. The letter instructed the residents to remain in a particular place, stated that the instruction was underpinned by law and threatened that the instruction would be enforced by legal process. And it did so in a context in which the overwhelming likelihood was that the contents of the letter would be taken at face value and that the majority of residents would not be willing to challenge what was said.

It seems to me to be no answer for the Defendant to say, particularly in the context which I have outlined above, that if the residents had researched the matter by clicking on the links which the 15 January 2021 letter provided, they might have discovered that the terms of the letter were inaccurate and unlawful and then chosen to ignore or challenge it. The instruction in the letter was clear, as was the threat of enforcement by legal process, and residents were aware from what they saw that this was not an idle threat.

Nor, in my view, is it an answer to say that there were examples of residents choosing to leave the Barracks. In the case of the particular Claimants in these proceedings it appears that, although they may not all have read the 15 January letter itself, their understanding was consistent with its contents. Other than in the case of YZM, there is no evidence of them doing anything other than taking the position at face value and remaining in the Barracks as instructed. No evidence has been presented, for example,

The reality, it seems to me, is that the residents understood that they were being held in the Barracks and they were right. That is one of the key reasons why there were the disturbances in late January 2021. Some residents may have chosen to defy the order, but that does not affect the position of those who obeyed it. I therefore uphold this claim in the case of each of the Claimants at common law and under Article 5.

As to Ms Giovannetti’s submission that I should rule that the Claimants are entitled to nominal damages only on the basis that they had no lawful cause to leave the Barracks in any event, I see the force of the point but prefer to leave this issue open at this stage. The question of quantum in the event that the Claimants succeeded on any of their claims was not an issue to be determined at this stage and I am unwilling to shut the Claimants out on this issue without them being given the opportunity to present evidence. Certainly, in the case of NB he was prevented by the Defendant from leaving the Barracks, ostensibly on the grounds of the lockdown, and his release therefore had to be ordered by Mr Clive Sheldon QC (see, further, the Annex below). His, then, would not seem to be a case for nominal damages only.

I note that this allegation relates to the specific treatment of OMA during the post 15 January period. In his first witness statement, dated 28 January 2021, OMA recounted how he developed Covid-19 symptoms and then tested positive on 11 January 2021. He said that, on 18 January 2021, he was told to move to the games room which now had no furniture, other than some cupboards, and eight mattresses on the floor. The doors were locked, there were security guards on the door and no residents were allowed to go in or out. “For the first few days there wasn’t even access to a toilet and it never had a shower. I don’t remember when exactly but after some time they brought toilets that we could use but no showers”. (emphasis added)

Mr Palmer consulted the site manager, who disputed this account. Mr Palmer set out the manager’s version of events at paragraph 16 of his witness statement which, in summary, agreed that the recreation room was reconfigured to serve as a place for residents who had tested positive to self-isolate but said that there were 21 sets of beds and lockers. The recreation building has six toilet cubicles, four urinals and three sinks. There were also shower pods allocated to the building which gave access to four showers outside the door of the building. There were two security guards – OMA agrees on a rota basis - but the doors were not locked, and people were allowed to leave; indeed, they were encouraged to use the space in the front of the block for exercise.

OMA then served a statement in response, dated 30 March 2021, which stated that the passage in his first witness statement which said “I don’t remember when exactly but after some time they brought toilets that we could use but no showers” is in fact a translation error. They did bring showers. He did not suggest that the statement that “For the first few days there wasn’t even access to a toilet..” was a translation error but he accepted, without acknowledging the change in his evidence, that there were toilets and sinks albeit he remembered fewer than Mr Palmer said there were. He also confirmed Mr Palmer’s evidence that shower pods were brought to the building and located outside the door, albeit with some quibbles as to timing, number and precise location. He went on to say that the showers were guarded by a fence which prevented the residents from escaping from the recreation room and that he was only permitted to leave the room to use the toilet facilities. He also alleged that there were 7 or 8 beds, rather than 21 as Mr Palmer said.

Ms Creffield responded to this evidence in her second witness statement dated 13 April 2021, the position having been checked again with NACCS and Clearsprings. She confirms the essentials of the account given to Mr Palmer. NACCS have confirmed that when the recreation room was reconfigured, two sets of 11 beds were put in on 14 January 2021 (so 22, not 21). The room was not locked. Two of the doors had “push bars” and could therefore readily be opened. The role of the guard was to ensure that no unauthorised person entered, and to be available if needed by the residents of the block. There was fencing placed around the showers (which I gather was about 4 feet high) but this was to prevent them from being used by others. The fencing was later removed.

In my view the evidence relied on by the Defendant is to be preferred on this issue. There was no application to cross examine Mr Palmer or Ms Creffield and I see no reason to conclude that their evidence is unreliable on this point. Indeed, their account is consistent, and it is unlikely that anyone would be lying, for example, about the number of beds or toilets. On this footing, aspects of OMA’s account are materially inaccurate. Moreover, OMA’s initial account of not having access to a toilet “for the first few days” was inaccurate by his own admission and rendered at least his initial account highly implausible. I also note that he states that he was “very ill” with Covid19 at the material time, which may account for the inaccuracies in his evidence.

I therefore dismiss this claim at common law and under Article 5.

I therefore allow the Claims on Grounds 1 and 2 and I allow them in part on Ground 4. The other Grounds and claims are dismissed.

The parties should seek to agree appropriate declarations and directions for the quantification of damages.

NB is an Eritrean national aged 24. There is evidence in his case of a history of torture and trafficking/forced labour in Libya en route to the United Kingdom.

NB entered the United Kingdom in August 2020 on a lorry and claimed asylum. He was initially accommodated in a hotel in London for around six weeks before being transferred to the Barracks in September 2020.

NB was referred to his solicitors, DPG, on 7 January 2021, by Care4Calais. DPG sent a pre-action letter to the Defendant on 11 January 2021.

Shortly after this, NB developed symptoms of Covid-19.

On 17 January 2021, Dr Galappathie provided a psychiatric report which diagnosed NB as suffering from depression, generalised anxiety disorder and PTSD with severe symptoms. Dr Galappathie’s opinion was that NB’s mental health had deteriorated whilst living at the Barracks and he recommended that NB be transferred to alternative accommodation as a matter of urgency. His report was sent to the Defendant on 18 January 2021.

On 19 January 2021, the Defendant accepted that “there are indicators that suggest

On 27 January 2021, proceedings were issued.

On 28 January 2021, there was a positive ‘reasonable grounds’ trafficking decision in NB’s case. However, on 29 January 2021, the Defendant declined to move him out of the Barracks because “Napier is currently under a lockdown following an outbreak of Covid-19. Accordingly, moving your client during this time is not possible.”.

NB’s transfer out of the Barracks was therefore ordered by Mr Clive Sheldon QC, sitting as a Deputy, following an oral hearing on 2 February 2021. Mr Sheldon said:

“I am told that the Secretary of State’s policy is not to accommodate at Napier persons who are vulnerable, including those with serious mental health issues. The evidence that I have seen strongly suggests that NB falls into that category. He has been diagnosed as having severe mental health problems which, in the opinion of a consultant psychiatrist, are being exacerbated by the conditions of his accommodation at Napier.” 343. He went on to find that:

“On the available evidence, and in particular that from Dr Galappathie, NB will be at risk of harm if he continues to stay at Napier. In my judgment, the evidence clearly satisfies one of the exceptions set out in the Self-Isolation Regulations and so, in my view, there is no legal impediment to NB’s removal”.

NB was transferred to alternative accommodation on 3 February 2021.

M is a Sudanese national aged 21. His case history includes evidence of oppression by Sudanese government militia, as well as torture and forced labour in Libya on his journey to the United Kingdom.

M arrived in the United Kingdom by boat on 1 September 2020 and claimed asylum shortly thereafter. He was initially accommodated in a hotel in London for around four weeks before being transferred to the Barracks in September 2020.

M was one of a number of residents who began sleeping outside in early January in protest at the conditions including the lack of Covid-19 precautions in the Barracks. M also began a hunger strike.

On 5 January 2021 M’s solicitor requested that he be referred to the NRM as a potential victim of modern slavery.

On 10 January 2021 Migrant Help referred M to the Home Office Safeguarding Team on the basis of his hunger strike and because he was expressing suicidal ideation.

On 18 January 2021, Care4Calais referred M to the NHS safeguarding team in the light of concerns that he posed a high risk of suicide. The referral was declined by the NHS on the basis that “we are unable to meet social care and housing needs”.

On 20 January 2021, a pre-action letter was sent by DPG followed by a second one on 26 January 2021. These letters informed the Defendant that he was subjected to forced labour whilst in Libya and that a referral had also been made by Care4Calais to the NHS safeguarding team as they were worried that he was at high risk of suicide.

On 29 January 2021, proceedings were issued.

On 30 January 2021, M was arrested following the disturbance and fire at the Barracks. He was not charged but he was transferred to Tinsley House IRC. He continued to express thoughts of suicide. Whilst at Tinsley House, M was assessed by Medical Justice who diagnosed him as suffering from moderately severe depression and PTSD.

M was eventually transferred to alternative accommodation on 23 February 2021.

F is a stateless “Bidoun” born in Kuwait on 16 June 1985. There is evidence in his case history that in 2014 he was detained and tortured by the police following protests.

F arrived in the United Kingdom by boat in July 2020 and claimed asylum. He was initially accommodated in a hotel in London, for around six weeks, before being transferred to the Barracks in September 2020.

F was also amongst the residents who began to sleep outside in early January 2021, and, from 13 January 2021, he was refusing food.

F tested positive for Covid-19 on 17 January 2021.

On 20 January 2021, a pre-action letter was sent by DPG and, on 29 January 2021, proceedings were issued.

On 31 January 2021, F was assessed by Dr Galappathie who diagnosed him as suffering from depression, anxiety disorder and PTSD and noted that his mental health appeared to have worsened significantly since being accommodated at the Barracks. He recommended that F be transferred urgently to alternative accommodation in the community.

F was transferred out of the Barracks to hotel accommodation on 4 February 2021. 362. On 5 March 2021 he was transferred to dispersal accommodation in Liverpool.

OMA is a national of Sudan. His date of birth is 14 September 1996. His case history includes evidence that he was arrested and detained for alleged anti-government activities and was beaten, electrocuted and waterboarded. He travelled to Libya but was detained by traffickers and subjected to forced labour and torture for several months before he escaped.

OMA arrived in the UK on or around 20 October 2020 and claimed asylum on 21 October 2020. He was then accommodated in a hotel in London.

OMA was transferred to the Barracks in November/December 2020 although the precise date was unclear at the time of this judgment and was being investigated by the Defendant. He was told it would be a temporary move and that he would be moved again soon.

OMA was initially sharing a 14-bed room. He was later moved to a single room in accommodation block.

As noted above, on or around 10 January 2021 OMA began to experience symptoms of Covid-19 and tested positive. He was then moved to the games room where he stayed until 25 January 2021. OMA underwent a second test for Covid-19 which was positive on 25 January 2021, but he was moved back to his previous room on the same day.

On 21 and 26 January 2021, pre-action letters were sent by DPG.

On 1 February 2021 Dr Galappathie diagnosed OMA as suffering from severe depression, anxiety disorder and PTSD and noted that his mental health had deteriorated since being accommodated at the Barracks. He recommended that OMA be urgently transferred to alternative accommodation in the community.

On 5 February 2021 Chamberlain J ordered that the Defendant transfer OMA to alternative accommodation by 8 February 2021.

XD is a Palestinian national, aged 30. His case history includes evidence that he was a victim of domestic violence and persecution in Gaza from a young age, was detained and tortured by Fatah and has scars from his torture.

He entered the United Kingdom by boat on 31 July 2020, claimed asylum on 1 August 2020 and was screened that day. He was then accommodated in a hotel in Slough. On 23 September 2020, he was moved to the Barracks.

On 8 January 2021, he informed Doctors of the World that he has physical injuries as a result of torture.

On 14 January 2021, Matthew Gold & Co sent a letter before action to the Defendant requesting that XD be moved to suitable accommodation. That request was refused by the Defendant on 1 February 2021.

On 20 January 2021, XD tested positive for Covid-19.

On 3 February 2021, Martin Spencer J ordered that XD be moved to alternative adequate accommodation within 24 hours. XD was then moved to a hotel in Newham, London on 4 February 2021.

On 3 March 2021, XD attended a psychiatric assessment with Dr Lisa Wootton, Consultant Forensic Psychiatrist, who diagnosed him as suffering from PTSD, complex PTSD and severe depressive disorder.

YZM is a Sudanese national from Darfur, aged 21. His case history includes evidence that he was arrested, detained and tortured in Darfur and subject to electrocution. He fled Sudan through Libya, where he was threatened, beaten and forced to work in conditions strongly indicative of modern slavery.

YZM arrived in the United Kingdom by boat on 30 July 2020. He was detained on arrival and screened on 1 August 2020 at Yarl’s Wood He was then accommodated in a hotel until 23 September 2020, when he was transferred to the Barracks.

In December 2020, Care4Calais referred YZM to the Salvation Army as a potential victim of trafficking. YZM was informed by Migrant Help that he had been accepted by the Home Office as such, but he had not been provided with a reasonable grounds’ decision at the time of the hearing.

On 15 January 2021, Matthew Gold & Co wrote to the Defendant requesting that YZM be moved from the Barracks.

On 22 January 2021, the Defendant agreed to move YZM based on his individual circumstances but failed to set out a proposal for his transfer or to transfer him.

On 23 January 2021, YZM tested positive for Covid-19.

On 4 February 2021, YZM issued these proceedings with an application for urgent consideration and interim relief. On the same day, the Defendant moved YZM to a hotel in Newham, London.

On 3 March 2201, YZM was assessed by Dr Lisa Wootton, Consultant Forensic Psychiatrist who determined that he would have met the diagnostic criteria of PTSD and severe depression while at the Barracks but that that his condition had improved since his transfer.