On 24 June Mrs Justice Leiven found the government had acted unlawfully in its continued use of Napier barracks as accommodation for asylum applicants. The Home Office strategy of opening centres for refugees and asylum seekers without first having ensured the sites are fit for purpose and conform to the law, or without adequate consultation with those most likely to be impacted by them, is becoming a pattern. Is the Home Office intending to, once again, break the law as it pushes ahead with opening Linton camp, and, if so, who will suffer?
The use of Napier barracks as accommodation for asylum applicants
The Home Office initially took over Napier barracks in September 2020 when it was struggling to safely house asylum seekers crossing the channel during the pandemic. Change of use planning permission was granted for six months (under the Part 19, Schedule 2, ‘Class 2’ of the Town and Country Planning Act) but was then extended to 12 months, the maximum allowed, as the pandemic continued. Permission expired in September 2021.
Over the course of the year the government made no efforts to apply for full planning permission but on 26 August 2021 it made a Special Development Order (SDO) – effectively giving itself planning permission for the site – for five years until September 2026. The SDO was laid before parliament under the negative resolution procedure (it would automatically become lawful unless a vote was called) on 27 August 2021, when parliament was not sitting, and it came into force on 21 September 2021.
Napier barracks: unfit for human habitation
There has been much criticism of the use and running of Napier barracks and the Home Office’s failure to act on and put right its failures. Inspection reports made clear its unsuitability for long-term use and in June 2021 the High Court found its use was ‘unlawful’ due to the appalling conditions in which asylum seekers were held.
The court made it clear that for asylum seekers to be housed lawfully, significant improvements would have to be made to the accommodation and the way in which people’s health needs were met (following serious outbreaks of Covid at the camp). The Home Office maintains that required improvements had been made prior to the making of the SDO and that the accommodation conformed to good standards.
Judicial review
A local resident and volunteer with Friends of Napier applied for a judicial review of the Home Office’s SDO. That case was concluded last week.
The judgment by Justice Lieven, covered a number of elements relating to the lawfulness of the SDO and she found in favour of the Home Office in a number of respects (primarily relating to the extent to which it was required by law to have consulted prior to invoking the SDO) and found for the applicant on only one ground – that the SDO breached the Equality Act and left asylum seekers at risk of victimisation and harassment.
Her finding that the Home Office had acted unlawfully relied on the substantial nature of the change from a temporary arrangement to one extending to five years and therefore of a much more permanent nature. An equality impact assessment had been carried out but only on the presumption of the camp being a short-term solution in an emergency.
She found “there is a very significant difference between a development which is proposed to continue for two months and one for five years”, especially given the size, scale and environment of the camp and “large segregated accommodation for male asylum seekers on the edge of town has obvious potential to create tensions within the community”.
She also echoed the inspectorates’ findings that failure to consult with local people and services had had a deleterious impact on service provision and capacity and that “pressure on services, for example on the local GP, community health and possibly on the police, will be very much greater over a prolonged period. The potential for impact on community relations are wholly different”.
Planning permission for Linton
The government has made no application to the district council for change of use for the Napier site. It intended to use the SDO process as legal cover. Given that, according to the government:
- the pandemic is ‘over’;
- proposals for asylum reception centres have been known since April 2021 when the Plan for Immigration was published;
- the number of people applying for asylum has conformed to a consistent pattern (although there were fewer applicants while global transport routes were closed) over the past five years; and,
- Conservative policy is for communities to have a greater say in planning permissions;
it will be difficult to argue the need for ‘emergency’ powers in court when the inevitable, legal challenges are made. Additionally, the Napier judgment makes it clear that plan longevity is a key factor in determining the extent and nature of the consultations that should be undertaken prior to a decision on suitability being reached.
Home Office consultations with Linton residents
Home Office consultation with local residents about the proposed conversion of the military camp at Linton-on-Ouse to a centre for asylum applicants only commenced once the decision was made to pursue the plan. The Home Office only met with villagers on the insistence of the parish council and have made no effort to communicate with them since or act on their concerns.
Justice Lieven’s conclusion that the Napier barracks proposal was so significant in its likely impact on asylum applicants and residents that a full consultation was warranted prior to formulating the plans, is even more relevant to Linton where the scale of the proposal is so much greater. The Home Office plans to accommodate up to 1,500 male asylum applicants in a village of 700 residents in a very rural area with few facilities and already creaking public services. Napier barracks is in a much less rural location and 400 was the maximum number of asylum applicants expected.
Also, longer-term housing plans for the Napier site, for which planning permission contractual obligations had already been established, meant the Home Office proposals would always be time limited. There are no such constraints operating in Linton. If the Linton site is established as a refugee centre, it will be permanent.
Pressures on local resources
The local health authority has already established that it cannot serve the expected asylum applicant population by extending existing services as they are already unable to recruit sufficient staff to meet current health needs in the community.
The centre would need to have in-person legal advice and there are no resources locally (or within a reasonable distance to provide this). Refugee legal services are already under great strain and lack of timely, appropriate legal advice is the primary reason for last-minute appeals. The government is already the subject of a judicial review for failing to ensure in-person legal advice at the recently opened Woman’s Immigration Removal Centre in Co Durham.
Safety and security
Levels of acquisitive (theft and burglary) crime in Linton could rise as a result of accommodating asylum seekers but only in line with the population increase. While there has been the occasional case of a violent offence by asylum seekers, this is often related to mental trauma that has not been properly addressed through lack of appropriate support services and the conditions in which asylum applicants have been held. Overall, the chances of being a victim of crime by an asylum seeker are negligible.
The greatest risk to residents and asylum applicants and general good order comes from the extreme right, supported by the Home Office’s hostile rhetoric and failure to engage. As I make clear in an earlier article, “It is in the consultation and information vacuum that the extreme right is trying to get a foothold locally and to stir up hatred, not just towards asylum applicants but also towards those who support refugees. The Home Office now finds it is unable to assure local people that their fears are groundless without revealing its prior campaign of hostile and racist misinformation was a scam”.
Justice Lieven drew similar conclusions in respect of Napier:
“The [Home Office] has failed to have regard to the duty to eliminate harassment and victimisation…the [equality impact assessment] did not have any meaningful regard to the impact of the decision on community relations in the area, in particular the co-location of the asylum accommodation and the housing development.”
The judicial review applicant had argued that the nature of camp accommodation – in a village but not integrated into it – made the asylum applicants more readily identifiable and (therefore) more easily targeted by racists. It noted that the security fears of local people had not been addressed by the Home Office.
This has been replicated in Linton where, at the public meeting, the Home Office addressed only their on-site security concerns. Responsibility for residents’ concerns has been left to the police who will respond with some additional patrols and quicker response times to any reported incidents, as far as resources allow. The Home Office has yet to recognise that it has a security and safety responsibility towards the public, or to establish what concerns needs to be fully addressed before the plan is implemented.
Napier judgment offers an opportunity to re-think Linton
One further point of interest in the Napier judgment that may impact on Linton. The Home Office submitted that the judge should not quash the legality of the camp on the basis that, had the equality impact assessment been carried out correctly, the Home Office might still have determined to open the camp and so a judgment that rendered the camp illegal now (and therefore cease to operate) would be a waste of time and money.
The judge disagreed. She stated:
“I do not consider that this is a case where a fresh decision is highly likely to be the same and that quashing the decision would merely lead to a waste of time and money. It may be that the Defendant would still decide to use Napier Barracks as asylum accommodation.
“However, given the concerns raised about the impact on community relations of the use, and the complete absence of analysis of the effects of that use over five years on community relations, I am not in a position to say there would be ‘no difference’ to the decision. Even if the substantive decision was the same, there is a real possibility that if proper investigation were made, and the Minister fully appraised as to the Equalities impacts of the development, further mitigation measures might be put in place.
“An EqIA for the five year use would inevitably consider impacts on local resources and this might well lead to a need to put further investment into those resources in ways that would reduce community impacts.”
All the evidence to date – failure to take account of previous court judgments, pursuing policies in the face of considerable opposition, avoiding parliamentary and other scrutiny, and willingness to break the law to get its own way – indicates a high likelihood that the government would still have decided to house asylum applicants at Napier had an equality impact assessment been undertaken.
However, treating the government as a sentient body that might change its mind having a fuller and better understanding of the facts means that, should the Home Office plough ahead with its proposals for Linton, it will be in breach of the court’s expectations and will have to account for its failures to take note of its own departmental findings.
The judge has made clear an asylum centre may be closed down if the Home Office, having been advised of the risks through prior consultation with villagers, fails to address the safety and wellbeing concerns raised with them.
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