High Court dismisses challenges to government’s use of former airfields to accommodate asylum seekers

The royal courts of justice 1648944 1920

Yesterday (6 December 2023), the High Court (Thornton J) handed down judgment dismissing three combined claims for judicial review challenging the lawfulness of the Home Secretary’s decision to use two former RAF airfields to accommodate asylum seekers ([2023] EWHC 3140 (Admin)).

In March 2023, the Home Secretary decided to use parts of RAF Scampton and RAF Wethersfield to accommodate asylum seekers. In the case of Wethersfield, a local resident (Gabriel Clarke-Holland) and the local planning authority (Braintree District Council) each brought claims challenging the decision to use that site. There was also a challenge to the screening direction issued by the Secretary of State for Levelling Up, Housing and Communities in respect to the Wethersfield site. In the case of Scampton, the local planning authority – West Lindsey District Council – brought a claim challenging the decision to use that site.

To use the sites, the Home Secretary relied upon the permitted development right pursuant to Class Q in Part 19 of Schedule 2 to the Town and Country Planning (General Permitted Development) (England) Order 2015 (SI 596 of 2015). Class Q permits, subject to conditions, development by or on behalf of the Crown on Crown land for the purposes of (a) preventing an emergency; (b) reducing, controlling or mitigating the effects of an emergency; or (c)taking other action in connection with an emergency. Development under Class Q is subject to the condition that it ceases and is reversed within 12 months.

The principal issues raised by the three claims were the correct interpretation of “emergency” in Class Q, whether assessment of the environmental effects of the development on the basis of 12 months’ use was lawful, and whether the Home Secretary had complied with the public sector equality duty.

In relation to Class Q, the Judge concluded that the definition of “emergency” in Part Q.2(1) of the Order is intended to be comprehensive in relation to the application of Class Q and understood in its stimulated sense. In concluding that the immediate need to provide accommodation for destitute asylum seekers was an “emergency” within the meaning of Class Q, the Home Secretary had applied the legally correct construction of that term.

In relation to environmental assessment, the Court found that the judgment by the Home Office and the Department for Levelling Up, Housing and Communities that, as at March 2023, the project was a 12 month project, was lawful. The Court therefore concluded that the assessment of the project on the basis of 12 months’ use was not unlawful.

In relation to the PSED, the Court concluded that the Home Secretary had not acted irrationally by relying on the Department’s understanding as to the risk of community tensions gained from her department’s previous experience of housing asylum seekers in other parts of the country, nor did she defer the discharge of her duty.

A subsequent ground of challenge by BDC concerning the Home Secretary’s treatment of “value for money” was also dismissed. The Court concluded that value for money was not so obviously material that it was irrational for the Secretary of State to rely on the submission that her permanent secretary was content with the value for money analysis without inquiring into the details of the underlying analysis.

The Judge has granted all three Claimants permission to appeal to the Court of Appeal.

The case has been reported by the BBC, The Guardian, and The Telegraph

The judgment is available here.

Paul Brown KC, Nick Grant and Harley Ronan acted for the Secretary of State of the Home Department. Isabella Buono and Rebecca Sage were involved at the earlier stages of the claim.

Alex Goodman KC, Charles Bishop and Barney McCay acted for Mr Clarke-Holland, instructed by Deighton Pierce Glynn.

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