Queen’s Bench Division, Administrative Court, Planning Court, Lieven J, [2022] EWHC 1635 (Admin), 24 June 2022

The Court ruled that the PSED had not been complied with by Lord Greenhalgh, the relevant Minister, when he granted permission in August 2021 for the use of Napier Barracks in Kent as accommodation for asylum seekers until March 2025. While the minister had recorded his having taken into account an Equality Impact Assessment (‘EqIA’) drawn up on 20 September 2020 and updated on 15 July 2021, that EIA had been based on the premise that the use of the barracks would continue only until 21 September 2021.

According to Lieven J:

106… The caselaw establishes that whether the s.149 duty has been complied with involves a highly fact sensitive inquiry, both into the nature of the decision and the form of the consideration of equality issues. The nature of the development here is one that raises very obvious issues under s.149, in particular relating to potential victimisation and harassment under s.149(1)(a), and the fostering of good relations under s.149(c). The provision of a large amount of segregated accommodation for male asylum seekers on the edge of the town has the obvious potential to create tensions within the local community. This risk was set out in the EqIA and I accept that the Minister must therefore have been aware of the general issue.

107. However, there is a very significant difference between a development which is proposed to continue for two months and one for five years. This must especially be the case where the issue is developing community relations, as opposed to some physical impact which will vary little over time. Pressure on community services, for example on the local GP and community health services and possibly on the police, will be very much greater over a prolonged period than only two months. The potential for impact on community relations are wholly different over the much longer period. In the documentation before the Minister, there is no consideration of those longer-term impacts on the community relations. There is no consideration of the ability of local health services to manage this population over the much longer period, and how that situation might impact on issues relevant to s.149.

108. Very importantly, this lack of assessment of PSED impacts over five years then means that there is no consideration of what steps could be taken to mitigate such impacts, including liaison between local agencies. The PSED is there in part to allow for the proper consideration of impacts from a decision so that the decision maker can consider what further steps or mitigation might be taken. If an EqIA had been carried out for the SDO development, proposals for mitigation or changes to the scheme might have been recommended which the Minister would then have considered. It is for this reason that the failure to produce a proper EqIA, in whatever form, is of material significance in this case. Although the Minister knew that the use would continue for five years, he did not have information about how that would impact on community relations over that period and what other steps could or should be taken.

Lieven J rejected the defendant’s invitation to refuse relief on the basis that its decision on the use of the barracks would have been the same had the PSED been complied with:

113… 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.

Claimant: Mr Alex Goodman, Mr Alex Shattock and Mr Charles Bishop, instructed by Deighton Pierce Glynn

Defendant: Mr Richard Honey QC, Mr Mark Westmoreland Smith and Mr Charles Streeten, instructed by GLD