R (DMA, AHK, BK and ELN) v SSHD [2020] EWHC 3416 (Admin)

The Home Office was found to have breached its duties under Article 3 ECHR and section 4 of the Immigration and Asylum Act 1999 (‘the 1999 Act’). This is because the Home Office had failed to provide accommodation to those at risk of destitution and/or inhuman and degrading treatment caused by homelessness in a compliant manner.

The Claimants were entitled to accommodation under section 4 of the 1999 Act. However, there were delays (e.g. of 105 days) after the section 4(2) decision before accommodation was provided. The Home Office accepted that in the absence of an express time limit in the 1999 Act and Regulations, accommodation must be provided within a reasonable period such that no breach of Article 3 occurs.

The Home Office had outsourced the provision of accommodation. However, Mr Justice Knowles held that the performance of the contracts (which were failing to meet their Key Performance Indicators (KPI)) put the Home Office in breach of its legal duties. While there may be leeway for underperformance of the contracts by the relevant firms, the Home Office had no margin under the law [241]. Mr Justice Knowles also identified non-exhaustive features of proper monitoring at paragraph 243, which include:

“1. it has regard to the context, which is the performance by a Secretary of State of her accepted legal duty to claimants who are destitute, who face an imminent prospect of serious suffering caused or materially aggravated by denial of shelter, food or the most basic necessities of life, and who are “highly vulnerable”;

2. it identifies the characteristics of the individuals involved;

3. it follows the progress of each case”

This is an important judgment covering the circumstances in which the Home Office may breach its legal obligations through outsourced services. Given the increasing use of third party contractors, this determination is likely to be relevant to future challenges.