Hetoja v Secretary of State for the Home Department (Judgment 24 October 2002) (Admin Crt)

Asylum seeker – NASS – human rights

H, a destitute asylum seeker, had been housed in local authority with accommodation, together with her extended family (including her son’s fiancée and their children), pending the determination of her asylum application. Following the rejection of her application, and subsequent appeals, responsibility for housing H passed to NASS. H, her husband their children youngest son, were offered temporary hostel accommodation, but in accordance with the Immigration and Asylum Act 1999, no offer of accommodation was made to the fiancée and her children. H applied for judicial review of NASS’s decision, arguing that separation from her grandchildren, for whom she was the primary carer, would be damaging to them and amounted to a breach of her rights under art 8 of the Convention. In particular, H argued that, on its true construction, s97(2) Immigration and Asylum Act 1999precluded the Secretary of State from taking into account critical elements for a decision compliant with articles 6 and 8 of the Convention, namely H’s preferences as to locality and nature of the accommodation.

Dismissing the application, the judge agreed that the phrase ‘may not’ in s97(2) and Reg. 13(2)(a) Asylum Support Regulations 2000 was mandatory in nature with the result that the Secretary of State could not take H’s preferences into account. However, whilst, obliged to consider the individual circumstances of each applicant, including their needs and family ties, the Secretary of State was not required to go any further than giving H the opportunity to state her circumstances relevant to her personal needs and her family ties. Article 8 of did not require the Sec. of State to take account of H’s accommodation preferences. In this case H and her husband had been provided with free accommodation that was within walking distance of her grandchildren and therefore her art 8 rights had not been breached. The availability of judicial review of the Sec of State’s decision meant that there was no breach of art 6.

Leave a Reply

Your email address will not be published.