Government acted unlawfully when changing policy on allocation of asylum accommodation: High Court

The amendments to the policy were introduced in version 11 of the policy in February 2024, under the previous government, and retained in subsequent versions.

The claim was brought by Freedom from Torture (FFT) and the Helen Bamber Foundation (HBF), two leading charities supporting survivors of torture and trafficking.

They contended that the changes removed long‑standing protective provisions for survivors of torture, trafficking and other serious violence without consultation, without proper regard to equality duties, and without adequate inquiry into the impact on a vulnerable cohort of asylum seekers.

The changes included removal of the right to a single room or proximity to treatment services. The evidential burden was also shifted onto the individual asylum seeker.

The Home Office made these changes without giving FfT or HBF, described by Mr Justice Sweeting as “respected and expert bodies”, any advance notice or opportunity to consult, “suddenly abandoning an established practice of consultation that had governed their relationship for over two decades.”

The grounds for the judicial review were:

• Ground 1: The Home Secretary breached a duty to consult with stakeholders – including the claimants – prior to the publication and implementation of the Allocation of Asylum Accommodation policy Version 11 and did not consult prior to the publication and implementation of version 12 and version 13.  The charities claimed the duty arose under common law from an established practice of consultation and due to the impact on their client groups was such that a failure to consult both Freedom from Torture and the Helen Bamber Foundation specifically would lead to ‘conspicuous unfairness’.
• Ground 2: the claimants contended that the Home Office had acted in breach of the Public Sector Equality Duty (PSED) under section 149 of the Equality Act 2010 in the following ways:
  1. The relevant decision maker, the Minister appeared not to have had due regard to the PSED;
  2. The defendant did not have due regard to the equalities impact of the changes implemented under Allocation of Asylum Accommodation policy Version 11 and subsequently on those survivors of torture, trafficking and other serious forms of violence who have protected characteristics. This breach had not been remedied by a later equality impact assessment.
• Ground 3: in formulating and implementing the amendments to the suitability criteria in version 11, the Home Secretary acted unlawfully in breach of the Tameside duty by failing to take reasonable steps to inform herself of the impact of the changes on survivors of torture, trafficking and other serious forms of violence. The breach had continued under later versions of the policy in the absence of any monitoring by the Home Office of the impact of the changes on affected vulnerable groups.

The Court was therefore asked to rule on whether the Secretary of State had:

1. a duty to consult with FfT and HBF in respect of the policy changes to room-sharing and dispersal affecting their patients;
2. breached the Equality Act 2010 section 149 in respect of the policy changes implemented in version 11, and subsequent versions, of the Allocation of Asylum Accommodation;
3. breached her Tameside duty of inquiry to inform herself of the potential impact of the policy changes on survivors of torture, trafficking and other serious forms of violence prior to the publication and implementation of the policy changes under challenge in version 11 and the decision to maintain those policy changes in version 12 and version 13.

Mr Justice Sweeting said: “The short answer to each of the agreed issues is in the affirmative.”

The judge ruled that the Home Secretary acted unlawfully by failing to consult and undertook no consultation or meaningful engagement before introducing fundamental policy changes.

He added that the omission to consult “cannot be justified by reference to urgency or policy development at pace, particularly given the factual circumstances at the relevant time and the long-standing history of constructive consultation.”

Secondly, Mr Justice Sweeting found that the Home Secretary acted in breach of the PSED, by failing to have due regard to the need to eliminate discrimination and to advance equality of opportunity for asylum seekers with protected characteristics, in particular survivors of torture, trafficking and other serious violence.

The judge said: “The EIAs were materially deficient and confined in scope, failed to assess or quantify the differential and adverse impact of the policy changes on this cohort, and did not engage with established evidence of clinical risk. There was no lawful pre-implementation assessment, no meaningful consultation, and no adequate post implementation monitoring, despite the PSED being a continuing duty. In consequence, the Defendant did not properly identify, understand or address the potential disproportionate harm caused to vulnerable asylum seekers.”

Finally, Mr Justice Sweeting said the Home Secretary acted in breach of the Tameside duty by making fundamental policy changes without inquiry, consultation or engagement with obvious expert sources, and without gathering or considering plainly relevant material.

The High Court judge therefore held that, taken together, these failures amounted to a serious breach of the defendant’s public law duties, rendering the impugned policy changes unlawful.

Natasha Tsangarides, Associate Director of Advocacy at Freedom from Torture, said: "No matter who we are or where we come from, we all deserve to live in safety. [This] judgment is a vital and resounding victory for torture survivors, who for too long have suffered under this harmful policy.

“The judgment makes clear that the government acted unlawfully in changing its policy. We have seen the consequences of those changes: survivors of torture have been placed in harm’s way. This must serve as a wake-up call for the government to listen to the experts and finally provide safe and secure housing once and for all.”

Kamena Dorling, Director of Policy at the Helen Bamber Foundation, said: “We have repeatedly raised concerns about terrible living conditions impeding the recovery of survivors of torture and trafficking. We have highlighted the shocking increase in self-harm and suicidal ideation in asylum accommodation.

“The decision to force more vulnerable people into large accommodation sites and shared hotel rooms was a political choice that ignored the evidence from those working with refugees every day.

“This legal battle was about making sure survivors are never an afterthought in the policies that shape their lives. It is time now for a different, more humane, approach.”

Law firm Deighton Pierce Glynn, which acted for the claimants, said: “In practice, without the success of this challenge survivors of torture and trafficking were at greater risk of being forced to share rooms or being moved far from the support they need, with little warning and no automatic safeguards. Many in practice found it almost impossible to gather the evidence required to prove their need for safe accommodation, especially given the barriers they already face.

“The Court’s decision is a strong reminder that the government must listen to expert organisations, properly consider the needs of vulnerable people, and base its decisions on real evidence. The ruling makes clear that policy changes of this kind cannot be made behind closed doors or without regard for the real-world impact on those most at risk.”

The Home Office has been approached for comment.

Harry Rodd