3 June 2021: Comment from StatusNow4All signatory: Care4Calais: · **Breaking news**The high court found today:
– Napier Barracks was inadequate accommodation for asylum seekers, placing them at risk of a fire and contracting COVID-19
– The Government’s process for selecting people to be accommodated at the Barracks was flawed and unlawful
– Residents of Napier Barracks were unlawfully detained under purported Covid rules
However over 265 asylum seekers remain accommodated at Napier barracks today and the Government intends to increase numbers up to 337. Already, since being refilled, over 45 people have been transferred out of the Barracks on the grounds of vulnerability following the legal work, indicating that there is still no adequate screening process in place.
We are delighted with this judgement, which follows long months of the Government ignoring a mountain of evidence and complaints that the Barracks are not only unsuitable, but highly damaging, to vulnerable people entrusted to their care. It is disappointing that evidence provided by NGOs and regulators was ignored for so long and it has taken legal action to reach this verdict. However today Napier barracks remains in use and our goal must be to get those inside moved to suitable accommodation as soon as possible. Penally was closed and Napier should be too.
Full detail courtesy of @DPG
In a judgment handed down today, the High Court has found that Napier Barracks provided inadequate accommodation for asylum seekers, that the Defendant’s process for selecting people to be accommodated at the Barracks was flawed and unlawful, and that residents of Napier Barracks were unlawfully detained under purported Covid rules.
The claim was brought by six asylum seekers who were accommodated in Napier Barracks between September 2020 and February 2021. All of the Claimants were vulnerable victims of trafficking and/or torture, who experienced a deterioration in their mental health as a result of their accommodation at Napier Barracks and were transferred to alternative accommodation after legal proceedings were initiated.
The Court heard evidence that:
– the Home Secretary decided to use dormitory accommodation at the barracks despite advice from Public Health England that it was not safe to do so during the COVID-19 pandemic. The precautions which were taken were completely inadequate to prevent the spread of Covid-19 infection and this resulted in a widespread COVID-19 outbreak which was “inevitable”;
– the Claimants were exposed to an unacceptable fire risk as there were serious concerns about fire safety which had not been adequately addressed;- the Barracks felt “like a detention centre or prison camp”;
– there were inadequate safeguarding arrangements at the Barracks, with a third of residents feeling suicidal;
– there were fundamental failures of leadership and planning by the Home Office, which had led to dangerous shortcomings in the nature of the accommodation and poor experiences for the residents.
In upholding the claim, the Court found that the accommodation at the Barracks did not comply with section 96 IAA 1999 read with Directive 2013/9/EC, which sets out “minimum standards” for reception of asylum seekers (“the RCD”). In finding that the Home Secretary had acted irrationally, Mr Justice Linden stated that:“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”.
The Court also found that the process for selecting people to be accommodated at the Barracks was flawed and unlawful, both in relation to (a) the initial decision to transfer asylum seekers to the Barracks, and (b) the monitoring or review of suitability post transfer. Mr Justice Linden found that there were significant numbers of people living at the Barracks, including the Claimants, for whom such accommodation was unsuitable as defined by the Home Secretary’s own suitability assessment criteria. On the evidence, the levels went beyond a few aberrant cases which could have resulted from human misjudgement or error.Finally, the Court found that from 15 January 2021 when an instruction was given that residents were not to leave Napier Barracks until they were allowed to leave, the Claimants were unlawfully detained both at common law and under Article 5 of the European Convention on Human Rights.
Future use of the Barracks
Despite emptying Napier Barracks in early April 2021 and ongoing concerns from senior public health officials that the site can never be made COVID-19 secure, on 9 April 2021 the Home Secretary began re-filling the barracks. There are currently over 265 residents again sleeping in dormitories of up to 12 people and we understand that the intention is to refill the barracks to over 300 residents.
Since 9 April 2021, over 45 people have already been transferred out of the Barracks on the grounds of vulnerability following the threatening or issuing of legal proceedings, indicating that there is still no adequate screening process in place.
As Mr Justice Linden noted in his judgment, whether “improvements will address the fundamental issues in relation to the use of the Barracks to accommodate asylum seekers remains to be seen”.
We have not yet been informed whether the Home Secretary will seek to appeal the judgment.
Sue Willman and Emily Soothill, Solicitors of Deighton Pierce Glynn commented:
“Based on government evidence, the High Court has found that the Home Secretary acted both unlawfully and irrationally in accommodating our clients at Napier Barracks, placing them at risk of a fire and contracting COVID-19, both of which happened. People seeking asylum are more vulnerable to physical and mental illness. They have the right to be treated with dignity and should not be accommodated in detention-style barracks. Almost 300 people are still accommodated at Napier and we urge Priti Patel to close the Barracks once and for all”.
Deighton Pierce Glynn represented four of the Claimants and two of the Claimants were represented by Matthew Gold Solicitors.
Liberty and The Joint Council for the Welfare of Immigrants intervened by way of written submissions.
Counsel instructed by Deighton Pierce Glynn were Tom Hickman QC of Blackstone Chambers and Leonie Hirst of Doughty Street Chambers, with initial assistance from Adam Wagner of Doughty Street Chambers.
Shu Shin Lu and Antonia Benfield of Doughty Street Chambers were instructed by Clare Jennings of Matthew Gold Solicitors.
Zoë Leventhal of Matrix Chambers, Ben Amunwa of The 36 Group, and Admas Habteslasie of Landmark Chambers were instructed by Liberty,
and Sonali Naik QC and Ali Bandegani of Garden Court Chambers were instructed by Freshfields on behalf of JCWI.
In a damning and much awaited judgment handed down today (NB & Ors v Secretary of State for the Home Department  EWHC) the High Court found that the Home Secretary’s decision to use Napier Barracks to accommodate destitute asylum seeking men was unlawful and irrational. Mr Justice Linden found that the Napier barracks, with its detention-like feel, overcrowded dormitory accommodation and lack of privacy was unsuitable to accommodate destitute asylum seekers and contributed to a significant deterioration in the mental and physical health of residents.
Significantly, the High Court found that the Home Secretary had unreasonably disregarded Public Health England advice that the barracks were not suitable, and had failed to implement even her own measures to try and protect residents from the risk of Covid-19. The consequence being that it “was virtually inevitable that large numbers of residents would contract Covid-19, a disease which was capable of causing hospitalisation, long-term harm and / or death”, which is precisely what happened in mid-January when more than 120 residents contracted covid-19.
The High Court also found that the Home Secretary had ignored the Crown Premises Fire Safety Inspectorate’s report that the arrangements failed to provide adequate protection to asylum seekers from serious risks of fire.
Mr Justice Linden also found that despite the Home Secretary having accepted that vulnerable asylum seekers should not be accommodated at Napier barracks, she had failed to implement a reasonable system that ensured vulnerable asylum seekers were not moved to Napier barracks in the first place, or for promptly removing vulnerable men from Napier barracks after allocation.
Despite accepting that the Barracks were not suitable to accommodate vulnerable asylum seekers, the Home Secretary failed fundamentally to put any reasonable system in place that was capable of the most basic inquiries to ensure that no asylum seeker who was vulnerable was allocated to Barracks accommodation. The Home Secretary also failed to put in place any reasonable system capable of detecting and promptly removing vulnerable people from the Barracks after allocation.
Mr Justice Linden also held that the Claimants had been falsely imprisoned and deprived of their liberty in breach of Article 5 of the European Convention on Human Rights, when Napier barracks was placed in lockdown with residents prevented from leaving for weeks following the Covid-19 outbreak in January.
The challenge was brought by six Claimants who were all resident in Napier barracks between 21 September 2020 and late January / early February 2021. All of the Claimants were only removed after these judicial review proceedings, with three of the Claimants only being moved after the Court ordered this. Soon after the barracks opened residents and charities began expressing concerns about the conditions within the barracks and the impact that this was having on the health of residents. In early March of this year the Independent Chief Inspector of Borders and Immigration and Her Majesty’s Inspectors of Prisons, published a highly critical interim report which found Napier barracks to be impoverished, filthy, and like a detention centre. The evidence informing the Judgement was drawn from key non-governmental organisations including human rights campaigner Adam Yasir’s Rosa Parked’s Journey, Care4Calais, the Helen Bamber Foundation, Freedom from Torture, Doctors of the World, the British Red Cross, and many others.
Following the grant of permission in this claim for judicial review, the residents of Napier were removed and the barracks were emptied by 2 April. However, in the days before the hearing in NB the Home Secretary began to move new residents, and continued to do so, despite the damning evidence that emerged in the course of the NB hearing and the highly critical ICIBI/HMIP report. It is estimated that there are currently around 200 residents at Napier barracks with charities having been told that the intention is to repopulate Napier barracks to over 300 men. New claims for judicial review have since been issued in relation to the decision to repopulate the barracks.
The Claimants XD and YZM (the 5th and 6th Claimants) are represented by Clare Jennings and Olivia Halse at Matthew Gold and Co. Solicitors and Shu Shin Luh and Antonia Benfield at Doughty Street Chambers. The 1st to 4th Claimants are represented by Emily Soothill and Sue Willman at Deighton Pierce Glynn and Leonie Hirst at Doughty Street Chambers and Tom Hickman QC at Blackstone Chambers.
Commenting on the outcome of the Judgment, Clare Jennings, Director and Head of Public Law at Matthew Gold & Co, who acts for XD and YZM, two of the six Claimants, said:
“We are delighted that the High Court has recognised that the Home Secretary’s decision to accommodate men in Napier barracks was unlawful and irrational and that residents were unlawfully deprived of their liberty. The Claimants and the other Napier residents endured months of living cheek-to-jowl with hundreds of other men in overcrowded dormitories, without any privacy, at risk of injury from fire and covid-19, which has seriously affected their mental and physical health. For months the Home Secretary ignored the complaints and concerns of residents, charities and legal representatives that Napier barracks was unsuitable to house destitute asylum seekers, that vulnerable men were wrongly being sent to the barracks, and that the continued use of Napier was endangering the physical mental health of residents. The evidence which emerged during the course of this case shows that the Home Secretary similarly ignored advice from Public Health England and local health protection teams that a Covid-19 outbreak was inevitable, and failed to take action to address serious fire safety concerns, further risking the well-being and health of residents. Today, these residents of Napier barracks were finally heard. This judgment confirms that Napier barracks did not provide adequate accommodation for the asylum seekers housed there and should never have been used. Urgent action is now required from the Home Secretary, in light of this damning judgment, to move those men still at Napier to suitable accommodation and to immediately stop the use of the barracks for housing asylum seeking men”.
“Today’s judgment is highly significant in reinforcing the standards of adequate accommodation for those seeking international protection in the UK. Since the introduction of contingency asylum support accommodation, there have been a range of concerns about the accommodation, which the Home Office has failed to remedy. The accommodation at Napier Barracks has been widely criticised since its inception, and despite repeated concerns being raised about vulnerable asylum seekers being accommodation in such conditions, which exposed them to a risk of harm including Covid-19 infection, the Home Office has failed to acknowledge and act upon those concerns. The actions of the Home Office have been stark in circumstances where a significant number of vulnerable men who were not suitable for accommodation in former military barracks were placed there, and where the evidence overwhelmingly supported that the accommodation was unsuitable for a significant majority of residents and resulted in a significant decline in their mental health. The case is important in establishing the individual rights and entitlements of the individual claimants but more broadly in establishing the unlawful conduct of the Home Office to vulnerable asylum seekers who are wholly reliant upon the Government for support. The case is further testament to the huge importance of voluntary sector organisations and NGOs who provided a lifeline and critical support to residents at Napier Barracks, throughout the litigation and beyond, ensuring that they were able to access levels of support which the Home Office had unlawfully failed to provide them.”
Olivia Halse, Associate Solicitor at Matthew Gold and Co comments:
“This is a great result for our clients and all of the residents of Napier who were subjected to the horrific conditions of the barracks. For months, concerns have consistently been raised by NGOs, charities, lawyers and the residents themselves that the barracks were not suitable for this vulnerable cohort – but unfortunately these were ignored time and time again. We are grateful that the Court has considered these concerns, shone a light on the issues in this case and confirmed that the Secretary of State has acted unlawfully. Whilst this victory is welcomed, the barracks are still being used to house asylum seekers. It is now time for the Home Secretary to do the right thing and close the barracks.”
The judgment can be found here.
See also Doughty Street Chambers: https://www.doughtystreet.co.uk/news/high-court-finds-napier-barracks-unsuitable-destitute-asylum-seekers