A local authority has been found in breach of the European Convention on Human Rights (ECHR) after it subjected an asylum seeker to degrading treatment for a period of at least seven months.

A High Court judge ruled at the end of last month that Croydon Council breached Article 3 and 8 of the ECHR, under the Care Act 2014, in what is believed to be the first ruling in such a case where these duties overlap.

This is because the ECHR breaches were in response to how Croydon performed its Care Act 2014 duties in failing to assess the asylum seeker’s "accommodation-related" needs and failing to provide suitable accommodation for him and his family.

Garden Court Chambers (GCC) represented the claimant, named only as TMX, and were instructed by Monica Kreel of TV Edwards Solicitors.

In a release GCC said: “The lengthy and detailed judgment provides helpful guidance on the complex interplay between the obligations of a local authority under the Care Act [2014], and the obligations of the Secretary of State for the Home Department under Section 95 of the Immigration and Asylum Act 1999.”

“It is also a rare example of a local authority being found in breach of Article 3 ECHR for its failure to comply with its duties to provide care and support, including accommodation.

“As far as we are aware, it is the first time that a local authority has been found in a reported judgment to be in breach of Article 3 ECHR by reason of a failure to perform its duties under the Care Act [2014].”

Articles 3 and 8 of the ECHR are aimed at ensuring “no one shall be subjected to torture or to inhuman or degrading treatment or punishment”, and that “everyone has the right to respect for his private and family life, his home and his correspondence”.

So the question before Mr Alan Bates, sitting as Deputy High Court Judge, was this: “Where an asylum seeker’s physical or mental condition is such that they have accommodation-related care needs, who is responsible for providing the accommodation for that person? Is it the local authority responsible under the Care Act 2014, or does responsibility lie with the Secretary of State under Section 95 of the Immigration and Asylum Act 1999?”

The Claimant’s Case

TMX is a 50-year-old asylum seeker whose claim remains outstanding. He has progressive multiple sclerosis (MS) and functional neurological disorder. He also suffers from severe and varied nerve pain – called paraesthesia – and also has strong muscle spasms. He has described the pain he experiences as “agonising” and is a wheelchair user who cannot mobilise independently.

From June 2022, he had been accommodated by the Home Office under Section 95 of the Immigration and Asylum Act 1999 in one ensuite bedroom in an asylum hotel facility in the Croydon area. That single bedroom was shared with his wife and their two children.

GCC described this as “manifestly unsuitable” due to it being on the fourth floor as the lift could only just fit his wheelchair in and could not take him all the way back down to street level.

At the same time, the building had steps at the front and the platform lift was “out of order the majority of the time”, meaning TMX was in effect confined to the building, and at significant risk in event of fire.

GCC explained: “The bedroom was too small for him to store and use his disability-related equipment. The bathroom was inaccessible and did not have adapted toilet/shower facilities. The lack of space for him to mobilise using equipment meant he was bedbound.”

“The room was badly ventilated, and TMX would become unbearably hot in the summer months, exacerbating his MS symptoms. The room afforded TMX no privacy from his children for his personal care. His children had to look away, or wait in the communal hallway when his wife provided his personal care as he lay in bed.”

TMX’s case comes after the Byline Times as previously reported how 75% of councils have logged complaints about the conditions of asylum seeker accommodation, at a time when the Government had tabled plans to remove their ability to investigate those complaints.

In April last year, it was revealed that the Government planned to “legalise” ‘hazardous’ accommodation for asylum seekers by exempting refugee housing from licensing rules for homes of multiple occupations (HMOs).

HMO licences are one of the primary ways authorities ensure homes filled with large numbers of people they were not initially designed to fit aren’t a fire risk, dangerously overcrowded, damp, mouldy, or otherwise unsafe.

However, the Home Office has in the last week cancelled plans to remove housing protections for asylum seekers after a judicial review was brought by a number of claimants. It said: “It is longstanding government policy that we do not routinely comment on individual cases.

“If an individual does not have the right to be in the UK, we will make every effort to return to their country of origin or a safe third country.”

The Home Office did not respond to a request for a comment on TMX’s case.

The High Court Ruling

During the hearing, there was no dispute that TMX had eligible needs for care and support under the Care Act 2014, and a care package was in place at all relevant times. Indeed, Croydon’s own assessments acknowledged the unsuitability of the accommodation.

Where there was clarity needed was in the fact that while it was Croydon which was in fact accommodating TMX, the unsuitable property was provided by the Home Office. But on this point the court found in TMX’s favour, which was that the responsibility lies with the local authority.

In handing down his detailed judgment, Mr Bates explained: “The council should, when assessing the claimant’s needs for care and support including accommodation-related needs, have ignored any current or potential provision of accommodation for him under Section 95 [of the Immigration and Asylum Act 1999].”

Having found that the council was responsible for accommodating TMX and his family, the judge went on to consider whether, by failing to provide suitable accommodation to him, had breached Article 3 and 8 of the ECHR.

He added: “I am satisfied that the claimant’s remaining in unsuitable accommodation interfered with his physical and psychological integrity to a high degree comparable to the level crossing the severity threshold for breaching Article 3.

“I have so found essentially because his remaining in that accommodation has been a ‘but for’ cause of various impacts on him which are intimately connected with the concept of ‘private life’ for the purposes of Article 8.

“Those impacts have, in my judgment, substantially prevented him from: (a) pursuing any meaningful personal development, and (b) developing relationships with other human beings and the outside world save for his immediate family with whom he lives.”

Monica Kreel, TMX’s solicitor from TV Edwards, said: "This is a fantastic judgment for our client and for other disabled asylum seekers. The High Court has recognised that Croydon Council, in ignoring our client’s dire accommodation and refusing to resolve the situation when it had a duty to do so, breached his Article 3 and 8 rights. He has now, finally, been moved to a small flat where he is receiving his care with dignity. "

For its part, Croydon said it has accepted the High Court ruling and apoligised to TMX. A spokesperson added: “Our resident was being housed by the Home Office in line with 2018 Home Office guidance for asylum seekers with care needs.

“Despite our attempts to provide the best possible social care, it is now clear that the unsuitable accommodation was a barrier to this. We are sorry that our resident had to go through the courts to get this outcome and we will of course be taking on board lessons from this case in our work with other residents.”