Accommodation for Asylum Seekers

November 16th, 2022

Section 95 of the Immigration and Asylum Act 1999, read together with Regulations, imposes a duty on the Home Secretary to provide “ support” for asylum seekers who appear to her to be, or to be likely to become destitute. Someone who does not have adequate accommodation is destitute. Support includes accommodation. Under Section 98 she is under a duty to provide temporary support in the form of accommodation to an asylum seeker, as defined, who appears to be destitute, until a Section 98 decision is taken.

Cases brought by Ipswich Borough Council and East Riding of Yorkshire Council (2022) EWHC 2868 (KB) concerned the lawful planning use  Hotels for which the Councils were local planning authority.  The Councils sought to take planning enforcement action. This was on the basis that use to accommodate asylum seekers would involve the use of the buildings as a  hostel, rather than a hotel, and thereby a material change of use without planning permission and  a breach of planning control. However, Holgate J refused the Councils injunctions under Section 187B of TCPA 1990.

The Judge sets out the legal principles on material change of use at paras 68-71 inc. The making of a change of use of itself does not amount to development. That depends upon tthe change is “ material; “ in terms of planning considerations. Planning considerations are to do with the character of the use of land. The Use Classes Order simply defines certain changes of use so that they are not to be treated as development. It does not operate so as to treat a change from a use within a Use Class to another use outside that Class a  material change of use.

So where the use of land changes from a hotel to a hostel, the only effect of the UCO is that that change is not excluded from development control. The UCO cannot be used to treat that change as representing itself a material change in the use of land. Whether that is so will depend on a case-specific assessment of the effect of the change on the character of the use of the land, on other words, the planning consequences of the change.

Holgate J then addressed what may be considered to be a hotel or a hostel. That is ultimately a question of fact. The criteria set out in the cases are not to be treated as prescriptive or conclusive. Neither word is to be regarded as a term of art. The decision-maker is responsible for finding the facts. There is a spectrum of hostel uses. Asylum seekers are accommodated in arrange of properties with different planning uses, not just hostels. The need is to assess not only whether a change of use has occurred, but also whether that change is material, in planning terms.

Holgate J addressed enforcement action from para 84, and principles for the grant of an injunction from para 89, in terms of triable issue, adequacy of damages, balance of convenience, and planning harm.

Comments are closed.